JUDGMENT : SANJAY K. AGRAWAL, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'CrPC'), the present appeal has been preferred by the two appellants, i.e., A-1 Rajesh Panika (now died) and A-2 Laxman, against the judgment and order dated 9.8.2016 passed by the Additional Sessions Judge (F.T.C.), Surguja (Ambikapur)/Special Judge under Protection of Children from Sexual Offences Act, 2012 in C.Reg. (SPL.ST.POCSO) No.24/2015, by which both the appellants have been convicted for the offences punishable under Section 376D of the Indian Penal Code, 1860 (for short, ‘IPC’) and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and for each of the offences, they have been sentenced to undergo Rigorous Imprisonment for Life with fine of Rs.1000/- and in the event of non-payment of fine amount, to undergo additional Simple Imprisonment for three months, with a direction to run all the sentences concurrently in accordance with law. 2. Both the appellants were charge-sheeted for the aforesaid offences before the Trial Court alleging that on 7.3.2015 at 9:30 a.m. in Village Potka, under the bridge, both of them in furtherance of their common intention, committed gang rape/ penetrative sexual assault on the minor victim (PW-7) punishable under Section 376D of IPC and Section 5(g)/6 of POCSO Act. 3. Case of the prosecution, in nutshell, is that on 7.3.2015 at 9:30 a.m., the victim (PW-7) on her bicycle was going to her uncle Ram Kishore’s house for the purpose of performing some agriculture operation and on way to Jamdai route, on the bridge, A-2 Laxman pulled her bicycle’s carrier on account of which, she fell down and just prior to that, A-1 Rajesh and A-2 Laxman both had smeared colour (gulal) on her (as it was holi festival). Thereafter, A-2 Laxman caught hold of her legs and A-1 Rajesh caught hold of her hands and took her under the bridge and committed sexual intercourse with her forcibly one by one. It is the case of the prosecution that, hearing the hue and cry of the victim, DW-1 Komal Chand who was present in the nearby field at that time to answer the nature’s call, had come to the spot and witnessed the said incident but the appellants abused him to leave from the spot. It is the case of the prosecution that, hearing the hue and cry of the victim, DW-1 Komal Chand who was present in the nearby field at that time to answer the nature’s call, had come to the spot and witnessed the said incident but the appellants abused him to leave from the spot. After committing sexual intercourse with her, the appellants left her and threatened her not to tell about the said incident to anyone and told that they would give money to her. Thereafter, the victim left her bicycle at the place of incident and reached her home and informed her parents about the incident. 4. Subsequently, the matter was reported by PW-1, father of the victim, at Police Station Udaypur where F.I.R. was registered vide Exhibit P-1. Spot Map and Nazri Naksha were prepared vide Exhibits P-17 & P-4. The victim was medically examined by PW-9 Dr. Manorama Minj vide Exhibit P-24 signed by Dr. Shrishti Pande and vaginal slide of the victim was prepared for chemical analysis and seized vide Exhibit P-25. Her underwear was seized vide Exhibit P-21. A-1 Rajesh and A-2 Laxman were also medically examined vide Exhibits P-8 & P-7 and their underwears were seized vide Exhibits P-26 & P-21. Statements of the witnesses were recorded and the appellants were arrested. In F.S.L. report (Exhibit P-31), stains of semen and human sperms were found on the undergarment and vaginal slide of the victim vide Exhibit-A & Exhibit-B as well as on the undergarments of A-1 Rajesh and A-2 Laxman vide Exhibit-C and Exhibit-D. 5. After completion of the investigation, the appellants were charge-sheeted before the Trial Court for the aforesaid offences and the matter was put to trial and its disposal in accordance with law, in which the appellants abjured their guilt, took a plea of false implication and entreated for trial. 6. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses as PW-1 to P-10 and exhibited 31 documents from Exhibits P-1 to P-31. Though prosecution has examined the said witnesses in support of its case but Komaldas, who is one of the cited witnesses of the prosecution, has not been examined by the prosecution. Though prosecution has examined the said witnesses in support of its case but Komaldas, who is one of the cited witnesses of the prosecution, has not been examined by the prosecution. However, the said witness Komalchand has been examined as DW-1 on behalf of the defence and his statement recorded under Section 161 of CrPC has also been relied as Exhibit D-1. Statements of the appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 7. After conclusion of the trial, the Trial Court, by impugned judgment and order dated 9.8.2016, on appreciation of the oral and documentary evidence available on record, has convicted both the appellants for the offences punishable under Sections 376D of IPC and Sections 5(g)/6 of POCSO Act and on each count, sentenced them to undergo Rigorous Imprisonment for Life and fine of Rs.1000/- with default stipulation, against which the present appeal has been filed by the appellants calling in question the legality, validity and correctness of the impugned judgment. 