JUDGMENT Mohammad Nawaz, J. - This is an appeal filed by the accused challenging the Judgment and Order dated 13.12.2018/15.12.2018 passed by the Court of II Additional District and Sessions [Special] Judge, D.K., Mangaluru, in Special Case No. 207/2016, convicting and sentencing him for the offence under Section 5(m) punishable under Section 6 of the Protection of the Children from Sexual Offences Act, 2012 [hereinafter referred to as POCSO Act for short]. 2. I have heard the learned counsel appearing for the appellant-accused and the learned HCGP for the respondent-State. 3. The factual matrix of the case as put-forth by the prosecution is as under: A complaint was lodged by Smt. Vidya [PW1] on 25.07.2016 at about 10.00 p.m., at Konaje Police Station against the accused. It is stated by the first informant that she and her husband are living along with their two children. Her husband was doing centering work. On 23.07.2016, when she was giving warm water bath to her daughter, aged about 4 years, her daughter asked her not to pour warm water on her private part as she was having burning sensation. The first informant did not take it seriously. Again on the next day, when she was giving warm water bath to her daughter, she told her not to pour warm water on her private part as she was having burning sensation. Again in the afternoon when she was giving warm water bath to her daughter, she told her that she was having pain and burning sensation in her private part. When she enquired with her daughter, her daughter informed that on 23.07.2016 when she had gone to the house of the neighbour uncle [accused] for watching T.V., at that time, he lifted her and inserted his finger on her private part and tickled her. Thereafter, at about 2.00 p.m., when the first informant and her daughter were in the front yard, at that time, her daughter showed the accused and told her that he is the one who took her inside the house and inserted the finger in her private part and tickled her. Thereafter, at about 2.00 p.m., when the first informant and her daughter were in the front yard, at that time, her daughter showed the accused and told her that he is the one who took her inside the house and inserted the finger in her private part and tickled her. On the basis of the aforesaid complaint lodged by the mother of the victim girl, a case was registered in Crime No. 192/2016 of Konaje Police Station against the accused for the offence punishable under Sections 3(a) and 4 of the POCSO Act, 2012, by P.W. 11 and he issued Ex. P6-FIR to the jurisdictional Court and thereafter handed over the investigation to P.W. 13-Police Inspector. P.W. 13 proceeded with the investigation and conducted spot-mahazar as per Ex. P2. The victim girl was sent for medical examination and her medical examination was conducted by P.W. 4. The statement of the victim girl was recorded by the Magistrate under Section 164 of Cr.P.C. The articles collected during the course of investigation were sent for forensic examination. After completion of the investigation, charge-sheet was filed against the accused for the offence punishable under Sections 3(a) and 4 of the POCSO Act. Initially, charges were framed against the accused for the offence punishable under Sections 3(b) and 4 of the POCSO Act on 27.04.2017. Additional charges were framed for the offence punishable under Sections 5(m) and 6 of the POCSO Act. The accused pleaded not guilty to the charges framed against him and claimed to be tried. Before the trial Court, the prosecution got examined P.Ws. 1 to 15 and got marked Exs. P1 to 9 and M.O. 1. The accused denied all the incriminating evidence appeared against him while his statement was recorded under Section 313 of Cr.P.C. However, the accused did not choose to lead any evidence on his behalf. The learned Sessions Judge after considering the evidence and material on record, convicted and sentenced the accused for the offence under Section 5(m) punishable under Section 6 of the POCSO Act. Aggrieved by the same, the present appeal has been preferred. 4. The learned counsel appearing for the appellant/accused has vehemently contended that the impugned Judgment and Order passed by the trial Court is opposed to law, facts and probabilities of the case. Aggrieved by the same, the present appeal has been preferred. 4. The learned counsel appearing for the appellant/accused has vehemently contended that the impugned Judgment and Order passed by the trial Court is opposed to law, facts and probabilities of the case. The trial Court has committed grave error in convicting the accused though the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. He submits that on account of previous enmity, a false complaint was lodged against the accused. There is an inordinate delay in lodging the complaint. The medical evidence does not corroborate with the evidence of the prosecution witnesses. The victim has been tutored by her parents to give false evidence against the accused, which is evident from her cross-examination. He submits that the trial Court has erred in observing that the contradictions in a childs testimony should not be given the same effect as in the testimony of an adult by ignoring the admission given by the victim that she was tutored by her mother to give evidence as deposed by her. He submits that the evidence of the victim girl clearly show that she was acting under the influence of her parents and therefore, she is a tutored witness. Hence, it is not safe to act upon such evidence particularly when the medical evidence does not corroborate with the evidence of the victim. He therefore submits that the impugned Judgment and Order of conviction and sentence passed by the trial Court be set aside and the appeal be allowed. In support of his arguments, the learned counsel for the appellant has placed reliance on the following decisions: 1) (2012)8 Supreme Court Cases 73; K. Venkateshwarlu v. State of Andhra Pradesh . 