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2023 DIGILAW 659 (CAL)

K. Duryodhan v. State

2023-04-28

KRISHNA RAO

body2023
JUDGMENT : (Krishna Rao, J.) 1. The appellant has preferred the present appeal against the judgment passed by the learned Special Judge (POCSO) Court, North and Middle Andaman, Mayabunder in Special POCSO Case No.2 of 2020, Special POCSO S.T Case No.16 of 2020 ( The State vs. K. Duryodhan and Smt Sapna) date 17th November, 2021 wherein the learned Judge had convicted the appellant K. Duryodhan and sentenced to suffer rigorous imprisonment for three years for the offence punishable under section 8 of Protection of Children from Sexual Office Act, 2012 and also to pay fine of Rs.50,000/-out of which 90 per cent amount is to be paid to the victim as compensation under section 357 of Code of Criminal Procedure, in default of payment, the appellant will suffer further Rigorous Imprisonment for six months. 2. The case is initiated on the basis of the complaint of the victim before the Police Station Mayabunder on 5th January, 2020 being FIR being FIR No.6 of 2020 under section 7/8/11 of the Protection of Children from Sexual Offence Act, 2012 against the appellant. 3. It is alleged that, on 10th December, 2019 at about 4.30 pm in the evening, when the victim was going from the footpath of her house to take a pen from the shop of Balakrishna located near the main road and when she passed through the house of the appellant, who works in the Electricity Department standing in front of his house and on seeing the victim going from footpath called the victim but the victim did not give any attention to his words, but when the victim was returning from the shop after buying a pen, the appellant had stopped the victim at the footpath in front of his house and had caught hold the hand of the victim and when the victim asked the appellant to leave her hand but the appellant has put his other hand inside her cloth and started touching her chest with dirty intention. The victim further stated in her statement before the police that when she tried to free herself from the appellant, the appellant had repeatedly caught hold one of her hand and put his other hand inside her cloth and hold her chest. She somehow managed to free herself from the appellant and run away from there. Thereafter, the victim had narrated the same to Harshika Peter Didi. She somehow managed to free herself from the appellant and run away from there. Thereafter, the victim had narrated the same to Harshika Peter Didi. Then she informed the incident of her aunt Miss M. Satya Narayana and her mother on the same day. Thereafter they asked the appellant, the appellant had replied shall I show by repeating the same. Keeping in mind of prestige, they have not made any complaint. But whenever the victim go to school, the appellant was looking at the victim with bad intension for which the victim along with her mother and aunt reported the matter to the police on 05.01.2020. 4. On the basis of the said statement, the police has started investigation. During investigation, the appellant was arrested and on completion of investigation, the police has submitted charge sheet against the appellant as well as one Smti Sapna for the offence under section 7/8/11/19/21 of the POCSO Act, 2012. 5. On 4th September, 2020, charge was framed against the appellant for the offence under section 7/8 of the POCSO Act read with section 11 and 12 of the said Act. The appellant pleaded not guilty and claimed to be tried. 6. During trial, altogether the prosecution has examined ten witnesses namely; (i) PW-1 -the victim; (ii) PW-2 – Smti.Venkat Raman; (iii) PW-3 -Kumari Harshika Peter; (iv) PW-4 -Shri M. Satya Narayani; (v) PW-5 -Dr. Grace; (vi) PW-6 -Shri Subramaniam; (vii) PW-7-Niranjan Malakar; (viii) PW-8-Dr. Satyajeett Halder; (ix) PW-9 Somen Kumar Halder and; (x) PW-10 -Insp. K.S. Tiwari. The prosecution has exhibited altogether 10 documents i.e :- (i) Exhibit-1 – Firdh Bayan (Initial Statement of victim); (ii) Exhibit-2 – Medical examination report of victim (Proforma-I) (iii) Exhibit-3 – Statement of victim recorded under section 164 Cr.P.C (iv) Exhibit-4 – Seizure list of Birth Certificate of victim (v) Exhibit-5 – Statement of Harshika Peter recorded under section 164 Cr.P.C. (vi) Exhibit-6 Report of DCPO. (vii) Exhibit-7 -Medical examination report of the appellant. (viii) Exhibit-8 – Site plan (ix) Exhibit -9 -Certified copy of birth certificate (x) Exhibit-10 -FIR 7. Mr. Deep Chaim Kabir, learned counsel representing the appellant submits that only on the basis of the statement of the victim, the learned Judge has convicted the appellant without considering the evidence on record. Mr. Kabir submits that as per the evidence of the victim, the alleged offence was occurred at 4.30 pm ie. Mr. Deep Chaim Kabir, learned counsel representing the appellant submits that only on the basis of the statement of the victim, the learned Judge has convicted the appellant without considering the evidence on record. Mr. Kabir submits that as per the evidence of the victim, the alleged offence was occurred at 4.30 pm ie. broad-day light but the prosecution has not examined any independent witnesses though as per the evidence of the victim as well as the other witnesses in and around there are several houses, school and shop but the investigating officer has not examined any of the witnesses of the said vicinity. 