JUDGMENT : (Syed Waiz Mian, J.) : 1. By means of this Criminal Misc. Leave Application, on behalf of the State, leave for filing Government Appeal, against the impugned judgment and order of acquittal of accused/respondent Firoz, dated 06.05.2019, passed by the Special Court (POCSO Act, 2012)/VIIIth Additional Sessions Judge, Meerut, arising out of Criminal Case No. 498 of 2016, State vs. Firoz, is being sought. 2. Heard Shri Om Prakash Mishra, Learned A.G.A. for the State. 3. In brief, the prosecution story is that informant, Rajendra, informed that 3-4 days earlier his wife had gone to Sisauli. His three children, were present in his house; on 12.10.2016, her daughter Sangeeta, aged about 17 years, at about 10 p.m. had gone to drink water at the tap installed out side his house; all of a sudden accused/respondent, having knife in his hand, came behind her and trapped her mouth and brought her in vacant room of his house, where he committed rape upon her; she informed the informant telephonically; when he come back, she narrated the entire story to him, whereafter he lodged an First Information Report, registered as Case Crime No. 267 of 2016, under Sections-342, 376 I.P.C. and Section ¾ of Protection of Children From Sexual Offences Act, 2012, at Police Station-Rohta, District-Meerut. 4. Upon entrustment, the investigating officer took over charge of the investigation and recorded the statements of the informant, accused, and of victim under Section 161; statement of victim was also got recorded under Section 164 Cr.P.C.; he also prepared site plan of the alleged place of occurrence; during investigation, the victim was put to medical examination, not only to ascertain her age but also to ascertain any mark of injury on her person and status of alleged rape. 5. Upon collecting the incriminating evidence against the accused/respondent, for offences under Sections 342, 376 I.P.C. and Section ¾ of Protection of Children From Sexual Offences Act, 2012, Investigating Officer forwarded the charge sheet under Section 173 (2) Cr.P.C. to the Court concerned. Upon receiving the charge sheet and other material, learned Court below in exercise of powers enshrined under Section 190 (2) Cr.P.C., took cognizance of the aforestated offences against the accused/respondent and accordingly summoned him. 6. Learned trial Court vide order dated 15.01.2018 charged the accused and the same were explained and read over to him; he denied the charges and claimed trial. 7. 6. Learned trial Court vide order dated 15.01.2018 charged the accused and the same were explained and read over to him; he denied the charges and claimed trial. 7. Prosecution to prove it’s case, examined informant-P.W.-1 Rajendra, P.W.-2 victim-Sangeeta, P.W.3-Smt. Nirmala w/o Rajendra, P.W.-4-Dr. Isha Soni, P.W.-5 Dr. Sangeeta, P.W.6-Head Constable Police-Deepa Sharma, P.W.-7 Bhole, victim’s uncle and P.W.8- investigating officer, Sub Inspector-Rajendra Singh. 8. Statements under Section 313 of Cr.P.C. of accused/respondent was also recorded. He in his statement said that the evidence of P.W.-1, P.W.-4, was false and statement of P.W.-3 victim was given under the pressure of her uncle Bhole and the victim told about the occurrence to Doctor was also under the pressure of her uncle. He has also said that he has been falsely implicated in this case upon pressure exerted by Bhole because prior to the present case a dispute regarding transaction of money was existing between him and Bhole and due to pre-existing enmity he has been falsely implicated in this case by Rajendra, brother of Bhole. He claims that he is innocent and he denied his complicity in the crime; he declined to adduce evidence in his defence. 9. Upon hearing the submissions on behalf of the parties, and scanning the records, learned trial Court found that the prosecution has failed to prove the charges under Section 342, 376 and ¾ of Protection of Children from Sexual Offences Act, thus, trial Court did not find the accused guilty under the aforesaid sections and consequently, acquitted him. 10. On behalf of the State, leave to file Government Appeal, under Section 308 (3) Cr.P.C. is being sought on the ground that the learned trial Court has not properly appreciated the evidence adduced by the prosecution and merely on the strength of conjectures and surmises and also on basis of minor contradictions Court has recorded finding of acquittal of the accused, whereas, there is clinching evidence specifically of P.W.-7 Bhole, on record but the same has not been relied upon. 11. 