2) 1995 Supreme Court Cases (Cri.) 182; Chhagan Dame v. State of Gujarat . 3) Thimmaiah v. State . Per contra, the learned HCGP has contended that the victim girl is aged about 4 years and she has clearly deposed against the accused regarding the sexual assault committed by him. Her evidence is further corroborated by the evidence of her parents-P.Ws. 1 and 2 as well as the neighbours-P.Ws. 3 and 5. P.W. 4 after conducting medical examination has issued Medical Report at Ex. P4 which further strengthens the case of the prosecution. Her evidence is further corroborated by the evidence of her parents-P.Ws. 1 and 2 as well as the neighbours-P.Ws. 3 and 5. P.W. 4 after conducting medical examination has issued Medical Report at Ex. P4 which further strengthens the case of the prosecution. He submits that there is nothing elicited in the cross-examination of these witnesses so as to disbelieve the case of the prosecution. Hence, he submits that the trial Court is justified in convicting and sentencing the accused. Accordingly, seeks to dismiss the appeal. 5. It is the specific case of the prosecution that on 23.07.2016, when the victim girl aged about 4 years had gone to the house of the accused to watch T.V., the accused inserted his finger in her private part and even prior to that he had inserted his finger in her private part and thereby committed aggravated penetrative sexual assault on her, punishable under Section 6 of the POCSO Act. 6. In order to bring home the guilt of the accused, the prosecution has got examined 15 witnesses and got marked 9 documents and M.O. 1. 7. P.W. 1 is the first informant and she is the mother of the victim girl. P.W. 2 is the father of the victim girl. P.W. 3 is a neighbour of the complainant as well as the accused. P.W. 4 is the Medical Officer who has examined the victim and issued Medical Report at Ex. P4. P.W. 5 is another neighbour of the complainant and the accused. P.W. 6 is the Woman Police Constable who on 26.07.2016 took the victim girl to the hospital for her medical examination. P.W. 7 is the Police Constable who took the accused on 26.07.2016 to the hospital for his medical examination. P.W. 8 is the Head Constable who transmitted the First Information Report [Ex. P6] along with the complaint [Ex. P1] to the jurisdictional Court on 26.07.2016. P.W. 9 is the Medical Officer who examined the accused and issued Report as per Ex. P7. P.W. 10 is the Police Constable who took the articles collected during the investigation to RFSL., Mangaluru. P.W. 11 is the Assistant Sub-Inspector who received the written complaint from P.W. 1 on 25.09.2016, marked as Ex. P1 and registered the case and issued FIR-Ex. P6. P.W. 12 is the Police Sub-Inspector, who recorded the statement of the victim girl on 26.09.2016. P.W. 11 is the Assistant Sub-Inspector who received the written complaint from P.W. 1 on 25.09.2016, marked as Ex. P1 and registered the case and issued FIR-Ex. P6. P.W. 12 is the Police Sub-Inspector, who recorded the statement of the victim girl on 26.09.2016. P.W. 13 is the Police Sub-Inspector who took over the investigation from P.W. 11 on 26.09.2016 and after completion of the investigation, filed charge-sheet. P.W. 14 is the Scientific Officer, who has issued the additional report as per Ex. P8. P.W. 15 is the victim girl. 8. P.W. 1 in her complaint lodged on 25.07.2016 has stated that on the evening of 23.07.2016, when she was giving warm water bath to her daughter aged about 4 year, her daughter complained to her that she was having burning sensation in her private part and told her not to put warm water. She did not take it seriously. Again on the next day when she was giving warm water bath to her daughter, she complained to her that she was having burning sensation in her private part. Again in the afternoon when she was giving warm water bath to her daughter, she complained that she is having burning sensation and pain in her private part. When she enquired with her daughter, she informed that on 23.07.2016 when she had gone to watch T.V. in the neighbour uncles house, he lifted her and inserted his finger in her private part. At about 2.00 p.m. when she and her daughter went to the front yard of the house, her daughter showed the accused and told that it is he who lifted her and inserted his finger in her private part. 9. P.W. 1 in her evidence has stated that the accused took her daughter inside his house and locked the door and attempted to commit sexual assault. She came to know about the incident on 25.07.2016 when she was giving warm water bath to her. In the beginning, her daughter did not tell anything. However, when she enquired, her daughter informed that the accused took her inside his house and inserted his finger in her private part and therefore, she was having pain. After that, they all enquired with the accused who denied the incident. Therefore, she went to the Police Station and lodged the complaint. 