8. Mr. Kabir emphasised upon the site plan which is marked as Exhibit-8 and submits that admittedly just adjacent to footpath where the alleged offence occurred, there is a nallah of breadth of two feet and after the nallah, there is a wall of 7 feet height in front of the house of the appellant. 9. Mr. Kabir submits that as per the case of the prosecution, the alleged offence was occurred at the footpath. It was the case of the prosecution that the appellant from the boundary wall has caught hold the hand of the victim who was at the footpath and has committed the alleged offence which itself cannot be said to possible. 10. Mr. Kabir submits that if the wall is of 7 feet height and the victim is at the footpath and in between there is a nallah, it is impossible for the appellant to catch hold the hand of the victim who was at the footpath and put his hand inside the cloth by pressing the chest. 11. Mr. Kabir submits that the victim during her cross-examination had admitted that the height of the wall is 7 feet. Mr. Kabir also pointed out the cross examination of the victim and submits that in question no.11 of the cross examination of the victim has stated that the wall towards the house of the appellant is higher than my reach by hand. He further submits that in the cross-examination, the victim has stated that starting point of the footpath from main road, there is a stationery shop and on the other side of the footpath, there is a Ananda Marg School. He further submits that in the cross-examination, the victim has stated that starting point of the footpath from main road, there is a stationery shop and on the other side of the footpath, there is a Ananda Marg School. The victim during her cross-examination further stated that adjacent to the shop, house of the appellant located and just opposite the appellant’s house the lawn of Ananda Marg is situated. The victim has also stated that Swamiji is always residing within the school premises and at the evening time all the children are playing in the said lawn. 12. Mr. Kabir further pointe out that the victim has also stated that the road is clearly visible from in front of the house of the appellant just opposite of the road of Fathima Madam. Adjacent to the house of Fathima Madam, her tenants are also located and from the house of tenants, house of the appellant and entire footpath are clearly visible and it is a straight line. 13. By referring the said evidence, Mr. Kabir submits that if all the persons are available at the spot, why none of the persons of the locality were examined either by the investigating officer during the investigation or during the trial before the learned Court below. 14. Mr.Kabir further submits that PW-3 Kumari Harshika Peter, to whom the victim had narrated the incident, stated that the victim was very scared at that time and stated to her that she was misbehaved by the appellant. He further points out that PW-3 in her evidence, has further stated that she had called the Masi of the victim and then PW3 along with the victim had been to the Women Welfare Department and she has stated everything to the said department. 15. PW-3 further stated that prior to going to Women Welfare Department, the Masi of the victim went to the appellant and asked the appellant as to why he had done the said act but the appellant had refused the same and subsequently when the witnesses have threatened that they will make complaint to the police and thereafter the appellant told to them that it was done by mistake. 16. By referring the said evidence, Mr. 16. By referring the said evidence, Mr. Kabir submits that though the victim went at first to the PW-3 but she had not narrated or explained about the said incident only she has stated that the appellant has misbehaved with the victim and when they asked the appellant, the appellant has refused about the alleged incident but they have threatened the appellant about the complaint before the police and then the appellant alleged to have accepted that he has done by mistake that cannot be taken into consideration as extra judicial confession because from the evidence of the PW-3 itself revealed that was obtained by threat. 