JUDGMENT : Mr. Vijaykumar A. Patil, J. - This appeal is filed by the State questioning the correctness of the judgment of acquittal dated 08.12.2017 passed by the VI Addl. District and Special Judge, Mysuru in S.C.No.294/2016. 2. Facts in brief leading to filing of this appeal are that the accused is a resident of Ayarahalli village, he was working with PW-5 and CW-3 Lokesh as a Carpenter at Mysuru. On 11.06.2016, accused came to the house of PW- 1, CW-3 Lokesh and PW-5. PW-5 invited the accused to his house and he was allowed to stay in the house overnight. Taking advantage of the fact that PW-1, CW-3 Lokesh and PW-5 went outside, accused took PW-2, minor daughter of PW-1 & CW-3, to a room and committed rape on her. After some time, PW-1 and PW-5 returned home. The door was locked from inside. They knocked at the door but the accused did not open. At that time PW-2 victim girl, her brother and accused were inside. The door was broken open. Son of PW-1 was found sleeping in the hall, and the accused & PW-2 in the room. Accused was on underwear and PW-2 was naked and her thighs appeared red. It is the further case of prosecution that PW-2 victim informed PW-1 that she was unable to pass the urine. There was inflammation on her private part. PW-1 informed the said incident to the police on next day and the police registered the FIR, took up the investigation, sent PW-2 to the hospital for examination. 3. On completion of investigation, the charge sheet was filed against the accused for the offences punishable under Section 376(2)(f) & (i) of IPC and also under Sections 5(m) & (n), 6, 9(m) & (n) and 10 of the Protection of Children from Sexual Offences Act, 2012 [for short, hereinafter referred to as 'the POCSO Act']. The prosecution examined 8 witnesses as PWs-1 to PW-8 and got marked 11 documents as Exs.P-1 to P-11. The trial Court, on appreciation of evidence adduced by the prosecution, came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The prosecution examined 8 witnesses as PWs-1 to PW-8 and got marked 11 documents as Exs.P-1 to P-11. The trial Court, on appreciation of evidence adduced by the prosecution, came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. To come to this conclusion, the Trial Court has observed that there are a number of inconsistencies and contradictions in the evidence of PWs-1, 2 & 5, which would create doubt in the mind of the Court with regard to the incident. It has also observed that PW-2, minor victim, has not stated anything before the doctor with regard to the incident and it is PW-1, her mother, who explained the incident to the doctor. The trial Court held that the evidence of PW-2 is contrary to the evidence of PW- 1, mother of PW-2, and there is no clarity with regard to the alleged incident. The trial Court has come to the conclusion that PW-3 doctor has admitted in the cross examination that redness of skin may also occur even in case if any force is used on the said part of the skin; hence, there may be any other reason for genital assault on PW-2, in as much as Ex.P-3 medical certificate of the victim also does not indicate any injuries on the private part of the victim. 4. We have heard Smt. K.P.Yashoda, learned High Court Government Pleader for the appellant-State, Smt. K.M.Archana, learned counsel appointed as amicus-curiae for respondent No.1-accused and Sri. Shreyas, learned counsel for Sri. Amruth S.Chowdhary, for respondent No.2- defacto complainant. 5. Smt. K.P.Yashoda, the learned High Court Government Pleader submits that the trial Court has committed grave error in appreciating the evidence available on record. It is submitted that PW-2 who is the victim of the incident is consistent in her evidence with regard to sexual assault by the accused in her examination-in-chief as well as in the statement recorded by the learned Magistrate under Section 164 of Cr.P.C. It is further submitted that PW-1, the mother of victim, has narrated the incident which took place on 11.06.2016, no doubt there are some variations in her statement but that itself cannot be a ground to acquit the accused of the charged offences. It is also submitted that PW-3, the doctor who examined PW-2, has clearly deposed that the victim was brought to her for examination on 12.06.2016 and she noticed redness of labia majora and minora with tenderness in the private part of PW-2, which clearly indicates that PW-2 had been sexually assaulted by the accused. If the evidence of PW-2, PW-1 and PW-3 are read together, it gives a clear indication that the accused, who was present in the house of PW-1 on the night of 11.06.2016, taking advantage that nobody was in the house, committed sexual assault on PW-2. The trial Court, without appreciating the evidence of the prosecution in proper perspective, proceeded to acquit the accused from the charged offences. Learned HCGP fairly submits that the trial Court has framed the charges against the accused for the offence punishable under Section 376(2)(f) & (i) of IPC and Section 5(m) & (n), read with Section 6 of the POCSO Act. However, on perusal of the evidence available on record, the prosecution might have failed to prove the case against the accused for the charged offences, but the evidence indicates that the accused committed offence punishable under Section 9(m) & (n) of the POCSO Act and the trial Court ought to have convicted the accused for the said offence. Hence, she seeks to reverse the judgment of acquittal by convicting the accused for the offence punishable under Section 9(m) & (n) of the POCSO Act by imposing appropriate sentence. 