8. Ms. Avit Lakra, learned counsel appearing for the appellant, would submit that DW-1 Komalchand was admittedly an eye-witness to the incident and some part of the incident where the two appellants had smeared colour on the victim was witnessed by him and he has clearly stated that after smearing colour on the victim, the appellants and the victim had parted their ways. She would further submit that non-examination of the said material witness by the prosecution is a menace to the prosecution case since, as per the settled law, same treatment is required to be given to the defence witness as is given to the prosecution witness and even otherwise an adverse inference has to be drawn in view of Section 114(g) of the Indian Evidence Act, 1872 (for short, 'the Evidence Act'). Therefore, the appellants are entitled to acquittal on the basis of benefit of doubt as the prosecution has failed to bring home the offence beyond reasonable doubt and the appeal deserves to be allowed accordingly. 9. Mr. Therefore, the appellants are entitled to acquittal on the basis of benefit of doubt as the prosecution has failed to bring home the offence beyond reasonable doubt and the appeal deserves to be allowed accordingly. 9. Mr. Sameer Oraon, learned State Counsel, per contra, would submit that it is a case of gang rape where the victim (PW-7) has clearly supported the case of the prosecution and the two appellants have been named in the F.I.R. and the F.S.L. report is also found positive. He would further submit that the prosecution is not bound to examine all its witnesses. The prosecution is at liberty to withhold the examination of its witnesses and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. Even otherwise, the testimony of defence witness, DW-1 Komalchand, is not that the appellants have not committed gang rape on the victim and the victim has no reason to falsely implicate the appellants that too for an offence of gang rape. As such, the impugned judgment does not warrant interference and the appeal deserves to be dismissed. 10. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 11. The two appellants, one of which, A-1 Rajesh, has now died, have been convicted for the offence punishable under Section 376D of IPC and Section 5(g)/6 of POCSO Act on the oral testimony of the minor victim (PW-7). According to the prosecution, admittedly, the incident had happened on 7.3.2015 on the main road, as per Nazri Naksha (Exhibit P-4) proved by the father of the victim (PW-1), while the victim was going to the field of her uncle. According to the victim, the two appellants had smeared colour on her (since it was Holi festival on the date of incident) and thereafter they had taken her under the bridge forcibly and committed sexual intercourse with her one by one. According to the victim, the two appellants had smeared colour on her (since it was Holi festival on the date of incident) and thereafter they had taken her under the bridge forcibly and committed sexual intercourse with her one by one. In her cross-examination, the victim has admitted that at that time Komalchand (who was listed as the prosecution witness but not examined by the prosecution as its witness rather he has been examined by the defence as DW-1) had come to the spot as per his own statement recorded under Section 161 of CrPC, but A-2 Laxman abused him to leave from the spot, and the victim knew Komalchand prior to the date of incident. Thereafter, the victim reached her home and informed about the incident to her parents and then F.I.R. (Exhibit P-1) was lodged by her father (PW-1) on the same day. Subsequently, on the very same day, the victim was medically examined by Dr. Manorama Minj (PW-9) vide Exhibit P-24, signed by Dr. Shrishti Pande, in which no external injuries were found on the body of the victim. Her hymen was old and ruptured and she was found to be habitual of sexual intercourse. Her vaginal slide was prepared for chemical analysis and seized on 7.3.2015 itself vide Exhibit P-25. Thereafter, the Superintendent of Police, Surguja vide Exhibit P-29 dated 9.4.2015 had sent the vaginal slide of the victim seized vide Exhibit P-25, the undergarment of the victim seized vide Exhibit P-21 as well as the undergarments of A-1 Rajesh and A-2 Laxman seized vide Exhibit P-26 & P-19, for chemical examination to the Forensic Science Laboratory, Ambikapur where the said articles were received on 13.4.2015 vide Exhibit P-30, though all the said articles were seized on 7.3.2015 itself. The Investigating Officer, PW-10 V.K. Awasthi, in his statement before the Court has admitted that from 7.3.2015 to 13.4.2015 where were the said seized articles including the vaginal slide of the victim kept, is not mentioned in the charge-sheet but it is mentioned in the case-diary. The statement of the victim under Section 164 of CrPC was recorded on 11.3.2015 vide Exhibit P-22 in which also she has implicated both the appellants. 