JUDGMENT : TIRTHANKAR GHOSH, J. 1. The present appeal has been preferred against the judgement and order of acquittal dated 16.02.2022 passed by the learned Special Judge (POCSO Act), North and Middle Andaman, Mayabunder in connection with Special POCSO ST No. 13 of 2020 arising out of Special POCSO Case No. 20 of 2020, wherein the learned Special Court was pleased to acquit the accused respondent from the charges under Section 5/6 of POCSO Act and Section 376/506 of the Indian Penal Code. 2. Diglipur PS case No. 48/2020 dated 07.05.2020 was registered for investigation on the basis of the complaint of the mother of the victim girl. The said statement of the mother of the victim girl (hereinafter referred to as ‘Y’) was recorded by the Inspector being the Station House Officer of the Diglipur. She alleged that she was residing with her two daughters and second husband (who is the accused of the case) in a rented house at Madhupur. The victim ‘X’ was born out of the first wedlock who was aged about 10 years and her second husband used to abuse her elder daughter and in the year 2019, he did certain wrong things with her elder daughter/victim for which a POCSO case was already filed against him. Again on 04.05.2020, in the afternoon when she had been to the bank, her daughter told her that in her absence her stepfather took off her pants and also his own pants and inserted his private part into her private part. Due to lockdown in Corona she could not immediately report to the Police Station and on 06.05.2020 at night she had been to CHC Diglipur because her health condition was very bad and she informed her neighbour Sangita Mondal, to inform the Police Station as the child was alone in her home so that no further wrong is committed upon her. On 07.05.2020 the said Sangeeta Mondal informed the police station at Diglipur and, as such, when the police approached her, she made her statement. She requested the police authorities to take action against the accused. 3. The investigating agency, in order to prove its case examined number of witnesses and also relied upon a series of documents. On 07.05.2020 the said Sangeeta Mondal informed the police station at Diglipur and, as such, when the police approached her, she made her statement. She requested the police authorities to take action against the accused. 3. The investigating agency, in order to prove its case examined number of witnesses and also relied upon a series of documents. The learned Special Court, on perusal of the documents relied upon by the prosecution in support of its report under Section 173 of the Code of Criminal Procedure, framed charges under Sections 5 (l) (m) of the POCSO Act which were punishable under Section 6 of the said Act and also under Section 506 of the Indian Penal Code. 4. The prosecution, in order to prove its case relied upon PW 1, ‘X’ -the victim; PW 2 ‘Y’ mother of the victim and the complainant; PW 3 Sangeeta Mondal and acquaintance of the complainant; PW 4 Dr. Nicolas, the medical officer who examined the accused; PW 5 Smt. T. Sunitha, who was posted as DCPU as Protection Officer; PW 6 is Smt. Soma Dey, Constable posted at Diglipur Police Station; PW 7 Jaba Hawaldar, Constable posted at Diglipur Police Station; PW 8 Sushil Sarkar, Constable posted at Diglipur Station; PW 9 G.Uday Bhanu, Head Constable of Diglipur Police Station; PW 10 Tamilarasan, Sub Inspector of Police attached to Diglipur Station and the Investigating Officer of the case. 5. Prosecution also relied upon number of documents being Exhibit-1 which is the statement of victim under Section 164 of the Code of Criminal Procedure; Exhibit-2 statement of the mother of the victim girl before the police authorities which has been treated to be complaint of the instant case; Exhibit-3 is seizure list by way of which the Birth Certificate of the victim girl was collected; Exhibit-4 is the Birth Certificate issued by the Registrar of the Births and Deaths; Exhibit-5 is the Medico Legal Examination Report of Sexual Violence of the victim girl; Exhibit-6 is the statement of the complainant/mother of the victim girl under Section 164 of the Cr.P.C; Exhibit-7 is the medical examination report of the accused; Exhibit-8 is the formal FIR alongwith the complaint; Exhibit-9 is the site plan/sketch map; Exhibit-10 is the requisition for obtaining the Birth Certificate as well as the Birth Certificate issued by the Department of Health Services, Port Blair. 6. 6. Before proceeding with the whole of the evidence which has surfaced in this case, it would be fit and proper to assess the material which have surfaced in course of investigation as well as the deposition in court of the victim. 7. The victim in her statement under Section 164 of the Cr.P.C narrated regarding the incident to the learned Magistrate which is set out in verbatim as follows:- “12. Please tell what you have to say. Ans. My step father has done “Ganda Kam” with me. Many day ago when my mother had gone to the bank at that time I was playing with my little sister and my friend. My father was at home and watching T.V. Suddenly, the electricity went away, My father called me inside his room. When I refused to listen to him, he came out and took me inside holding my neck. He closed his room and told my friend, namely Mum to went away. My little sister was with me. My step father opened my pant and opened his pant too. He pushed me into the floor and pulled me close to him. My father then put his thing into my body from where I pass urine. He put his “His korar jayga” into my body. He did this thing for some time with me and after it was over he told me to not tell my mother about it. The same thing had happened with me one more time some days ago. Before this case also same thing was done to me by my step father and I have given my statement before you at the Kelra junction court. I have told everything to my mother. I have also told everything to the police uncle. I have told the Doctor madam at the Diglipur hospital everything. My step-father tortures me and also beat me regularly for no reason.” In her statement before the doctor the victim stated as follows: “The child says that on 04/05/20, her mother left home for going to bank at 10 am. ‘X’ was playing with her younger step sister outside the house. When current went off in her house, her step-father called her to come to him. On denying he scolded her tocome to him she got scared and went to him. ‘X’ was playing with her younger step sister outside the house. When current went off in her house, her step-father called her to come to him. On denying he scolded her tocome to him she got scared and went to him. He closed the door of