JUDGMENT : PARTHA SARATHI SEN, J. 1. In this appeal as filed on behalf of the State the judgement and order of acquittal dated November 16, 2021 as passed in Special Trial No. 21 of 2015 arising out of Special Case No. 20 of 2015 by the Learned Special Judge (POCSO) Andaman & Nicobar Islands, Port Blair has been impugned. By the said judgement learned Trial Court found the accused not guilty under Sections 363/342 IPC and under Section 9/10 of the POCSO Act, 2012 and thus acquitted him under Section 235 (1) Cr. P.C. 2. The State felt aggrieved and thus preferred the instant appeal after obtaining a leave from this Court under Section 378 (3) of Cr.P.C. 3. For effective adjudication of the instant appeal the facts leading to the initiation of the aforementioned Sessions Trial is required to be dealt with in a nutshell. One X (name not disclosed a per direction of the Hon’ble Apex Court since the victim is a child) a female child of Nine years old of Y place and a student of Class V was taken before the Child Line Team and before the said Child Line Team the said X stated that she used to live with her mother and her brother in the village ‘Z’. 4. She stated further that on 09.4.2015 when she was playing with a child of her village at that time at about 12 O’clock noon as per request of one of her aunt by village courtesy went to a shop to bring some grain when the said child met with the accused who persuaded her to sit in his auto. The accused thereafter took her into a room of a nearby house. The accused entered into the room with the said child and locked the door from inside. The accused showed some photos from his mobile and thereafter he led and made the said child to lay on him. The accused touched the waist of the child. The child became afraid and started crying and thereafter the accused wiped her tears and offered some money to her which the said child refused to accept and when the accused opened the door the child fled from the said house and reported the matter to her mother. 5. On the basis of aforementioned version of the said victim child an intervention report was prepared. 5. On the basis of aforementioned version of the said victim child an intervention report was prepared. The same was submitted with the SHO of Aberdeen PS and accordingly Aberdeen PS case No. 186 of 2015 dated 10.04.2015 under Section 342/363/354-A (i) IPC and under Section 7/8 POCSO Act was stated. 6. Investigation was taken up and on completion of the same charge sheet was submitted under Sections 342/363/354-A (i) IPC and under Section 7/8 of the POCSO Act against the accused. 7. On September 17, 2015 learned Trial Court considered the charges against the accused and framed charges under Section 363/342 IPC and under Section 10 POCSO Act. The accused denied the charges as levelled against him and claimed to be tried and thus trial before the learned Trial Court proceeded. 8. In order to bring home the charges the prosecution has examined as many as ten witnesses in all and several documents have been exhibited on their behalf. 9. Trial Court record reveals that on behalf the accused no evidence was adduced. However, from the trend of cross examination of PWs as well as from the answers as given by the accused in his examination under Section 313 Cr.P.C. it appears to this Court that the defence case is based on clear denial and false implication. 10. Trial Court record revels further that the victim deposed as PW 1, while her mother deposed as PW 2. PW 3, PW 4, PW 5 and PW 6 are the co-villagers of the PW 1 and PW 2. PW 7 is the then SHO of PS Aberdeen. PW 8 is a Head Constable of Police who at that material time was posted at the said PS and is the recording officer. PW 9 is the Doctor who examined the victim girl as well as the accused. PW 10 is the Investigating officer. 11. Since in the impugned judgement learned Trial Court has elaborately discussed the evidence as adduced by all the prosecution witnesses this Court shall not make any venture to reproduce those evidence all over again except to the extent those are necessary for effective disposal of the instant appeal. 12. PW 10 is the Investigating officer. 11. Since in the impugned judgement learned Trial Court has elaborately discussed the evidence as adduced by all the prosecution witnesses this Court shall not make any venture to reproduce those evidence all over again except to the extent those are necessary for effective disposal of the instant appeal. 12. In course of hearing learned Public Prosecutor appearing on behalf of the appellant/State in his usual fairness submitted before this Court that the charge under Section 10 of the POCSO Act has been wrongly framed against the respondent accused since the provision of Section 9 of the POCSO Act has got no manner of application in respect of the alleged offence committee by the respondent/accused, since the accused is neither a Police Officer nor a member of the Armed forces nor of security forces, nor a public servant, nor a managerial staff of a correctional home nor of any other remand home, nor of a Hospital, nor of an Educational Institution. It is further submitted by him that there is no allegation of gang rape against the accused. 