10. P.W. 2, the father of the victim girl. After that, they all enquired with the accused who denied the incident. Therefore, she went to the Police Station and lodged the complaint. 10. P.W. 2, the father of the victim girl. He has stated that their relationship with the accused was cordial and their daughter was going to his house. He came to know about the sexual assault committed by the accused from P.W. 1. When he had gone for work, P.W. 1 i.e., his wife informed about the incident over phone and he immediately came to the house. P.W. 1 informed him that when she enquired her daughter, she told that the accused had inserted his finger in her private part. 11. P.W. 3 has stated that the accused was residing in a rented house near the house of P.W. 2. Since there was no T.V. in the house of the victim girl, she was going to the house of the accused to watch T.V. He came to know about the incident from P.W. 1 that the accused had inserted his finger in the private part of the victim girl. P.W. 3 is also a panchwitness to the spot-mahazar Ex. P2. 12. P.W. 4 is the Medical Officer, who examined the victim girl and she has stated that on 26.07.2016 at about 11.00 a.m., Police brought the victim girl aged about 4 years and she conducted medical examination. P.W. 1, the mother of the victim girl had also come to the hospital. According to the say of P.W. 1, on 23.07.2016 her daughter complained that she was getting pain in her private part and on enquiry she told that, the neighbour uncle by telling her that he would give chocolate, tickled on her abdomen and private part. After conducting medical examination, P.W. 4 has issued Medical Report as per Ex. P4. 13. P.W. 5 has stated that about 2 years prior, when he returned to the house from work, the victim girl was crying and when he enquired with her she told him that the accused touched her private part and she was having pain. Further, she told that the accused had inserted his finger on her private part. 14. P.W. 15 is the victim girl. In her evidence she has stated that the accused had caused her pain while playing with her in the bed. Further, she told that the accused had inserted his finger on her private part. 14. P.W. 15 is the victim girl. In her evidence she has stated that the accused had caused her pain while playing with her in the bed. To the question put by the Court, she has stated that the accused caused pain to her private part. 15. Though in the charges framed against the accused, it is stated that even prior to 23.07.2016, the accused has committed similar act when the victim was visiting his house for watching T.V., however, the witnesses have not stated that even prior to 23.07.2016 the accused either committed similar act or that the victim complained that the accused was committing similar act even on earlier occasions. 16. P.W. 1 has stated that on 25.07.2015 when she was giving warm water bath to her daughter, she told her not to pour warm water on her private part because she was having burning sensation and when she enquired, her daughter informed that the accused took her inside the house and inserted his finger in her private part. The said incident is alleged to have taken place on 23.07.2015. 17. P.W. 4 has conducted medical examination on the victim on 26.07.2016 between 11.00 a.m. and 2.00 p.m. According to P.W. 4, the victim informed to her mother that when she went to watch T.V., the neighbour uncle by saying that he would give chocolate to her, touched her abdomen and the private part and tickled her. P.W. 4 has clearly stated that the history was given by P.W. 1 to her. If the same is taken into consideration, then before P.W. 4 it was not informed by P.W. 1 on 26.07.2016 that the accused had inserted his finger into the private part of her daughter. 18. P.W. 2 is the father of the victim girl. According to him, on 25.07.2016 when he returned from work, his wife informed him that while she was giving bath to her daughter, her daughter told her not to pour water on her private part and when she enquired with her, she informed that the accused had inserted his finger on her private part. According to him, on 25.07.2016 when he returned from work, his wife informed him that while she was giving bath to her daughter, her daughter told her not to pour water on her private part and when she enquired with her, she informed that the accused had inserted his finger on her private part. It is pertinent to see that according to P.W. 2, his wife P.W. 1 informed about the incident to him and nowhere P.W. 2 has stated that he has also enquired with his daughter about the incident and she informing him about the accused committing sexual assault on her. 19. P.W. 3 is a hearsay witness. According to him, it is P.W. 1 who informed him about the incident saying that the victim girl having complained to her while giving bath that the accused had inserted his finger in her private part and therefore, she was having pain. P.W. 3 has not stated that either he enquired with the victim girl or he enquired with P.W. 2 i.e., the father of the victim girl about the incident. 