JUDGMENT N B Suryawanshi, J. - The appellant by this appeal challenges his conviction under Sections 10 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and under Section 354-A (2) of the Indian Penal Code and the sentence of rigorous imprisonment for 5 years and 6 months and total fine of Rs.6,000/- was imposed on him with default clause by the learned Additional Sessions Judge, Amravati in Sessions Trial No.295/2016. 2. The prosecution case, in short, is that the appellant-accused, at the relevant time, was a teacher and was taking tuition of primary students at his house. On 4.10.2016 at about 6.00 pm, the victim and her five batch-mates attended the tuition at the house of the accused. A test of all the students was conducted by the accused. After assessment of the paper, the accused took the victim, aged about 10 years, in the inside room under the pretext that he would show her mistakes. In the room, after lifting the T-Shirt of the victim, the accused sucked the breast of the victim. The victim went to her house weeping and narrated the incident to her parents. Her father took her to the Police Station and lodged a report. On the basis of a report, Crime No.215/2016 for offences under Section 354- A of the Indian Penal Code and under Sections 8, 10 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 (for short, the Act of 2012) was registered at Mangrul Dastagir Police Station. Investigation was conducted, spot panchanama was prepared and accused was arrested on 5.10.2016. Thereafter, the statements of the witnesses were recorded. The statements of the victim and some of her tuition-mates were recorded under Section 164 of Cr.P.C. After completion of investigation, charge-sheet was filed against the accused. 3. Charge under Section 354-A (1)(i)(ii) of the Indian Penal Code and under Sections 10 and 12 of the Act of 2012 was framed against the accused. The accused denied the charge, his defence was of total denial. He claimed that he was falsely implicated. The learned Trial Court, after recording the evidence, convicted the accused. Hence, the present appeal. 4. Heard the learned advocate for the appellant and the learned APP for the respondent-State. 5. The learned advocate for the appellant submitted that the prosecution evidence does not inspire confidence. He claimed that he was falsely implicated. The learned Trial Court, after recording the evidence, convicted the accused. Hence, the present appeal. 4. Heard the learned advocate for the appellant and the learned APP for the respondent-State. 5. The learned advocate for the appellant submitted that the prosecution evidence does not inspire confidence. There was delay in recording the statements of the witnesses. The incident has taken place on 4.10.2016 and the statements of the witnesses under Section 161, Cr.P.C. were recorded belatedly, so also the statements under Section 164, Cr.P.C. Though the victim alleges that she lodged oral report, in fact, the typed complaint was lodged. He pointed out that the statements of father and mother of the victim were recorded on 5.10.2016, whereas the statements of the victim and her tuition-mates were recorded on 10.11.2016. In their statements, there is no reference that the wife and the daughter of the appellant were not present on the day of incident. For the first time on 14.11.2016, this was stated by victim in her statement under Section 164, Cr.P.C. According to him, the evidence of the victim and PW-2 does not inspire confidence. He further submitted that the appellant has examined DW-1, the tuition-mate of the victim and has proved his defence. According to him, PW-2 is a tutored witness. By pointing out the admission to the effect that on the day of incident, there was mahaprasad in the temple situated in front of the house of appellant and the villagers were sitting on the road for having mahaprasad. He submitted that not a single independent witness was examined by the prosecution in support of its case. According to him, the appellant has successfully discharged his burden under Section 29 of the Act of 2012, during the cross-examination of the prosecution witnesses and by examining the defence witness. He therefore submitted that the prosecution has failed to prove the offence against the appellant beyond reasonable doubt and the appellant may be acquitted. 6. In support of his argument, the learned advocate for the appellant has relied on the following decisions : 1. Dudh Nath Pandey .vs. State of Uttar Pradesh, (1981) AIR SC 911. 2. Ganesh Bhavan Patel and others .vs. Statement of Maharashtra, (1979) AIR SC 135. 3. Jagjit Singh .vs. State of Punjab, (2005) 3 SCC 689 . 4. 6. In support of his argument, the learned advocate for the appellant has relied on the following decisions : 1. Dudh Nath Pandey .vs. State of Uttar Pradesh, (1981) AIR SC 911. 2. Ganesh Bhavan Patel and others .vs. Statement of Maharashtra, (1979) AIR SC 135. 3. Jagjit Singh .vs. State of Punjab, (2005) 3 SCC 689 . 4. Navin Dhaniram Baraiye .vs. The State of Maharashtra, (2018) CriLJ 3393. 