6. Sri. Shreyas, learned counsel for Sri. Amruth S.Chowdhary, for respondent No.2-defacto complainant adopts the arguments of learned HCGP. 7. Per contra, Smt. K.M.Archana, learned counsel appointed as amicus-curiae for respondent No.1-accused, supports the impugned judgment of acquittal and submits that there are a number of contradictions in the evidence of PW-1. PW-1 has stated that on 11.06.2016 immediately after the alleged sexual assault on PW-2, they telephoned the police and informed about the incident. PW-1 has further stated that on the next day, they went to Cheluvamba Hospital, Mysuru where the doctors examined PW-2 and informed that nothing had happened to PW-2 and directed them to go home. PW-1 has also stated that on the same day, immediately after the incident, police came and took the accused to police station, however, the case of prosecution is quite contrary. Hence, the trial Court has rightly disbelieved the evidence of PW-1. PW-1 has also stated that on the same day, immediately after the incident, police came and took the accused to police station, however, the case of prosecution is quite contrary. Hence, the trial Court has rightly disbelieved the evidence of PW-1. Learned amicus-curiae further submits that PW-2 is not clear in her evidence with regard to sexual assault by the accused, hence, the trial Court has rightly come to the conclusion that there are inconsistencies in the evidence of PWs-1 & 2. She submits that PW-3, the doctor who examined PW-2, in her cross-examination, admitted that redness of skin will also occur even in case if any force is used on the said part of the skin. Hence, the trial Court has observed that there may be any other reason for reddening of the private part of PW-2 and disbelieved the evidence of PWs-2 & 3. She further submits that the accused has taken specific defence before the trial Court that the accused is a co-worker with PW-5 & CW-3 Lokesh and because of non-payment of his wages, he came to the house of PW-1 and requested for payment of arrears of wages and to avoid the payment of wages, PW-1, CW-3 Lokesh & PW-5 have falsely implicated the accused in the case. She submits that a number of suggestions were put to PW-1 & PW-5 during the cross-examination. Though they have denied the said suggestions, the prosecution has failed to establish the guilt of the accused by producing independent witnesses. She also submits that PW-1 has stated that one Mr. Ravi & others were present on the said day of incident, however, for the reasons best known to prosecution, it did not examine Ravi. The prosecution has not examined CW-3 Lokesh, he was given up. She further argues that PW-1 has stated that the accused had bitten the lips of PW-2, caused bleeding injury and similarly PW-2 also deposed that accused had bitten her cheek. However, PW-3, the doctor who examined PW-2, has not stated anything with regard to said injury in her evidence or in medical certificate at Ex.P-3. Hence, the trial Court has rightly disbelieved the evidence of prosecution. However, PW-3, the doctor who examined PW-2, has not stated anything with regard to said injury in her evidence or in medical certificate at Ex.P-3. Hence, the trial Court has rightly disbelieved the evidence of prosecution. She further submits that if the appellate Court while considering the appeal against the judgment of acquittal and on appreciating the evidence on record, is of the opinion that two views are possible, the view taken by the trial Court should be adopted unless the appellate Court comes to a definite conclusion that only one view is possible which leads to conviction of the accused. In the instant case, there are a number of discrepancies & contradictions in the evidence adduced by the prosecution, hence, she seeks to dismiss the appeal by confirming the judgment of acquittal. 8. We have heard learned HCGP for the appellant- State, learned counsel for defacto complainant, learned amicus curiae for the accused and perused the impugned judgment, grounds of appeal & the entire evidence available on record. 9. The prosecution has examined 8 witnesses as PWs-1 to 8. PW-1 is the mother of the victim, PW-2 is the victim girl and PW-3 is the doctor who examined PW-2, PW- 4 is Anganvadi worker, PW-5 is the grand father of the victim; these witnesses are the prominent witnesses who have spoken with regard to the incident. PWs-6 to 8 are the police witnesses. 