11. Learned Court below has not made proper appraisal of evidence on record and by acquitting the accused from charges under aforementioned sections, learned trial Court has grossly erred in law and hence the impugned judgment and order is not sustainable and the same deserves to be set aside by this Court and accordingly, the leave to file Government Appeal against the impugned judgment and order be granted. 12. Heard learned A.G.A. at length and perused the record. 13. At the time of alleged commission of occurrence of incident, P.W.-1 Rajendra, P.W.-7-Bhole and P.W.-3 Smt. Nirmala, were not present and in the First Information Report it is averred that at the time of instant occurrence, wife of the informant Rajendra, was staying at Sisauli, at the house of her sister. It is also not alleged in the First Information Report that the informant himself was present at his house; he has simply averred in the application Exhibit-Ka-1, that at the time of the alleged occurrence his three sons and two daughters, were present at his house. It is also alleged in the First Information Report that his daughter/victim had apprised him about the incident telephonically, thus, the First Information Report, Exhibit-Ka-1, is based on the information allegedly, given by his daughter upon returning to his home. First Information Report, as well as, the statements of the P.W.-1-Rajendra, P.W.-3 Nirmala and P.W.-7 Bhole, who happens to be uncle of the victim are indirect evidence under the provisions of the Indian Evidence Act, need to be corroborated from the direct evidence. Direct evidence is the best evidence and obviously such evidence can form the basis of conviction of the accused, because, under law number of witnesses to prove the charge is not essential, therefore, at the outset, it is necessary to consider the deposition of victim-P.W.-2. 14. P.W.-2 victim, during investigation, has got recorded her statement under Section 161 Cr.P.C. by Rima Chauhan, Sub Inspector and under Section 164 Cr.P.C. was recorded by the Magistrate concerned. 15. P.W.-5, Dr. Sangeeta Gupta, is said to have conducted the medical examination, prepared the medical report of victim and also recorded the statement of the victim during her medical examination. P.W.-2 victim, during investigation, has got recorded her statement under Section 161 Cr.P.C. by Rima Chauhan, Sub Inspector and under Section 164 Cr.P.C. was recorded by the Magistrate concerned. 15. P.W.-5, Dr. Sangeeta Gupta, is said to have conducted the medical examination, prepared the medical report of victim and also recorded the statement of the victim during her medical examination. In the statement she has stated that on 13.10.2016 she was posted as Senior Consultant in the District Women Hospital and on that date victim was brought by the lady constable for her medical examination in connection with the present case; the victim had told her that she is 17 years old and she has done medical examination of the victim with the consent of the victim as well as his uncle Bhole. 16. P.W.-5, Dr. Sangeeta Gupta, further states that at the time of medical examination she had recorded the statement of the victim to the effect that the victim had told her that on 12.10.2016, at around 10 to 10:30 p.m. Firoz had not committed the incident with her; therefore no internal or external mark of injury was found on her person; she had changed her clothes; there was cut mark on her middle finger. 17. P.W.-5-Dr. Sangeeta Gupta, in her cross examination has admitted that the victim in her statement has not told her that Firoz has committed rape upon her. 18. It is recorded by P.W.-5-Dr. Sangeeta Gupta, in the statement of the victim that she at 10 p.m. went to drink water from the tap installed out side of her house; all of sudden, Firoz came from behind and trapped her mouth and brought her in the vacant room of his house and attempted to rape her; accused from his one hand was searching something in the Almirah; she got the opportunity and rescued herself and rushed back to her house. 19. In the aforesaid statement of the victim, said to have been recorded by P.W.-5, Dr. Sangeeta Gupta, it is not noted that at the time of alleged incident the accused was brandishing knife in his hand. P.W.-5 Dr. Sangeeta Gupta, has also admitted in her cross examination that with regard to alleged rape, victim did not tell her that accused had committed rape upon her. 20. P.W.-5, Dr. Sangeeta Gupta, it is not noted that at the time of alleged incident the accused was brandishing knife in his hand. P.W.