17. Mr. Kabir has also referred the cross-examination of PW-3 wherein PW-3 stated that just only once they asked the appellant and the appellant had refused. Thus asking at the second time from the appellant is not believable. Mr. Kabir referred the evidence of PW4 and submits that during the cross-examination of PW-4 has admitted that in between the house of the appellant and the footpath there is a big RCC wall. 18. Mr. Kabir referred the evidence of PW-6, who is the maternal uncle of the victim girl wherein he stated that he got information on 2nd January, 2020 from the victim girl over phone and the victim was crying and she disclosed that the appellant had committed dirty things to her. On receipt of the said information, PW-6 visited Mayabunder on 4th January, 2020 and on 05th January, 2020 a complaint was lodged. The PW-6 further stated that in his presence, the birth certificate of the victim girl was seized. 19. Mr. Kabir submits that the victim girl during her cross-examination has stated that on 25th December, 2019 her maternal uncle visited to her house on the Christmas holiday and the said statement of the victim was also corroborated by the PW-6 during the cross-examination and admitted that on 25th December, 2019, he had visited Mayabunder and stayed at his sister’s house. 20. By referring the said statement of the victim girl and the statement of PW-6, Mr. 20. By referring the said statement of the victim girl and the statement of PW-6, Mr. Kabir submits that the maternal uncle had been to the house of the victim girl on 25th December, 2019 and stayed her house but on that day the victim girl has not narrated the said incident to her maternal uncle and thus the statement made by the PW-6 that on 02nd January, 2020, the victim girl has informed her maternal uncle about the alleged incident is not believeable. 21. Mr. Kabir has also referred to the statement of PW-7, who is the District Child Protection Officer (DCPO), North and Middle Andaman by referring the said statement, Mr. Kabir submits that the letter dated 07th February, 2020 was exhibited as Exhibit-6 and from the said exhibit, it reveals that no complaint was reported with respect crime no. 6 of 2020 dated 05th January, 2020 under section 7/8/11 of the POCSO Act and by referring the said exhibit and the statement of PW-7, Mr. Kabir submits that the statement made by the victim girl and PW-3 that they have informed the alleged incident to the Women Welfare Department is also not believable. 22. Mr. Kabir, by referring the statement of PW-9, who is the Investigating Officer of the present case and submits that the Investigating Officer has arrested the appellant immediately on the same day of the registration of the FIR and the Investigating Officer has admitted that the alleged date of incident was 10th December, 2019 but the FIR chalked out on 05th January, 2020 but no explanation was given by the prosecution for lodging of FIR after about a month. 23. Mr. Kabir pointed out the cross-examination of the PW-9 and submits that the Investigating Officer during his cross-examination had admitted that, as per investigation, the alleged place of occurrence is footpath and the victim girl was always in the footpath and the allegation of the victim was that the appellant has touched the body of the victim from other side of the wall. The Investigating Officer has stated that the height of the appellant is 4 ft. 9 inch. 24. Mr. Kabir, by referring the cross-examination of the PW-9, has stated that the PW-9 has also admitted that there was a drain near the wall. The Investigating Officer has stated that the height of the appellant is 4 ft. 9 inch. 24. Mr. Kabir, by referring the cross-examination of the PW-9, has stated that the PW-9 has also admitted that there was a drain near the wall. He also referred the statement of PW-9 and stated that the PW-9 has admitted that he did not collect any paper showing that the co-accused Sapna was the counsellor of the District Chile Protection Unit, Mayabunder and during his investigation, he has not collected any material with regard to show that Sapna was on duty or not. By referring the statement of PW-9, Mr. Kabir submits that the alleged incident was occurred at the footpath and between the footpath, there was a wall and the accused was other side of the wall and height of the accused is 4.9 inch and as such the story of the prosecution that the accused has caught hold the hand of the victim girl over the wall and also put his hand on her breast is not believable as the Investigating Officer has admitted that the height of the accused is 4.9 inchs, as per the evidence of PW-1, the height of the wall is 7 feet. 25. Mr. Kabir has further brought to the notice of this Court about the statement of appellant recorded by the learned Judge under section 313 of the Code of Criminal Procedure and by referring the said statement with regard to the question no. 4, Mr. Kabir submits that the learned Special Judge (POCSO) has put all the allegations which was referred in the fardbayan (initial statement) was taken as whole in question no. 1 and has not explained to the accused which portion of the evidence is against the appellant and thus the appellant could not get an opportunity to explain the learned Judge at the time his examination under section 313 of the Cr.P.C. He submits that the statement recorded by the learned Judge under