12. The statement of the victim under Section 164 of CrPC was recorded on 11.3.2015 vide Exhibit P-22 in which also she has implicated both the appellants. 12. DW-1 Komalchand, whom the victim knew prior to the date of incident, came to spot on the main road where the incident took place as at that time he was there in the nearby field to answer the nature’s call but, according to the victim, the appellants abused him to leave from the spot. However, in his statement before the Court, DW-1 Komalchand has stated that while he was answering the nature’s call, he saw the two appellants smearing colour on the victim when she was going on her bicycle and thereafter both the appellants had gone to their way and the victim had reached her home after leaving her bicycle at the spot and the appellants had not committed sexual intercourse with the victim. He has been contradicted with reference to his statement recorded under Section 161 of CrPC that he has not stated that the incident has happened before him and the appellants have not committed sexual intercourse with the victim and omitted the said part of his statement in his 161 CrPC statement. However, that part of the omission has only been contradicted from DW-1 Komalchand and it has not been contradicted from the Investigating Officer PW-10 V.K. Awasthi, who has recorded the 161 CrPC statement of DW-1 Komalchand vide Exhibit D-1, in order to complete the contradiction in light of the decision of the Supreme Court in the matter of V.K. Mishra & Anr. v. State of Uttarakhand & Anr., AIR 2015 SC 3043 . However, the Trial Court relying upon the testimony of the victim (PW-1) and the medical evidence available on record, proceeded to convict the two appellants, one of which, A-1 Rajesh, has since died and A-2 Laxman is before us. 13. Thus, from the aforesaid discussion and the evidence available on record, the following facts are quite vivid on the face of record :- (1) The date of offence is 7.3.2015 and the incident had happened on the main road as per Nazri Naksha (Exhibit P-4). 13. Thus, from the aforesaid discussion and the evidence available on record, the following facts are quite vivid on the face of record :- (1) The date of offence is 7.3.2015 and the incident had happened on the main road as per Nazri Naksha (Exhibit P-4). (2) It is admitted position on record and is not dispute that the two appellants had smeared colour on the victim (PW-7) as per her own statement recorded under Section 164 CrPC on 11.3.2015 before Judicial Magistrate First Class, Surguja. (3) In medical examination (Exhibit P-24) of the victim, her hymen was found old and torn and she was found to be habitual of sexual intercourse and no internal or external injury was found on her body. (4) Vaginal slide of the victim was prepared vide Exhibit P-24 on 7.3.2015 itself but it was submitted to the F.S.L. for chemical analysis along with the undergarments of the victim and the appellants on 9.4.2015 vide Exhibit P-29 issued by the Superintendent of Police, Surguja and received by the Office of the F.S.L. Ambikapur on 13.4.2015 vide Exhibit P-30. (5) As per the statement of the Investigating Officer PW-10 V.K. Awasthi, from 7.3.2015 to 13.4.2015 where were the seized undergarments including the vaginal slide kept the same is not mentioned in the charge-sheet and it is mentioned in the case-diary. 14. As such, there is no evidence on record that the vaginal slide seized on 7.3.2015 and sent for chemical analysis on 9.4.2015 and received by the office of F.S.L. Ambikapur on 13.4.2015 was kept in a safe custody and there is no reason for keeping it for more than one month with the police without any rhyme or reason. 15. From the aforesaid facts, it is quite also vivid that there was no external injury over the body of the victim as such the medical report (Exhibit P-24) is not supporting the case of the prosecution. In the F.S.L. report (Exhibit P-31) though stains of semen and human sperms were found in the vaginal slide and on the undergarments of the appellants and the victim but the F.S.L. report does not free from doubt as there is a delay of more than one month in sending the vaginal slide to the F.S.L. Ambikapur. 16. In the F.S.L. report (Exhibit P-31) though stains of semen and human sperms were found in the vaginal slide and on the undergarments of the appellants and the victim but the F.S.L. report does not free from doubt as there is a delay of more than one month in sending the vaginal slide to the F.S.L. Ambikapur. 