13. Learned Public Prosecutor thus submits that in the instant appeal he would confine his argument in respect of the charges under Section 363/342 IPC only. 14. It is argued by learned Public Prosecutor that from the evidence of PW 1 it would reveal that she is a truthful witness and sufficient evidence has been led by PW 1 who is the victim as to how she has been enticed by the accused to go with him on the relevant day and hour and therefore the victim PW 1 being a minor of nine years age was taken out of the custody of lawful guardianship of the said minor that is PW 2 and therefore the penal provision of Section 363 is clearly attracted which the learned Trial Court has failed to visualise. Drawing further attention of this Court to the evidence of PW 1 and PW 2 it is submitted that it has been testified by PW 1 (victim) that the accused on the relevant day and hour took her to a room and thereafter closed the door and made to sit her on her person. It is thus submitted that all the ingredients of Section 340 IPC is thus clearly been attracted as against the accused. It is thus submitted that all the ingredients of Section 340 IPC is thus clearly been attracted as against the accused. Drawing attention to the statement of the victim as recorded under Section 164 Cr.P.C it is submitted that at the earliest opportunity the statement of the victim was recorded and in such statement the version of the victim is identical with her deposition. It is thus submitted by the learned Public Prosecutor that there is no justification on the part of the learned Trial Court to disbelieve the testimony of PW 1 who is not only a minor but also she herself is the victim who cannot have any intention to screen the real offender and to implicate an innocent. 15. Learned Public Prosecutor thus submits that it is a fit case for allowing the instant appeal and for passing a judgement of conviction and order of sentence under Section 363/342 IPC against the respondent/accused. 16. Per contra, Mr. Sharukh, learned advocate appearing on behalf of the respondent also places his reliance upon the evidence of PW 1. It is submitted by Mr. Sharukh that from the cross-examination of PW 1 it would reveal that PW 1 though a minor is a tutored witness and further she had deposed falsely on account of a previous enmity of her mother with the accused. Drawing attention to the evidence of PW 6 it is submitted that from the evidence of PW 6 it would reveal that in his cross examination it has been stated by said witnesses that the offending vehicle i.e. the auto remained parked for the last three days prior to the alleged occurrence of the incident and during the said three days accused did not ply the said auto. 17. Placing his reliance upon a judgement dated February 12, 2024 passed in Criminal Appeal No. 1163 of 2011 (Mallappa & Ors. Vs State of Karnataka) it is submitted that in the said decision the Hon’ble Apex Court reiterated that if in a Criminal trial two views are found to be possible after appreciation of evidence the one in favour of the accused shall ordinarily be followed. Vs State of Karnataka) it is submitted that in the said decision the Hon’ble Apex Court reiterated that if in a Criminal trial two views are found to be possible after appreciation of evidence the one in favour of the accused shall ordinarily be followed. It is thus submitted that the learned Trial Court made no error of fact and/or of law in passing the judgement and order acquittal in as much as the evidence as led by the prosecution witnesses do not support the charges as framed against him. 18. On perusal of the entire materials placed as before this Court and after hearing the rival submissions as advanced from Bar, it appears to this Court that the except PW 1 (victim) the remaining private witnesses are all post occurrence witnesses. Apart from the victim there is no other ocular witness of the alleged incident. Admittedly, the examination-in-chief of PW 1 is at par with the statements made by the victim before the Child Line. However, in course of her cross-examination the victim candidly stated that she was tutored as to what she has to depose in Court. She further stated that there was previous enmity between her mother and the accused regarding the use of auto and she stated further that she gave statement to the learned magistrate as per instruction of her mother, one Rashida and Police. Such being the position it appears to this Court that the entire evidence as led by PW 1 in course of her examination-in-chief was completely demolished in course of her cross- examination. As rightly pointed out by learned Advocate appearing on behalf of the respondent that the PW 6 is the owner of the offending vehicle i.e. the auto, but in his cross-examination he stated categorically that for the last three days prior to the occurrence of the alleged incident the said auto remained parked and the accused had never used the same and further the engine of the said auto remained out of order during the said three days. As rightly pointed out by learned advocate for the respondent that even after adducing such type of evidence PW 6 was not declared hostile by the prosecution and therefore, the answers as given by PW 6 in course of his cross- examination definitely affects the genuineness of the charges as framed against the accused. 