-5 Dr. Sangeeta Gupta, has also admitted in her cross examination that with regard to alleged rape, victim did not tell her that accused had committed rape upon her. 20. P.W.-5, Dr. Sangeeta Gupta has also deposed that no sign of force being applied was found at the time of medical examination of the victim, however, she has opined that in such a scenario the sexual violence cannot be ruled out. 21. P.W.-2, victim, has stated in her examination in chief before the learned trial Court that on 12.10.2006, at around 10-10:30 p.m. when she went to drink water at the water tap installed outside of her house, Firoz appeared there; trapped her mouth and forcefully brought her to his house and committed rape upon her. She also admits that she had narrated the entire incident to her parents, who went to the house of the accused/respondent but he fled from there. She admits that she had also told to Daroga Ji about the incident and also got her statement under Section 161 Cr.P.C. recorded. As such P.W.-2, victim, has supported the averments in the First Information Report and also the testimony of P.W.-1 Rajendra, P.W.-3 Smt. Nirmala and P.W.4 and P.W.-7 Bhole. However, in the same breath P.W.-2 victim, in her cross examination, has stated that she has given her statement under the pressure of her uncle Bhole, who is younger brother of her father; Her uncle had also exerted pressure, not only upon her, but also on her father. The aforestated statement has been given by her under fear of her uncle; She had also given her statement under Section 164 Cr.P.C. under the pressure of her uncle Bhole as she had apprehension if she did not give that statement she would be subjected to harassment. 22. It is evident from her deposition, that in her cross examination, she has not supported the prosecution case. In her examination in chief she has also admitted that the previous statement under Section 164 Cr.P.C. was also given under duress. 23. Since statement of P.W.-2 victim has been recorded on oath before the learned trial Court therefore, it has to be treated as voluntarily one. 24. In her examination in chief she has also admitted that the previous statement under Section 164 Cr.P.C. was also given under duress. 23. Since statement of P.W.-2 victim has been recorded on oath before the learned trial Court therefore, it has to be treated as voluntarily one. 24. P.W.-2, victim, in her cross examination has also stated that Firoz has not committed rape upon her; she also contradicts her statements given under Section 164 Cr.P.C. by saying that accused respondent had not trapped her mouth, nor he took her to the room in his house; at the time of alleged incident she was 19 years of age and on the date of examination she was aged about 21 years. 25. P.W.-2, victim, has not stated in her examination in chief that accused/respondent had made an attempt to rape her, nor in this respect she has stated in her cross examination therefore, the evidence of P.W.-5 Dr. Sangeeta Gupta, that the victim had told her that Firoz had made an attempt to rape victim is not corroborated by herself, nor in the First Information Report there is averment that Firoz made an attempt to rape the victim. 26. P.W.-2 victim, has also deposed in her cross examination that statement to Daroga Ji was also given by her, under the duress of her uncle Bhole. 27. The statement of witness, under law is required to be read as a whole. Incident is said to have occurred with the victim by accused; first information report was not lodged by her at the police station, nor, informant-P.W.-1, Rajendra, P.W.-3 Nirmala and P.W.-7 Bhole, were present at the time of incident, whereas, P.W.-7, Bhole in his examination in chief has stated that the victim is her niece and on 12.10.2016, at around 10 p.m. he was present at his house; he heard scream of her niece, who lives nearby and on hearing her shout, he came out of his house and saw her niece was weeping; on interrogation, she had narrated the entire incident to him. 28. P.W.-2 victim, has not stated in her deposition that her uncle Bhole had come on the scene of occurrence and she had narrated the incident to him. Thus, statement of P.W.-7 Bhole, in this connection is not corroborated by P.W.-2 victim. 29. 28. P.W.-2 victim, has not stated in her deposition that her uncle Bhole had come on the scene of occurrence and she had narrated the incident to him. Thus, statement of P.W.-7 Bhole, in this connection is not corroborated by P.W.-2 victim. 29. P.W.-1, informant, P.W.