20. According to P.W. 5, he saw the victim girl crying and when he enquired with her, she informed that the accused had inserted his finger in her private part and there was pain in her private part. P.W. 5 has not stated as to when the victim girl complained to him about the incident and when he informed the same to the parents of the victim. When the victim has informed about the incident for the first time to her mother on 25.07.2016, then the evidence of P.W. 5 that the victim girl informed him about the incident is difficult to believe. P.W. 1 or P.W. 2 have not stated that their daughter informed about the incident to P.W. 5 and in turn, P.W. 5 informed the same to them. P.W. 5 has also not stated as to when he saw the victim girl crying and informed him about the incident. P.Ws. 1 and 2 have not stated that P.W. 5 enquired with their daughter regarding the incident and their daughter informed him about the same. The evidence of P.W. 5 therefore does not inspire confidence. 21. P.W. 4 in her Medical Report marked at Ex. P.Ws. 1 and 2 have not stated that P.W. 5 enquired with their daughter regarding the incident and their daughter informed him about the same. The evidence of P.W. 5 therefore does not inspire confidence. 21. P.W. 4 in her Medical Report marked at Ex. P4 has noted that, on observing the general behaviour of the child as well as the local genital examination, there are features suggestive that the child is being sexually abused, on various occasions and it is suggestive that other than the arrested alleged accused, the presence of more or more number of perpetuators cannot be ruled out. A provisional opinion was given by P.W. 4 stating that there are signs suggestive of recent overlong penetrative sexual assault on the child, with last penetrative attack being approximately 40-45 hours prior to the examination. 22. It is the contention of the learned counsel for the appellant that the Medical Examination was done on 26.07.2016 at about 2.00 p.m. According to the medical evidence, last penetrative attack was 40-45 hours prior to examination. Then the sexual assault on the child must be subsequent to 24.07.2016 and therefore, the case of the prosecution that on 23.07.2016, the accused has committed sexual assault cannot be accepted. 23. The incident is said to have occurred on 23.07.2016 between 11.00 a.m. and 12.00 noon. The medical examination is conducted on 26.07.2016 and according to the medical examination report, the penetrative attack has occurred 40-45 hours prior to the examination, then the same cannot be attributed to an incident, which is said to have occurred on 23.07.2016 because, as per the Medical Examination conducted by P.W. 4, the act should have been committed on 24.07.2016 and not on 23.07.2016. In this regard, it is relevant to see the cross-examination of P.W. 15-victim, wherein it is admitted by her that since she was having irritation, she had scratched her private part and even her mother had also scratched her private part while giving bath to her. 24. P.W. 15 has deposed before the Court that the accused while playing with her caused pain on her private part. In the cross-examination it was elicited from her by the defence that her parents and Police told her to say that the accused had troubled her. 24. P.W. 15 has deposed before the Court that the accused while playing with her caused pain on her private part. In the cross-examination it was elicited from her by the defence that her parents and Police told her to say that the accused had troubled her. It is also elicited that her mother scolded her and told her to state before the Police and accordingly she has stated before the Police. 25. According to the defence, the accused was working as a painter. P.W. 2-father of the victim was doing centering work and the accused was working under him. P.W. 2 was not paying the accused properly and in this regard there was a dispute. On account of the same, the accused was falsely implicated. Though P.Ws. 1 and 2 have denied the said suggestion, P.W. 15 in her cross-examination has admitted that in view of the dispute between the accused and her father, her mother told her to state that the accused had troubled her. 26. In the decision reported in K. Venkateshwarlu v. State of Andhra Pradesh [supra], the Honble Apex Court has observed that; 'The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers. A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat of coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth'. 27. In the case of Chhagan Dame v. State of Gujarat [supra] the Honble Apex Court has held that, the Court must carefully consider whether the child witness was under influence of any tutoring. 28. 27. In the case of Chhagan Dame v. State of Gujarat [supra] the Honble Apex Court has held that, the Court must carefully consider whether the child witness was under influence of any tutoring. 28. In the case of Thimmaiah v. State [supra], in a similar circumstances, this Court has held that, it is unsafe to rely on the evidence of the tutored child witness and held that on a close scrutiny, it is not trustworthy to rely and convict the accused. 