7. Per contra, the learned APP vehemently submitted that the sole testimony of the victim inspires confidence and is sufficient to warrant conviction of the appellant. The appellant has failed to bring on record that there was no latrine at the house of victim, therefore, his defence cannot be accepted. Defence witness has admitted that there was dispute between his father and the father of victim, therefore, his testimony should be disbelieved. He further submitted that the appellant has failed to prove that his wife and daughter were at home at the time of incident. According to him, since the victim has proved the act committed by the appellant, the learned Trial Court was justified in convicting the appellant. He, therefore, submitted that there is no substance in the appeal and the same is liable to be dismissed. 8. In support of its case, the prosecution has examined five witnesses. PW-1 is the victim. She has stated that at the time of incident, she was studying in 6th standard. She was going to the appellant for tuition from 5.00 pm to 7.00 pm. Dhruv Vaidya, Om Gade, Jaya Kamble and Aachal Kamble were also attending the tuition along with her. On 4.10.2016, she went to the house of appellant at about 5.00 pm for tuition. All her tuition-mates were present there. A test was conducted by the appellant and they were sitting in the porch i.e. open portion in front of the house of the appellant. The appellant told her that he would tell about her mistakes and he took her in the inside room. The appellant then raised her T-Shirt and sucked her breast. She, therefore, came out and went home weeping. Her parents and sister were present at home. She narrated the incident to her parents. Her father then took her to the Police Station. One lady police present there, who recorded her report. The report was reduced into writing as per her say. She, therefore, came out and went home weeping. Her parents and sister were present at home. She narrated the incident to her parents. Her father then took her to the Police Station. One lady police present there, who recorded her report. The report was reduced into writing as per her say. She put her signature thereon. She identified the original report (Exh.20) lodged by her. She also identified FIR (Exh.21). That night, she was taken to the Government Hospital for her medical check-up. Thereafter, on the next day, police came to her house and she had shown them the spot of incident. She deposed that at the time of showing the spot of incident, she herself, her aunt, police and two panch witnesses were present. Thereafter, after one month, police came to their house, out of them one woman police had enquired with her. At that time, her parents were present there. Her statement was recorded. She and her mother signed the statement. The statement was in the question answer form. At that time, enquiries were also made with Jaya Kamble and Dhruv Vaidya. While recording their statements, video shotting was done. Thereafter, she was called in the Court and there, her statement u/s 164, Cr.P.C. (Exh.22) was recorded. She stated her birth date was 3.12.2005. She identified the appellant in the Court. During her cross-examination, she deposed that she had seen the house of the accused from inside. The said house was of one room. She admitted that in that one room one bed and kitchen articles were there. There was a varandah in front of the door of the house of the appellant and the tuition used to be taken in the varandah. She denied that tuition used to be taken by the wife of the appellant. She admitted that the appellant was having one daughter namely Janhavi, aged about 17 years and Janhavi used to remain present at the house. The wife of the appellant used to do household work, therefore, she also used to remain present at the house. She admitted that one boy namely Krish Lawane was attending the tuition class along with her and his health was weak. She admitted that sometimes due to Krish's health reasons, the appellant used to allow him to sit in the room for tuition. She admitted that one boy namely Krish Lawane was attending the tuition class along with her and his health was weak. She admitted that sometimes due to Krish's health reasons, the appellant used to allow him to sit in the room for tuition. She further admitted that in front of the house of the appellant, there was a temple of Vitthal Rukhmini and there were always programmes going on in the said temple. On the date of the incident i.e. on 4.10.2016 there was a programme of mahaprasad (meal) in the said temple. She further admitted that persons were sitting in row for mahaprasad in front of the house of appellant. The said programme of mahaprasad in the temple started in the morning and it was going on till night. She also admitted that there was a house of Vilayatkar near her house. Vilayatkar used to get intuition of snake. Many people used to visit him. She admitted that the wife of the appellant had complained to the Gram Panchayat against Vilayatkar that he was spreading superstitions in the village and there was a quarrel between Vilayatkar and the appellant. She stated that she knew the difference between a written paper and a typed paper. When she was shown Exh.45 from the record, she admitted that it was a typed report and not a written report. She admitted that the words, 'statement', 'spot panchanama' were not taught in the school, but police told her the said words. She further admitted that police had come to her along with the notice. At that time, they told her that she had to give a statement. She admitted that she did not state in her police statement that, the appellant told her that he would tell about her mistakes and he took her in the inside room. Omission that "at the time of incident, wife and children of appellant were not at home" was brought on record in her cross. She denied the suggestion that she was deposing falsely and that her father abused the appellant and his wife, therefore, her father felt that the appellant might lodge a report against him and because of that, a false case was lodged by her. 9. Witness No.2 was the tuition-mate of the victim. His deposition was recorded in question answer form. He deposed that he was studying in 6th standard. 