section 313 is not in accordance with law. 26. Mr. Kabir has further referred the question no. 9 of the said statement wherein the appellant has categorically stated that he had stated to the victim girl not to come through the road as they are cutting trees and because of that, the victim girl has made false case against the appellant. Mr. 26. Mr. Kabir has further referred the question no. 9 of the said statement wherein the appellant has categorically stated that he had stated to the victim girl not to come through the road as they are cutting trees and because of that, the victim girl has made false case against the appellant. Mr. Kabir submits that the prosecution has failed to prove the case but the learned Judge without considering the cross-examination of the witnesses had convicted the appellant only on the basis of the examination-in-chief. 27. On the other hand Ms. A.S. Zinu, learned Public Prosecutor representing the State submits that immediately after the incident, the victim girl has reported the matter to Harshika Peter, who is residing in the same village and the victim used to call her as Didi and thereafter she along with Harshika Peter went to the house of the aunt of the victim and the victim has narrated the said incident to her aunt. 28. Ms. A.S. Zinu, learned Public Prosecutor submits that the victim girl, Harshika Peter and her maternal aunt went to the house of the appellant and when they have asked about the alleged incident, the appellant has accepted his guilt before Harshika Peter and maternal aunt of the victim girl. 29. Ms. A.S. Zinu, learned Public Prosecutor submits that, after registration of the case, the statement of the victim girl was recorded under section 164 of the Cr.P.C and both the statement of the victim is corroborated each other and the same statement was made by the victim girl before the Court when she was examined as PW-1 during trial. 30. Ms. A.S. Zinu, learned Public Prosecutor submits that, in the examination-in-chief itself, the victim girl has stated that at that point of time no person were available near to the place of occurrence and as thus question of examining any of the witnesses of the said area does not arise. 31. Ms. A.S. Zinu, learned Public Prosecutor, referring the statement of PW-1 wherein it was noted “victim is shamed and weeping” and by referring the same she submits that even after two years of the incident, the victim was shamed and weeping which itself shows that the appellant has committed the offence with the victim. 32. Ms. 31. Ms. A.S. Zinu, learned Public Prosecutor, referring the statement of PW-1 wherein it was noted “victim is shamed and weeping” and by referring the same she submits that even after two years of the incident, the victim was shamed and weeping which itself shows that the appellant has committed the offence with the victim. 32. Ms. A.S. Zinu, learned Public Prosecutor submits that it is settled law, if the evidence of the victim is reliable, there is no necessity for examination of other witnesses who are alleged to have been eye witnesses of the said case. In the instant case, it is the case of the victim girl itself that there is no eye witness. The statement recorded by the police at the time of registration of the FIR, before the learned Magistrate under section 164 and before the Court at the time of trial are corroborated each other and as such it cannot be said that the statement of the victim is not believable. 33. Ms. A.S. Zinu, learned Public Prosecutor by referring the evidence of the PW-3 Harshika Peter and submits that Harshika Peter has corroborated the evidence of the victim as she has also stated that the victim went to her and narrated the incident to her and thereafter they went to the house of the aunt and Women Welfare Department wherein the victim girl has stated everything to the said department. 34. Ms. A.S. Zinu, learned Public Prosecutor points out that the statement of PW-5, Dr. Grace, who has examined the victim on 05th January, 2020. By referring the evidence of the PW-5, learned Public Prosecutor has stated that the victim girl had also stated about the incident to the PW-5 and PW-5, while examining the victim, has recorded the statement made by the victim which is also corroborated with the evidence as stated above. 35. Ms. A.S. Zinu, learned Public Prosecutor submits that the appellant has admitted with regard to presence of the victim at the place of occurrence but only the defence of the appellant is that the said incident with regard to the sexual assault was not committed by the appellant but has not given any explanation as to why he has been implicated in the case. 36. Ms. 36. Ms. A.S. Zinu, learned Public Prosecutor referring the site plan i.e. Exhibit-8 and submits that in the site plan the Investigating Officer has not shown that there is any drain in between footpath and the wall or there is any wall at the place of occurrence. Learned public prosecutor submits that the alleged incident was occurred at the footpath and as such the story made by the defence with regard to the wall is not believable. 