29. It is well settled that the testimony of a child witness cannot be rejected per se. If it reposes confidence in the mind of the Court, then the same alone is sufficient to convict the accused. However, the testimony of a child witness needs to be evaluated with more caution and greater circumspection because the child is susceptible to be swayed by what others tell and thus a child witness is easy to be tutored. 30. In the case on hand, none of the prosecution witnesses including P.W. 15 have stated that even prior to the incident in question, the accused was committing sexual assault against the victim girl. According to the prosecution, on 23.07.2016, when the victim child had visited the house of the accused for watching T.V., he lifted her and put his finger on her private part. According to P.W. 4, P.W. 1 i.e., the mother of the victim girl informed about the history stating that the accused by telling her daughter that he will give chocolate, tickled on her abdomen and also on her private part. In her provisional medical opinion, P.W. 4 has stated that, last penetrative attack was approximately 40-45 hours prior to the examination. If that is taken into consideration, then it cannot be said that there was sexual assault on the victim child on 23.07.2016. 31. P.W. 15 has admitted in her cross-examination that since she had itching, she was scratching her private part and even her mother also scratched her private part while giving bath to her. According to Ex. P4-Medical Report, P.W. 4 has opined that there are features suggestive that the child was being sexually abused on various occasions and it was suggestive that, other than the arrested alleged accused, the presence of more or more number of perpetuators cannot be ruled out. According to Ex. P4-Medical Report, P.W. 4 has opined that there are features suggestive that the child was being sexually abused on various occasions and it was suggestive that, other than the arrested alleged accused, the presence of more or more number of perpetuators cannot be ruled out. However, it is not established that even prior to the incident in question, the accused has committed such sexual assault on the victim child. The said opinion given by P.W. 4 cannot be attributed to the accused. 32. In the light of the decision noted supra, as observed in the evidence of P.W. 15, she has clearly deposed that at the instance of her mother-P.W. 1, she has stated before the Police that the accused troubled her. Her mother scolded her and because of that, she stated that the accused had troubled her. She has further stated that except before the Police she has not stated before any one that the accused had troubled her. She has admitted in the cross-examination that in view of the dispute between her father and the accused, her mother told her to state that the accused troubled her. 33. Having perused the entire evidence on record and particularly the evidence of P.W. 15, it is difficult to accept the case of the prosecution as put-forth by it. The attendant circumstances would clearly go to show that the victim child was acting under the influence of threat to give evidence before the Court. The evidence of P.W. 15 and other prosecution witnesses does not repose any confidence and the victim girl having found to be tutored to tell that the accused has committed sexual act on her, I am of the considered view that her evidence is not trustworthy to rely upon. Hence, it is not fair to act upon the evidence of P.W. 15. Careful evaluation of the evidence of P.W. 15 in the background and contents of other evidence on record, I am of the opinion that the same is not trustworthy to rely and convict the accused. The evidence produced is not cognate enough to prove the alleged incident on the victim. Thus, the prosecution has failed to convincingly establish the guilt of the accused beyond the shadow of all reasonable doubt. 34. The trial Court without taking into consideration the above noted facts has come to an erroneous conclusion and convicted the accused. The evidence produced is not cognate enough to prove the alleged incident on the victim. Thus, the prosecution has failed to convincingly establish the guilt of the accused beyond the shadow of all reasonable doubt. 34. The trial Court without taking into consideration the above noted facts has come to an erroneous conclusion and convicted the accused. For the foregoing reasons, the impugned Judgment and Order of conviction and sentence passed by the trial Court is liable to be set aside. Accordingly, I pass the following: ORDER The appeal is allowed. The Judgment and Order dated 13.12.2018/15.12.2018 passed by the Court of II Additional District and Sessions [Special] Judge, D.K., Mangaluru in Special Case No. 207/2016 is hereby set aside. The accused/appellant is hereby acquitted of the offence under Section 5(m) punishable under Section 6 of the POCSO Act. He shall be released forthwith, if not required in any other case. If the accused/appellant has deposited any fine amount, the same shall be returned to him. The operative portion of the Judgment shall be communicated to the concerned Jail Authority.