9. Witness No.2 was the tuition-mate of the victim. His deposition was recorded in question answer form. He deposed that he was studying in 6th standard. At the time of incident, he was studying in 4th standard and was going to the appellant for tuition. The timings of the tuition was 7.00 am to 8.00 am and 6.00 pm to 8.00 pm in the evening. He deposed that on 4.10.2016, there was a test in the tuition class. He went for tuition on that day at 6.00 pm. They were sitting on the porch for tuition. He himself, his younger brother, the victim and other tuition-mates were present in the tuition class. On being asked what happened next, he kept mum for a long time. When he was further asked where victim had gone, he did not answer. When asked where appellant had gone, he replied that the appellant had taken test. On being asked, what happened thereafter, he did not answer the question. At 12.35 pm, therefore, his examination-in-chief is adjourned till 1.00 pm. At 1.00 pm again, when the questions were put to him, as to who was with him at that time, he replied that sister of Achal was with them at that time. On being asked what happened next, he replied that appellant had checked the paper of victim. The next question asked what happened thereafter, he replied, 'and', thereafter, he kept mum. When asked what happened thereafter, he replied that victim had got less marks. He did not give any answer thereafter. His further examination-in-chief was therefore adjourned till 3.11.2018. 10. Thereafter, his further examination-in-chief was recorded on 29.12.2018. He was asked what was the time of tuition, he replied that he went for tuition at 5.00 pm. After the test was over, appellant checked the paper and he told the victim that he would tell the victim what wrong was done by her and took her inside. Then thereafter victim came out weeping. Thereafter, the appellant asked victim whether she wanted to go home, the victim replied in affirmative and went home crying. Thereafter, the appellant dismissed the class and all students went to their respective homes. He stated that police had enquired with him. One police madam, one sir and his father were present at the time of enquiry. Thereafter, the appellant asked victim whether she wanted to go home, the victim replied in affirmative and went home crying. Thereafter, the appellant dismissed the class and all students went to their respective homes. He stated that police had enquired with him. One police madam, one sir and his father were present at the time of enquiry. He further stated that he went to the Court for telling about the appellant and his statement was reduced into writing as per his say and he signed the statement after reading it. His statement u/s 164 of Cr.P.C. (Exh.27) was shown to him and he identified his signature on it. During cross-examination, he admitted that Krish was his tuition-mate and he was always ill and the appellant used to make him sit in the inside room. He volunteered that sometimes Krish used to sit outside. He further admitted that the daughter of appellant always used to remain at home in the evening. He identified his father and the father of victim sitting together in the Court premises. He admitted that father of victim, he and his father came together in the Court. When he was questioned that on earlier occasion, he had stated that he went for tuition from 6.00 pm to 8.00 pm, but on the day of deposition, he told that he went for tuition at 5.00 pm and when asked out of his statements which one is false, he replied that he went to tuition from 6.00 pm to 8.00 pm was false. He further admitted that at the time of incident, the timing of the school was from 10.00 am to 5.00 pm. When asked that after the school, he used to take wash and refreshment and then go for tuition, he admitted the same, but he volunteered that sometimes he used to come 10 to 15 minutes early from the school. When he was confronted with photo copy of his test paper, on which the timing 6.30 to 7.30 was mentioned by him, he acknowledged that it was his paper, he volunteered that he has mentioned his full name on that paper. When he was confronted with photo copy of his test paper, on which the timing 6.30 to 7.30 was mentioned by him, he acknowledged that it was his paper, he volunteered that he has mentioned his full name on that paper. He denied the suggestion that on the date of incident, when the tuition was going on, father of victim came to the house of appellant and abused appellant and his wife and when he was asked Question : "whether it is correct that at that time Sir and his wife tried to give understanding to the father of the victim but due to consumption of liquor he did not listen.? Answer : I do not know. He stated that, it is correct to say that, on that day the police madam enquired with him, other tuition-mates and the victim on the same day. He was unable to explain as to why the statement "the test of victim was checked and I will tell you what wrong is done by you" and "on asking the victim, whether she wants to go to home, upon which, she replied yes and went to home by crying", were not there in his previous statement. He denied the suggestions that he was deposing at the instance of his father and victim's father. 