-3 Smt. Nirmala, P.W.-7 Bhole, have stated in their respective testimony that at the time of incident accused/respondent Firoz was having knife, but victim has not stated in her statement that accused/respondent Firoz, at the time of alleged incident was wielding knife in his hand, thus, the statements of P.W.-1 Rajendra, P.W.-3 Nirmala and P.W.-7, Bhole, do not find support from the deposition of P.W.-2, victim, and being uncorroborated it in not worthy of reliance. 30. Since, P.W.-2 victim has supported the prosecution case in her examination in chief but has also candidly stated that her previous statements under Sections 161 as well as 164 Cr.P.C. and her examination in chief, were the result of pressure exerted by her uncle Bhole upon her. 31. P.W.-2 victim, admitted in her deposition that she is literate and she also discloses in her statement that at the time of alleged incident she was aged about 19 years. In the First Information Report the age of the victim is mentioned 17 years. P.W.-1 Rajendra, P.W.-3 Nirmala and P.W.-7 Bhole, has not mentioned the age of the victim in their statements. There is no documentary evidence on the record about the age of the victim. The evidence of P.W.-2 victim with regard to her age, was 19 years, at the time of alleged incident. Her deposition, has not been challenged, therefore, it appears that her statement with regard to her age, at the time of alleged incident is admitted to the prosecution. 32. P.W.-4 Dr. Isha Soni, had also carried out the medical examination of the victim in connection with the instant case on 15.10.2016, during her posting at PHC Mahila Hospital, Meerut. She states in her examination in chief that she had found victim’s hymen intact. She has also proved medical report as Exhibit-Ka-3. It is also admitted to P.W.-4 Dr. Isha Soni that at the time of medical examination of the victim, she well known that she was doing medical examination of the victim second time. 33. In medical jurisprudence it is generally presumed that in case of rape of a young woman her hymen is torned. It is also admitted to P.W.-4 Dr. Isha Soni that at the time of medical examination of the victim, she well known that she was doing medical examination of the victim second time. 33. In medical jurisprudence it is generally presumed that in case of rape of a young woman her hymen is torned. In the instant case P.W.-2 victim has stated that no rape was committed upon her. She refuses that physical violence had been caused to her by the accused. No mark of injury or violence was noted by the Doctors during her medical examination. 34. P.W.4-Dr.Isha Soni, has also deposed in her cross examination that victim was blowing hot and cold; on one hand she was saying that rape was committed upon her but on the other hand she was contradicting herself by saying that no rape was committed upon her. Therefore, self contradictory statement of victim was recorded to P.W.-4 Dr. Isha Soni, it appears that the victim was under pressure of her uncle Bhole; victim’s Hymen was also found intact. It appears from above discussion that no rape was committed by the accused/respondent upon the victim P.W.-2. 35. Finding returned by the trial Court in the impugned judgment and order dated 06.05.2019, in para 32, is extracted below : 36. The accused/respondent has stated in his statement under Section 313 Cr.P.C. that prior to alleged incident dispute with regard to payment was existing and thus he has been falsely implicated in this case. 37. Since victim, P.W.-2 has herself admitted that pressure was exerted by her uncle, to give evidence of alleged rape against the accused/respondent, it lends credence to the above referred statement of the accused. 38. In the backdrop of above analysis of evidence on record, doubt is created regarding the authenticity of the prosecution case against the accused/respondent. We find no worthy evidence on record to prove the charges against the accused. 39. From the above discussion, it is concluded that the learned trial Court has rightly appreciated the facts and circumstances of the case, as well as the evidence on record hence we do not find any illegality or material irregularity in the impugned judgment and order and the same is sustainable in eyes of law as it does not suffers from perversity. 40. Thus, leave to appeal is refused and in consequence the appeal stands rejected. 41. 40. Thus, leave to appeal is refused and in consequence the appeal stands rejected. 41. Registry to return the record to the Court below along with this order.