19. As rightly pointed out by learned advocate for the respondent that even after adducing such type of evidence PW 6 was not declared hostile by the prosecution and therefore, the answers as given by PW 6 in course of his cross- examination definitely affects the genuineness of the charges as framed against the accused. 19. At this juncture I propose to look to the reported decision of State of Rajesthan vs. Naresh reported in 2010 (1) C.Cr.LR (SC) 8 wherein the Hon’ble Apex Court while dealing with the duty of a superior Court of an order of acquittal expressed the following view:- “There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilt is no less than from the conviction of an innocent.” 20. The same view was taken in the reported decision of Anil Kumar vs State of UP. /b> reported in (2004) 13 SCC 257 and Chandrappa vs State of Karnataka reported in (2007) 4 SCC 415. 21. In the unreported decision of the Mallappa (supra) as cited from the side of the respondent the Hon’ble Apex Court expressed the following view. “36. Our criminal jurisprudence is essentially based on the promise the no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. In the unreported decision of the Mallappa (supra) as cited from the side of the respondent the Hon’ble Apex Court expressed the following view. “36. Our criminal jurisprudence is essentially based on the promise the no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The Principles which come into play while deciding an appeal from acquittal could be summarized as : (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive –inclusive of all evidence, oral or documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two view are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal; (v) It the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, if must specially address all the reasons given by the Trial Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.” 22. Coming to the factual aspects of this case it appears to this Court that on proper appreciation of the evidence of PW 1 (i.e. minor victim) it appears that her deposition is not at all trustworthy since she is found to be tutored on account of previous rivalry between her mother and the accused. It is equally pertinent to mention herein that before the learned Trial Court the statement of the victim as recorded under Section 164 Cr.P.C has not been exhibited also and therefore by no stretch of imagination it can be said that such statement has become a corroborative piece of evidence without being exhibited. The evidence of PW 6 who is owner of the offending vehicle i.e. the auto does not support the case of the prosecution. The evidence of PW 6 who is owner of the offending vehicle i.e. the auto does not support the case of the prosecution. In further considered view of this Court the evidence of other private prosecution witnesses are based on hearsay since they are post occurrence witnesses and thus their evidence has got no value in the eye of law. 23. In the facts and circumstances as discussed herein above this Court finds no merit in the instant appeal and accordingly instant appeal is dismissed. 24. Consequently the judgement and order dated November 16, 2021 as passed in Special Trial No. 21 of 2015 arising out of Special Case No. 20 of 2015 by the Special Judge (POCSO) Andaman & Nicobar Islands, Port Blair is hereby affirmed. 25. The appellant Shiv Shankar who is now in custody by the order of this Court be set at liberty at once, if not wanted in connection with any other case. 26. Registry is directed to communicate a copy of this judgement to the Superintendent of Correctional home where the respondent Shiv Shankar is detained now, for his immediate release, if the respondent is not wanted in connection with any other case. 27. Registry is further directed to forward a copy of this judgement to the learned Chief Judicial Magistrate, Port Blair, South Andaman for her information and record. 28. Let another copy of this judgement be forwarded to Member Secretary, SLSA, Port Blair, A&N Islands who on receipt of the same shall take up the matter with the Superintendent of the Correctional Home where the present respondent is detained now for release of the respondent forthwith. 29. Member Secretary, SLSA, Port Blair, A&N Islands is further directed to pay the requisite amount of honorarium to Mohd. Sharukh, learned Advocate as per his entitlement preferably within a month from the date of communication of this judgement. 30. Trial Court Record be sent down at once. 31. Urgent Photostat certified copy of this judgement, if applied for, may be supplied to the parties upon compliance of usual formalities.