11. PW-3 is the father of victim. He deposed that the date of birth of victim was 3.12.2005. His daughter was going for tuition to appellant and the timing of the tuition was 5.00 pm to 7.00 pm. The incident took place on 4.10.2016 at 6.15 pm. On that day, the victim came home crying. When asked, she disclosed that the appellant called her inside, lifted her T-Shirt and sucked her milk. Therefore, he took his daughter to the Police Station Mangrul-Dastgir. There the victim lodged a report against the appellant. The said report was reduced into writing and after typing, it was given for perusal. The victim had signed it. Then they went to Govt. Hospital for medical examination of victim. Thereafter, on 5.10.2016 police came to their village and prepared spot panchanama. The spot was shown by the victim. Thereafter, his statement was recorded. During cross, he stated that the distance between his house and the Police Station is 12 kms and half an hour is required to reach the Police Station from his house. Thereafter, on 5.10.2016 police came to their village and prepared spot panchanama. The spot was shown by the victim. Thereafter, his statement was recorded. During cross, he stated that the distance between his house and the Police Station is 12 kms and half an hour is required to reach the Police Station from his house. He deposed that he did not know whether he was accosted by the appellant and his wife as he used to perform nature's call outside in open place. He did not know whether, on that count, he abused both of them or not. He did not know that he abused the appellant and on that count, the appellant told him that he would lodge a report against him. He denied the suggestion that no incident, as alleged by him, had taken place. 12. PW-4 Narendra Chaudhari was the Secretary of Gram Panchayat, who produced on record the birth certificate of the victim (Exh.43) and on-line birth certificate (Exh.44). As per the birth certificate, the date of birth of victim was 3.12.2005. 13. PW-5 Rajendra Hote is the Investigation Officer. He deposed that on 5.10.2016, he was attached to Mangrul-Dastgir Police Station as PSI. He conducted the investigation in the said matter. He prepared the spot panchanama (Exh.48) on 5.10.2016. Thereafter, he recorded the statements of the witnesses and after completion of investigation, he filed the chargesheet. In the cross-examination, he admitted that he did not collect the practice papers of the test examination from the appellant. He did not record the statements of the persons residing in the house of the appellant. He further admitted that the statement of the victim and the statements of the tuition-mates were not recorded in his presence. 14. One of the tuition-mate of the victim was examined as a defence witness. His deposition was recorded in question answer form. He stated that he used to go to the appellant for tuition and the victim used to come there for tuition. He gave the names of tuition-mates, who used to come for tuition. On being asked about what happened on the day of the incident, he stated that they all were sitting on the porch for tuition. At that time, father of the victim came after consuming liquor and was abusing the appellant. On that day, appellant, his wife and daughter were present. On being asked about what happened on the day of the incident, he stated that they all were sitting on the porch for tuition. At that time, father of the victim came after consuming liquor and was abusing the appellant. On that day, appellant, his wife and daughter were present. At that time, father of victim told appellant that he should do work of teaching and should not teach how to clean buttocks after answering natures call. He said that whether for that purpose, he was sending his daughter to the appellant for tuition. On being asked, as to what talks were going on about latrine, he answered that the appellant told them that they should not answer nature's call in the outside area and the students should also tell their family members not to go in the outside area for answering the nature's call. For the same reason, the father of the victim quarreled with the appellant. At that time, the appellant told him that they would talk on the next day. The appellant also asked the father of the victim as to whether he had consumed liquor, the father of victim replied that he had not consumed liquor with the appellant's money. At that time, the wife of the appellant told the victim's father that he should not abuse, as small children were sitting there. On that, the victim's father told the appellant's wife not to act over-smart. Thereafter, the appellant stood up from the chair and told the victim's father to leave, otherwise he would lodge a report against him. At that time, the father of the victim told the victim that they should lodge a report. Thereafter, the victim went home along