37. Learned Public Prosecutor has relied upon unreported judgment passed by Co-ordinate Principal Bench of this Court in the case of Rohit Pal vs. The State of West Bengal, C.R.A.No.532 of 2019 dated 13.03.2022 and submits that the Hon’ble Court held that - “Considering the lascivious act of the appellant as demonstrated by the victim girl this Court is satisfied that the victim girl was subjected to sexual assault by appellant. The contradictions pointed out by the learned advocate for the appellant is of no consequence because the said contradictions are not material contradictions is respect of the specific act committed by the appellant.” 38. Learned public prosecutor submits that the learned Special POCSO Court, after considering all the evidence available on record and after examining the appellant under section 313 of the Cr.P.C has come to the conclusion that the appellant has committed the said offence and accordingly passed the order of conviction and thus the order of conviction cannot be interfered with. 39. Heard the counsel for the respective parties and perused the material on records. 40. Admittedly, there is no eye witness and only the victim is the witness of occurrence, now the Court has to see whether the evidence of the victim is believable or not? 41. As per the evidence of the victim, who was examined as PW-1, stated that in the month of December, 2019 at about 4.30 PM, she went to purchase a pen and on the way, the appellant stated to her that there is one work and requested to the victim to meet with him, but the victim did not mind the statement. When the victim was returning after purchasing of pen and when she reached to the house of the appellant, once again the appellant had called the victim and caught her hand and pushed her to the wall and put his hand on her breast. When the victim was returning after purchasing of pen and when she reached to the house of the appellant, once again the appellant had called the victim and caught her hand and pushed her to the wall and put his hand on her breast. When the victim requested the appellant not to do such type of things and also requested to release her and she has also stated to the appellant that she would shout but the appellant refused to accept the request of the victim. At that time no person was available near to the place. Thereafter the appellant had put his hand on her breast of the victim once again. The appellant has done all the things forcibly. Despite her protest, the appellant did not release the victim but somehow the victim has managed to flee away from the place. The victim had informed the fact of the incident to one Harshika sister. The victim also informed the incident to her maternal aunt Satya Narayani. Thereafter they informed the incident to Women Welfare Department and the name of the sister was Sapna. Thereafter, her maternal aunt and Harshika Peter had been to the house of the appellant and on being asked, the appellant stated that he did nothing and thereafter Harshika Peter had told the appellant that the matter would be reported to the Women Welfare Department, then the appellant stated that due mistake, hand touching was taken place. Again they went to Sapna and Sapna was ready to take steps and asked the victim whether the appellant was on drunken condition or not, the victim has stated to Sapna that the appellant was in drunken condition and Sapna told that it is not proper time to tell anything as he is in drunken condition and she would take steps on the next day. In the evidence, the victim has also stated that after 4 to 5 days from the date of incident, the same thing was done in that place. Thereafter, a case was filed against the appellant before the PS Mayabunder. 42. The statement made by the victim before the Court as PW-1 on 30.09.2021 is improvement of the complaint made before the police on the basis of which FIR was lodge. Thereafter, a case was filed against the appellant before the PS Mayabunder. 42. The statement made by the victim before the Court as PW-1 on 30.09.2021 is improvement of the complaint made before the police on the basis of which FIR was lodge. In the complaint made before the police on 05.01.2020, there is no such statement with regard to the second incident wherein the victim stated that, after 4 -5 days from the date of incident, same thing was done in that place and thereafter the case was filed. 43. In the statement recorded under section 164 of Cr.P.C, the victim girl stated that every time when she have to cross the house of the appellant for going to her school, the appellant would make indecent gesture towards the victim, but she used to avoid the appellant and she told about the same to her mother then they have decided to file the case against the appellant. The statement made by the victim before the police on the basis of which the case was registered and in the statement recorded under section 164 of the Cr.P.C and the statement recorded before the Trial Court, the victim has given some additional improvement of the second incident. 