10. PW-1, the mother of the victim, filed complaint at Ex.P-1 and based on the said information, crime was registered and investigation was carried out. PW-1 has stated that PW-2 is her daughter, CW-3 Lokesh is her husband and PW-5 is her father and they are residing together along with her son Akash. She stated that she knows the accused, who is the son of sister of PW-5. She stated that around one year ago accused came to their house as he was working with PW-5 and her husband. She further stated she gave food to PW-5 and accused, thereafter she went to her relative's house nearby to attend a function. During that time, PW-5, accused and her children were at the house. When she came back after 15 minutes, she observed that public had gathered and PW-5 was also outside the house and the door was locked from inside. She along with PW-5 and her husband knocked the door. However, the door was not opened. During that time, PW-5, accused and her children were at the house. When she came back after 15 minutes, she observed that public had gathered and PW-5 was also outside the house and the door was locked from inside. She along with PW-5 and her husband knocked the door. However, the door was not opened. Hence, they broke open the door and entered the house. She also stated that when they went inside, she saw PW-2 sleeping in the hall, accused was sleeping on the cot and her three year old son was also sleeping in the hall. Accused was on underwear only in the same room where PW-2 was present in naked state. PW-2's thighs were red and PW-2 informed that she was unable to pass urine and feeling discomfort. She stated that as the accused was brought out of the room, the neighbours assaulted the accused, thereafter called the police and police took the accused. She further deposed that on the night of the incident, PW-2 did not disclose anything as she was scared. On the next day she stated that the accused took her to room and removed her clothes and bit her cheeks and slept on her. Thereafter, herself, CW-3 Lokesh and her mother, took PW-2 to K.R.Hospital, Mysuru. She also stated that as PW-2 informed her of discomfort at the time of passing urine, her aunt's son called the police and gave information. The police informed them to bring PW-2 to police station and accordingly they went to police station and informed about the incident. The said complaint is at Ex.P-1. Thereafter, police sent PW-2 to K.R.Hosptial. The doctors examined PW-2. PW-2 could not tell anything to the doctors with regard to the incident and it is PW-1 who explained the incident to the doctor. PW-1 has further deposed that before going to police station, they went to Cheluvamba Hospital, Mysuru and showed PW-2 to the doctor at Cheluvamba Hospital and they informed that nothing had happened to PW-2 and gave some tablets and sent them home. She stated that police came to their house after three days and conducted the mahazar as per Ex.P-2. Police also took PW-2 to Mysuru Court where she gave statement before the learned Magistrate and at that time she was also present. 11. PW-2 is the victim girl aged about 5 years at the time of incident. She stated that police came to their house after three days and conducted the mahazar as per Ex.P-2. Police also took PW-2 to Mysuru Court where she gave statement before the learned Magistrate and at that time she was also present. 11. PW-2 is the victim girl aged about 5 years at the time of incident. She stated that she knew the accused; he had come to her house on that day and removed her underwear, and he slept on her and bit her cheek. She denied the suggestion that she had deposed falsely at the instigation of PW-1. 12. PW-3 is the doctor who stated that she examined PW-2 on 12.06.2016 at around 04.45 p.m. She observed redness of labia majora and minora with tenderness in the private part of PW-2. She stated that hymen of PW-2 was in-tact and there was minimal white discharge. She also stated that there were no signs of vaginal penetration to PW-2 and she is of the opinion that there was a genital assault. She issued medical certificate as per Ex.P-3. 13. PW-5 is the father of PW-1. He stated that that he knows the accused, he is a distant relative. He stated that the accused came around 09.00 a.m. and informed him that he left the house and did not eat anything for two days and requested to provide food. Accordingly, he informed the accused to come to his house to have food. Thereafter, he and CW-3 Lokesh went to their work. He stated that he came back home around 07.00 p.m. and around 08.30 p.m. on the same day, CW-3 Lokesh came along with the accused. At that time CW-3 Lokesh and accused were drunk. He also stated that PW-1 informed him that there was no bus facility to send the accused and requested him to stay in their house that night. Accordingly, the accused stayed in their house. He further stated that PW-1 and CW-3 Lokesh went to relative's house to attend the function. While going, PW-1 & CW-3 Lokesh took their son along with them and PW-2 was sleeping in the hall. Accused was sleeping on the cot in the hall. He stated that after sometime he went outside to attend the nature call and returned after 15 minutes and found that the door was locked from inside. While going, PW-1 & CW-3 Lokesh took their son along with them and PW-2 was sleeping in the hall. Accused was sleeping on the cot in the hall. He stated that after sometime he went outside to attend the nature call and returned after 15 minutes and found that the door was locked from inside. He asked the accused to open the door, but he did not open. On hearing his screaming voice, one Shivraj, PW-1 and CW-3 Lokesh came. All of them broke open the door. When they went inside, they saw that accused was in the room and PW- 2 was sleeping on the mat in the said room. Accused was wearing only underwear and the PW-2 was without underwear, however she was wearing shirt. Accused was brought out of the room, gathered public thrashed him. He also stated that CW-3 Lokesh assaulted him for bringing the accused home. He further stated that PW-2 had informed him that accused was sleeping on her by closing her mouth. 