with her father. In the cross-examination, he stated that some people from the village did not have latrine and bathroom in their houses. He denied that he was deposing at the instance of the appellant and that on the day of deposition, he had come along with the appellant. He admitted that there was a dispute between his father and victim's father. He was asked a specific question : Question No.32 - "whether it is correct that the day on which the victim has lodged report, except you all students and Sir, nobody was present there." Answer - No. Madam and Tai were also present there. He admitted that there was a dispute between his father and victim's father. He was asked a specific question : Question No.32 - "whether it is correct that the day on which the victim has lodged report, except you all students and Sir, nobody was present there." Answer - No. Madam and Tai were also present there. He denied that on the day of incident victim went home crying. When it was suggested that after the incident, the appellant did not demand tuition fee from him, he replied that after the incident, he did not go for tuition. He further denied that he used to behave as per the say of appellant and he was deposing at the behest of appellant. He further admitted that whatever he had deposed in the Court, he had deposed for the first time. He also admitted that police did not record his statement. He categorically denied that he was deposing falsely that at the time of the incident, Madam and Tai were present at that place. 15. It transpires from the evidence on record that the incident has taken place on 4.10.2016 at about 6.00 pm. The FIR was lodged by the victim on 4.10.2016 at about 23.06 hours. The oral report (Exh.20) is a type written copy, on the basis of which, the FIR (Exh.21) came to be registered. As per the evidence of PW-3 - father of victim, half an hour is required for reaching the Police Station. As per the evidence of the victim, immediately after the incident, she went to her house and her parents and sister were present there. She narrated the incident to them and her father immediately took her to the Police Station for lodging a report. PW-3 has also stated the same thing in his evidence. If they immediately went to lodge the report, then the report ought to have been lodged within 1 or 1 hours after the incident i.e approximately at 7.00 to 7.30 pm. However, the report is lodged at 23.00 hours. The delay in lodging the report/FIR is not explained by the prosecution. 16. It appears from the record that on 5.10.2016, spot panchanama (Exh.48) was conducted and the spot was shown by the victim. On that day, the statements of father PW-3 and mother of the victim were recorded, but the statement of the victim was not recorded. The delay in lodging the report/FIR is not explained by the prosecution. 16. It appears from the record that on 5.10.2016, spot panchanama (Exh.48) was conducted and the spot was shown by the victim. On that day, the statements of father PW-3 and mother of the victim were recorded, but the statement of the victim was not recorded. The statements of the tuition-mates of the victim for the first time were recorded on 10.11.2016 i.e. belatedly after more than 35 days after the incident. Their statements under Section 164 of the Cr.P.C. were recorded on 14.11.2016 i.e. belatedly after about 40 days of the incident. This inordinate delay is not explained by the prosecution. 17. In Jagjit Singh (supra), the statement of the victim was recorded three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. In these facts, the argument of the defence was accepted that, that period was utilized by the prosecution for tutoring the witness. The Hon'ble Apex Court, in that case, gave a benefit of doubt to the accused. 18. In Ganesh Bhavan Patel (supra), it was held that undue delay on the part of the investigating officer in recording the statements of eyewitnesses rendered the prosecution case doubtful. Although these witnesses were available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements u/s 161 of Cr.P.C. were recorded on the next day. It was, therefore, held that the delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. 19. Keeping in mind the above ratio, in the case in hand, the delay of more than a month in recording the statements of tuition-mates of the victim u/s 161 of Cr.P.C. and the delay of approximately 40 days in recording the statements of the tuition-mates of the victim u/s 164 of Cr.P.C. renders the entire prosecution case doubtful. 20. The tuition was being conducted on the verandah in front of the room. 20. The tuition was being conducted on the verandah in front of the room. The victim has admitted that the appellant was having one daughter by name Janhavi, who was aged about 17 years and she used to remain present in the house. The wife of the appellant used to do the household work and therefore she also used to remain present in the house. If this was the position, then the allegations of the victim appear to be improbable as, according to the prosecution story, the victim was taken inside the room where the alleged act was committed by the appellant. The victim, in the cross-examination, has admitted that she had seen the house of the appellant from inside. The house consisted of one room. In that room, there was one bed and some kitchen articles. The