44. As per the evidence of the victim, the incident was occurred at the footpath. During the cross-examination, the victim has stated that in the road side of the footpath, there is a drain of 2 feet wide and RCC wall was also located in the right side and it is long one and it is continued till 2-3 houses before her house and the wall is about 7 feet height from the footpath. If the cross-examination of the victim is read with Exhibit-8, which is the site plan prepared by PW-9, Investigating Officer, during the investigation had revealed that the victim was at the foot path and the appellant was behind the boundary wall. If the cross-examination of the victim is read with Exhibit-8, which is the site plan prepared by PW-9, Investigating Officer, during the investigation had revealed that the victim was at the foot path and the appellant was behind the boundary wall. If it is taken into consideration that if the victim is at footpath and there is a drain of 2 feet and thereafter a wall of 7 feet height and the height of the appellant is 4.9 inch and the wall is higher than the reach of the hand of the victim and how it is possible that the appellant was over the wall had caught hold the hand of the victim and had put the hand at the breast of the victim. It is also the case of the victim that the second hand was also put by the appellant to the breast, if both the hands have been put by the appellant at the breast, how the hand of appellant reached to the victim. 45. In the judgment, the learned Trial Judge has not considered the said portion of the evidence, whether it is possible for the appellant to caught hold the hand of the victim and put the hand at the breast of the victim from over and above of the wall which is 7 feet height and the height of the appellant is 4.9 inches. 46. The Investigating Officer has made Smt Sapna as co-accused in the instant case on the ground that the victim girl had informed the incident to Sapna who was the member of the District Child Protection Unit but in spite of having knowledge and information, she has not taken any steps for registration of the case against the appellant. 47. Learned Trial Judge had framed charge under section 19 read with section 21(1) of the POCSO Act against Smt Sapna for not taking taking any action against the appellant even after receipt of the information of the alleged incident. 48. In the cross-examination of PW-9, the Investigating Officer has stated that he has not collected any paper showing that the co-accused Sapna was the counsellor of the District Child Protection Unit, Mayabunder and he has also stated that during the investigation, he did not collect any material to show that Sapna was on duty or not. Accordingly, the Trial Judge has acquitted Sapna. Accordingly, the Trial Judge has acquitted Sapna. Once the co-accused has been acquitted, so the statement made by the victim girl, PW-3 and PW-4 that the matter was reported to Sapna has been nullified and the prosecution has not challenged the order of acquittal of Sapna. 49. As regard the alleged extra judicial confession made by the appellant that the victim, PW-3 and the PW-4 had been to the house of the appellant and the appellant has admitted that he has done the said act. All the witnesses stated that at first the appellant has denied with regard to the alleged incident and subsequently when the witnesses have threatened the appellant with regard to making complaint before the police or to Chid Protection Unit then only the appellant alleged to have made the statement that he has touched the hand or done the said act. 50. From the evidence of the PW-3 and PW-4, it is clear that only after the threat, the appellant has alleged to have stated that he has done the said act and this Court is of the view that the statement cannot be taken into consideration as extra judicial confession as initially he has refused and on threat alleged to have been stated, as such the statement is not free from coercion. Even if the statement of PW-3 is taken into consideration, in the chief, the PW-3 has stated that the appellant told that he has not done any act and subseqeutnly when they told that they would lodge complaint against him to the police station, then only the appellant told them that he has done by mistake. But in the cross-examination, the PW-3 has stated that just only once she has asked the appellant and he refused. Thus the alleged statement of the extra judicial confession cannot be taken into consideration. 