14. The prosecution has examined PW-4 who is an Anganawadi worker. She has stated that PW-2 was admitted in Anganawadi on 28.05.2016 and at that time they registered the date of birth of PW-2 as 24.02.2012. 15. PWs-6 to 8 are the police witnesses who stated with regard to registration of FIR, drawing of mahazar, taking victim to the hospital, taking victim to the Magistrate for recording statement under Section 164 Cr.P.C and the manner of conducting investigation. 16. On re-appreciation of entire evidence available on record, it is evident that PW-1, who is a complainant and mother of the victim, has stated that the accused committed sexual assault on PW-2 in their house, in the absence of other family members. However, the said witness has stated that immediately after the incident, they called the police, the police came to the house and took him to the police station. The said evidence of PW-1 is quite contrary to the case of prosecution. The accused was arrested on 13.06.2016 between 06.00 to 7.00 a.m. She stated that before going to police station, she took PW-2 to Cheluvamba Hospital, Mysuru, where the doctors informed her that nothing had happened to PW-2 and requested her to take PW-2 to home and they gave some tablets. The said evidence of PW-1 is contrary to the evidence of Investigating Officer and the prosecution case. The said evidence of PW-1 is contrary to the evidence of Investigating Officer and the prosecution case. The records indicate that the information was provided to police on 12.06.2016 at 11.30a.m. and thereafter FIR was registered and then PW-2 was sent to Hospital for examination. PW-1 in the cross-examination has admitted that she does not know the contents of Ex.P-1, complaint. On perusal of examination-in-chief, cross-examination of PW-1 and Ex.P-1 complaint, there are a number of contradictions with regard to incident and commission of offence by the accused. PW-1 as well as PW-5 deposed that PW-2 had suffered a bite injury on the lips, however, PW-3 has neither stated anything with regard to said injury nor made any reference in the medical certificate at Ex.P-3. Therefore, the evidence of PW-1 and PW-5 creates doubt in the mind of Court with regard to the incident, hence, they being the interested witnesses are not worthy to be believed. 17. On perusal of evidence of PW-2, the victim girl who was aged about 5 years, she stated that accused took her to room, removed her underwear and slept on her. PW-2 in similar lines has given the statement before the learned Magistrate under Section 164 of Cr.P.C. PW-2 has stated that accused had bitten her cheek, however, the same is not corroborated with the evidence of PW-3 and the medical certificate at Ex.P-3. PW-3 the doctor who examined PW-2 has stated that she examined PW-2 and there were no signs of vaginal penetration to PW-2, but there were signs of genital assault. In the cross-examination, she admitted that the redness of skin would also occur even if any force was used on the said part of the skin. The trial Court, on appreciation of evidence of PWs-2 & 3, came to the conclusion that there might be some other reason for redness of the private part of PW-2 and there was no evidence on record to come to a definite conclusion that accused sexually assaulted PW-2. PW-5, father of PW-1, stated that on the said day PW-1, CW-3 Lokesh and their minor son went to their relative's house to attend some function. However, PW-1 deposed that on the said night, she alone went to relative's house. PW-5, father of PW-1, stated that on the said day PW-1, CW-3 Lokesh and their minor son went to their relative's house to attend some function. However, PW-1 deposed that on the said night, she alone went to relative's house. Hence, there is a major discrepancy in the evidence of PWs-1 and 5 with regard to the presence of her minor son in the house and also accompany of CW-3 Lokesh with PW-1 to the neighbour's house. Hence, the evidence of both these witnesses is not worthy to be believed. 18. On re-appreciation of entire evidence available on record, this Court is of the considered opinion that there are a number of contradictions in the evidence of PWs-1, 2 & 5. Prosecution has not examined any independent witness other than the family members, for the reason best known to it. The prosecution has not examined CW-3 Lokesh, the father of victim. The material on record clearly indicates that the prosecution has not recovered the clothes of the victim and accused, which is fatal to the investigation. The trial Court on analysis of entire evidence rightly came to the conclusion that the evidence adduced by the prosecution is not sufficient to prove the guilt of the accused and gave benefit of doubt to the accused. This Court does not find any error or perversity in the findings recorded by the trial Court calling for interference in the judgment of acquittal passed by the trial Court. 19. For the aforementioned reasons, we do not find any merit in this appeal. Accordingly, the same is dismissed. 20. The High Court Legal Services Committee is hereby directed to pay Honorarium of Rs. 10,000/- to Smt. K.M.Archana, learned counsel for the service rendered by her as Amicus Curiae for respondent No.1.