spot panchanama (Exh.48) confirms the said position that there was only one room. 21. These aspects create serious doubt about the prosecution story. The victim and PW-2 her tuition-mate have not stated in their statements recorded u/s 161 of Cr.P.C. that the wife and daughter of the appellant were not present at home at the time of incident. This vital omission is brought on record in their cross-examination. This important fact was for the first time stated by PW-1 victim and PW-2 in their statements u/s 164 of Cr.P.C. which were belatedly recorded after about 45 days of incident, hence it does not help the prosecution case. This also indicates that they both are not telling the truth before the court and they are improving their version. It is noteworthy that in all the statements of the tuition-mates of the victim recorded u/s 164 of Cr.P.C. the name of the person making the statement is mentioned as 'Kalyani'. 22. The victim has also admitted that in front of the house of the appellant, there was a temple of Vitthal Rukhumini and on the day of the incident, a programme of mahaprasad was going on in the said temple. All the persons were sitting on the road in front of the house of the appellant for having mahaprasad. In that case, the prosecution ought to have examined independent witness to corroborate its story that the victim went away crying to her house. Not a single independent witness is examined by the prosecution. Therefore, adverse inference needs to be drawn against the prosecution. In that case, the prosecution ought to have examined independent witness to corroborate its story that the victim went away crying to her house. Not a single independent witness is examined by the prosecution. Therefore, adverse inference needs to be drawn against the prosecution. The material omissions to the effect, that the appellant told her that he would tell her about her mistakes and he took her inside the room and that at the time of incident, the wife and children of the appellant were not at home, were brought on record during the cross-examination of the victim, which go to the root of the matter. 23. So far as evidence of PW-2, the tuition-mate of the victim is concerned, it is clear from the record that on the day of recording of his examination-in-chief on 6.10.2018, twice he did not depose in favour of the prosecution. Though leading questions were put to him during his examination-in-chief, he kept mum and did not disclose what happened on the day of incident. Even after the in-chief was deferred and was kept in second session, he did not disclose anything in respect of alleged incident. Therefore, his examination-in-chief was deferred till 3.11.2018. Thereafter, as per the record, his further in chief was recorded on 29.12.2018. At that time, he has supported the case of the prosecution. Thus, there is every possibility that he was tutored in the meanwhile and then he has supported the prosecution case. He tried to improve his version by stating that he went for tuition at 5.00 pm. He admitted in his statement that he went for tuition from 6.00 pm to 8.00 pm was false. He also admitted that the timing mentioned by him on his paper was 6.30 to 7.30. Then it is difficult to believe the prosecution version that the incident took place at about 6.00 pm. When the paper was held between 6.30 pm to 7.30 pm, then the incident could not have taken place at 6.00 pm. He has feigned ignorance that the appellant and his wife tried to explain to the victim's father but as he had consumed liquor, the victim's father did not listen. When the paper was held between 6.30 pm to 7.30 pm, then the incident could not have taken place at 6.00 pm. He has feigned ignorance that the appellant and his wife tried to explain to the victim's father but as he had consumed liquor, the victim's father did not listen. The omissions to the effect that the test of victim was checked and the appellant told her that he would tell her what wrong was done by her and that on asking the victim, whether she wanted to go home and when she replied yes, she went home crying were brought on record in his evidence. All these aspects create serious doubt about the veracity of this witness and they indicate that he is not a reliable witness. 24. PW-3'S evidence also does not inspire confidence in view of the statements made by him during the cross-examination that he did not know whether he was accosted by the accused and his wife on the count that he used to go outside for attending the nature's call. He also stated that he did not know, whether on that count, he abused both of them or not, and on that the appellant told him that he would lodge a report against him. These statements indicate that he is not telling the truth before the court and, therefore, no reliance can be placed on his testimony. 25. The investigating officer has failed to collect the practice papers of the test from the appellant, most probably because the time 6.30 to 7.30 was written on the said paper and that would falsify the prosecution case that the incident had taken place at 6.00 pm. He has, without any justifiable reason, failed to record the statements of the wife and daughter of the appellant. 