51. As regard the statement recorded by PW-5, during medical examination of the victim in the proforma i.e. Exhibit-2. In Exhibit-2, the PW-5 recorded as follows:- “The victim name ‘X’ age 15 years female state that on 10.12.2019 at 4.30 pm one Duryodhan R/o Pokadera handling and touching her over the chest & putting a hand under her breast and so also he put her mouth close. He was physically try to have physical contact with her but unfortunately escape herself. He was physically try to have physical contact with her but unfortunately escape herself. This incident happen on the way (Road) to her house.” The alleged statement made by the victim to the PW-5 is not corroborated with the statement made to the police or to the Magistrate recorded under section 164 of Cr.P.C or before the learned Trial Court and as such the statement recorded by the PW-5 cannot be believable. The victim intended to improve her case by making such statement before PW-5 and the said statement was not proved before the Court at the time of evidence of the victim. 52. The Investigating Officer has obtained report from PW-7, who was the District Child Protection Officer, North and Middle Andaman. The report, which is exhibited as Exhibit-6, reveals that no intimation or any complaint has been given to the office of the District Child Protection Unit,Mayabunder. But the Investigating Officer has not taken any endeavour to ascertain whether actually Sapna, co-accused was the employee of the District Child Protection Unit or she was on duty on the alleged date of incident. Thus the case of the prosecution the matter was reported to Smt Sapna has not proved. 53. The learned Trial Judge had recorded the statement of the appellant was well as the other co-accused under section 313 of the Cr.P.C. It is found from the said statement that the learned Judge has not put the specific question to the appellant, which are incriminative material against the appellant. Learned Judge, while recording the statement of the appellant under section 313 of the Cr.P.C, at question no.4 had taken the whole evidence of the victim against which the appellant has replied that “not guilty”. The learned Judge failed to put the exact material question which were against the appellant. 54. As part of fair trial, Section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstances appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court to evaluating the evidence properly. The circumstances are to be put and not the conclusion. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court to evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality and questioning must be fair and cauched in a form intelligible to the accused. But it does not follow that omission will necessarily vitiate the trial. The trial would be vitiate on this core only when on fact it is found that it had occasioned a failure of justice. 55. In a case reported in 1957 SCR 1981 (Vadivelu Thevar vs The State Of Madras), the Hon’ble Supreme Court held that….. “hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. It could then be seen that this Court has found that witnesses are of three types, viz. (a) wholly reliable, (b)wholly unreliable and (3) neither wholly reliable nor wholly reliable. When the witness is “wholly reliable” the court should have no difficulty inasmuch as conviction or acquittal can be based on the testimony of a single witness, equally if the court find that the witness is “wholly unreliable” there cannot difficult inasmuch as neither conviction nor acquittal can be based on testimony of such witnesses, It is only in the third category of witnesses that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” 56. In the present case, as already stated above, that the only witness of the occurrence of the victim girl and there is no witness available at the place of occurrence as per the statement of the victim but during the cross-examination, the victim has admitted that there are several houses, shop, play ground and the children used to play at the play ground but the Investigating Officer has not taken any endeavour for examination any of the witnesses of the locality to prove the version of the victim. 57. The version given by the victim during the cross-examination which was corroborated by the Investigating Officer along with the site plan (Exhibit -8). It is impossible for the court to believe the statement of the victim. As per the case of prosecution the incident was occurred at foot path but the appellant is at the other side of wall which is about 7 feet height thus it is not possible for the appellant to commit the offence. 58. As regard Section 29 of the Protection of Children from Sexual Offences Act,2013, the same is not applicable in the present case as this court already held that the case of the prosecution is not believable. 59. In view of the above, the judgment of conviction dated 01.11.2021 and 02.11.2021 passed by the learned Special Judge under POCSO Act, 2012, North and Middle Andaman, Mayabunder, in Special POCSO Case NO.02 of 2020, Special POCSO ST No.16 of 2020 is quashed and set aisde. 60. The appellant is acquitted of the charges levelled against him. The appellant is discharged from bail bond. 61. The criminal appeal being CRA/18/2021 is allowed. 62. Let the lower court records be sent down to the learned Court below immediately.