the house and threatened her to kill her with knife if she told anything to her mother. He then forcefully put her on the bend and removed her frock and underwear completely. Then he removed his pants. As per ‘X’, he forcefully inserted his “penis” inside her urinal area”. She had terrible pain and shouted, but instantly he pressed her mouth hard with his hand. ‘X’ says her step-father was thrusting himself in and out of her urinal area. He then brought out his penis and released something like a white fluid on her thighs. ‘X’ says after all this, he again threatened her to kill her with knife if she disclosed to her mother. But the same evening, she disclosed the incident to her mother, after which her mother and step-father had verbal fight after which her step-father left her home and did not come back since then. Her mother told ‘X’, that she will surely tell the police and bring them home.” 8. While deposing in court the victim deposed that the accused is her step father and he did dirty things with her at their rented house. She was asked by her step father to remove her pant and thereafter the accused remove his pant and introduced his penis in her vagina and for that reason she suffered pain. She stated such fact to her mother and her mother had been to Police Station with her and thereafter the case was initiated against her step father. The incident was reported to the Police Station when police wrote down the same and she was medically treated by the doctor before whom she also narrated regarding the incident. She also narrated the incident before the learned magistrate who had in his own hand writing written down her version which she signed. 9. The incident was reported to the Police Station when police wrote down the same and she was medically treated by the doctor before whom she also narrated regarding the incident. She also narrated the incident before the learned magistrate who had in his own hand writing written down her version which she signed. 9. As the sole testimony of the victim of sexual assault can be the foundation for arriving at a conclusion in a criminal trial in respect of the offence for which the trial has been conducted, the evidence of rest of the witnesses for the time being is not considered in view of the fact that although medical report was exhibited in this case, but the said document came in evidence during the deposition of the mother of the victim and the Doctor was not called in court to substantiate regarding the test so conducted. The report obviously reflects in serial No. 18 ‘Local examination of genital parts’ as ‘inflamed and tender to touch along with the hymen perineum being ruptured’. It was opined by the doctor under the heading ‘Additional observations’ in Exhibit-5 – ‘as per the Medico Legal Examination the child had penetrative sexual violence four days back.’ 10. One of the surprising features in the trial of this case, is that ten witnesses were examined and all the ten witnesses were examined on a single day i.e. 15.02.2022 and the judgment was delivered on 16.02.2022. The learned trial court did not apply its mind as to whether any witness had been left out on behalf of the prosecution and no reason was assigned why the doctor was not examined in this case. The manner in which the medical report has been admitted in evidence, wherein the PW 2 was asked to identify her signature in the medical report and whole of the contents of the said documents was admitted in evidence being marked as Exbibit-5 is not acceptable to this Court, as the very foundation of a criminal trial is quest for finding out the truth. Both the victim and the accused must get equal opportunity before a court of law. In this case, medical evidence would corroborate the oral accusations of the victim and would lay the factual foundation as is required for attracting the presumption under Section 29 of the POCSO Act. 11. Both the victim and the accused must get equal opportunity before a court of law. In this case, medical evidence would corroborate the oral accusations of the victim and would lay the factual foundation as is required for attracting the presumption under Section 29 of the POCSO Act. 11. Having considered the manner in which the evidence has been recorded in this case on one single day without assigning any reasons as to who are the witnesses who have been left out and whether any further witness was required to be examined for the interest of justice or not, we are of the view that the order of acquittal which has been passed by assigning reasons from the evidence which can be said to be attending circumstance are not in consonance with the tenor and sprit or object of the POCSO Act or offences relating to sexual abuse against a child. 12. The judgment and order under challenge at the instance of the state in respect of the order of acquittal cannot be sustained. 13. Accordingly the judgement and order of acquittal dated 16.02.2022 passed by the learned Special Judge (POCSO Act), North and Middle Andaman, Mayabunder in connection with Special POCSO ST No. 13 of 2020 arising out of Special POCSO Case No. 20 of 2020 is hereby set aside. 14. Consequently CRA(DB)/5/2022 is allowed. 15. The learned trial court is directed to issue a bailable warrant and thereafter ensure the appearance of the accused by issuing harsher process of law if required. The learned trial court will issue notice upon the Investigating officer of the case to find out whereabouts of the medical officer and or the other witnesses who have been left out. To that extent, the learned trial court will exhaust the provision of the Section 311 of Code of Criminal Procedure and arrive at a fresh finding by delivering his own judgement. 16. If fresh evidence is recorded, the learned trial court obviously will grant opportunity to the accused to explain the incriminating circumstances appearing against him by way of further examination under Section 313 of the Code of Criminal Procedure and thereafter reassess whole of the evidence and thereby independently arrive at his own or decision after re-appreciating the evidence in view of the additional evidence so recorded. 17. 17. The department is directed to send back the Lower Court Records to the learned Special Court (POCSO Act) North and Middle Andaman, Mayabunder within a week from date. The learned trial court on receipt of the record would immediately follow the steps as has been directed above. 18. Pending connected applications if any is disposed of. 19. Urgent Photostat certified copy of this judgement, if applied for, be supplied to the parties, subject to compliance with all requisite formalities. SHAMPA SARKAR, J.- I agree.