26. The defence witness one of the tuition-mate of the victim, examined by the appellant, has supported the defence version. He has specifically deposed in the in-chief as well as in the cross-examination that the wife and daughter of the appellant were present at the time of alleged incident. Merely because his statement was not recorded by the police, his testimony cannot be discarded. It has come in the evidence of PW-1 and PW-2 that the said defence witness was their tuition-mate and he had attended the tuition on the day of incident. Merely because his statement was not recorded by the police, his testimony cannot be discarded. It has come in the evidence of PW-1 and PW-2 that the said defence witness was their tuition-mate and he had attended the tuition on the day of incident. His presence, at the time of incident, therefore cannot be doubted. His evidence could not be shattered in the cross-examination. Though he has candidly admitted that there was dispute between his father and the victim's father, that alone cannot be a ground to discard his testimony, which otherwise inspires confidence. 27. In Dudh Nath Pandey (supra), the Hon'ble Supreme Court held that "defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses". 28. Though there is presumption u/s 29 of the said Act of 2012 under which the court has to presume that the accused has committed the offence for which he is charged under the said Act, unless the contrary is proved, the said presumption operates only upon the prosecution first proving the foundational facts against the accused beyond reasonable doubt. 29. In Navin Baraiye (supra), this court had an occasion to consider the presumption u/s 29 of the Act of 2012 by referring to the decisions of various High Courts, this Court held ; "23. The above quoted views of the Courts elucidate the position of law insofar as presumption under Section 29 of the POCSO Act is concerned. It becomes clear that although the provision states that the Court shall presume that the accused has committed the offence for which he is charged under the POCSO Act, unless the contrary is proved, the presumption would operate only upon the prosecution first proving foundational facts against the accused, beyond reasonable doubt. Unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under the POCSO Act, the presumption under Section 29 of the said Act would not operate against the accused. Unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under the POCSO Act, the presumption under Section 29 of the said Act would not operate against the accused. Even if the prosecution establishes such facts and the presumption is raised against the accused, he can rebut the same either by discrediting prosecution witnesses through cross-examination demonstrating that the prosecution case is improbable or absurd or the accused could lead evidence to prove his defence, in order to rebut the presumption. In either case, the accused is required to rebut the presumption on the touchstone of preponderance of probability." 30. Coming to the facts of the case in hand and on marshalling the evidence of the prosecution on record, it is clear that the evidence of PW-1 victim and PW-2 as well as PW-3 does not inspire confidence. The prosecution has failed to prove its case beyond reasonable doubt. The prosecution has failed to discharge its initial burden of proving the alleged incident and the prosecution case appears to be improbable. Hence, the presumption u/s 29 of the Act of 2012 would not operate against the appellant. Even if, the presumption is drawn against the appellant, for the sake of argument, the appellant has discharged the burden during the cross-examination of the prosecution witnesses and by examining the defence witness. 31. The learned Trial Court has failed to consider the delay in recording u/s 161 of Cr.P.C. statements of the witnesses and has failed to appreciate the evidence of the prosecution in the proper perspective. The learned Trial Court has also failed to give due weightage to the testimony of the defence witness and has wrongly convicted the appellant. The impugned judgment therefore is unsustainable in law and in the facts of the present case. 32. For the aforestated reasons, the conviction of the appellant is unsustainable and the appeal filed by the appellant deserves to be allowed. Hence, the following order : O R D E R i] Criminal Appeal No.105/2020 is allowed. ii] The impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Amravati in Sessions Trial No.295/2016 thereby convicting the appellant/accused under Sections 10 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and under Section 354-A (2) of the Indian Penal Code is hereby quashed and set aside. ii] The impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Amravati in Sessions Trial No.295/2016 thereby convicting the appellant/accused under Sections 10 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and under Section 354-A (2) of the Indian Penal Code is hereby quashed and set aside. iii] The appellant-accused is acquitted of all the charges. iv] The bail bond of the appellant stands cancelled. v] The accused, who is in jail, shall be released forthwith, if not required in any other offence. vi] Fine amount, if any, deposited by the appellant be refunded to him. vii] The appellant shall furnish bail bond of Rs.15,000/- (Rs. Fifteen Thousand) with one or two sureties in the like amount in terms of Section 437-A of the Code of Criminal Procedure, before the Trial Court.