16. Though DW-1 Komalchand, who was present at the spot, was cited by the prosecution as its Witness No.9, but he was not examined by the prosecution for the reasons best known to them and while examined as a defence witness, he has not supported the case of the prosecution. It is well settled law that defence witnesses are entitled to equal treatment with those of the prosecution and the courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses (See Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166 ). Similarly, in the matter of Mahendra Singh & Ors. v. State of Madhya Pradesh, (2022) 7 SCC 157 , the Supreme Court has held that it is settled law that same treatment is required to be given to the defence witnesses as is given to the prosecution witnesses. 17. The victim knew DW-1 Komalchand, who has been examined before the Court as defence witness, prior to the date of incident and she has also admitted in her statement that Komalchand had come to the spot and seen the two appellants smearing colour on her but, according to her, he was abused and forced to leave the place of incident by the appellants. DW-1 Komalchand has also in his statement before the Court has clearly stated that the two appellants had smeared colour on the victim and thereafter both the appellants had gone to their way and the victim after leaving her bicycle had gone to her house and no sexual intercourse/ molestation was committed by the appellants with her and they had only smeared colour on her and he was standing on the spot. However, he has contradicted in his statement under Section 161 CrPC (Exhibit D-1) that he has not stated in his 161 CrPC statement that the incident has happened before him and the appellants did not commit sexual intercourse with the victim and he has given the statement to the Investigating Officer and why it has not been written in Exhibit D-1 he cannot tell and he remained on the spot for half an hour. 18. In the matter of V.K. Mishra (supra), the Supreme Court has held that in order to contradict a witness not only the witness who has made statement under Section 161 CrPC, the witness as well as the Investigating Officer both have to be confronted by referring to the police statement and held in para- 15, 16, 18 & 19 as under :- "15. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary. 16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 18. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction. 18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction. 19. In the case at hand, PW-1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. 19. In the case at hand, PW-1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW-1 nor the investigating officer were confronted with the statement and questioned about it, PW-1’s statement recorded under Section 161 Cr.P.C. cannot be looked into for any purpose much less to discredit the testimony of PW-1 and the prosecution version." 19. In light of the aforesaid decisions of the Supreme Court, though the defence witness, DW-1 Komalchand, has been referred to his 161 CrPC statement but the Investigating Officer has not been confronted with that statement. Therefore, we cannot use the statement of the police which has not been proved in compliance with Section 145 of the Evidence Act by drawing attention to that part of the statement of the Investigating Officer. In that view of the legal position, since same treatment is required to be given to a defence witness as is given to a prosecution witness and DW-1 Komalchand was admittedly present at the time of incident as per the statement of the victim herself and, according to his statement made before the Court, only except smearing colour on the victim, the two appellants did not commit sexual intercourse/molestation with the victim, there is no reason to reject the statement of DW-1 Komalchand in absence of valid contradiction of his 161 CrPC statement by the prosecution, more particularly when the appellants have been convicted under Section 376D of IPC and the offence has to be proved beyond reasonable doubt and there should not be an iota of doubt in the mind of the Court while convicting for the said offence as stringent punishment i.e., minimum 20 years of imprisonment, has been prescribed for the offence punishable under Section 376D of IPC and which the prosecution has miserably failed to prove. Even otherwise though conviction can be based upon the sole testimony of the victim but in view of the eye-witness DW-1 Komalchand who was present on the sharad spot and to whom the prosecution has not examined though listed as a prosecution witness, we are of the considered view that the Trial Court is absolutely unjustified in convicting the two appellants for the offence punishable under Section 376D of IPC and Section 5(g)/6 of POCSO Act and both the appellants therefore are liable to be acquitted on the basis of benefit of doubt. 20. Accordingly, we set aside the impugned judgment and order dated 9.8.2016 and acquit the appellants of the charges under Section 376D of IPC and Section 5(g)/6 of POCSO Act. A-1 Rajesh has since died. A-2 Laxman is stated to be in jail since 8.3.2015. He be set at liberty forthwith, if his detention is not required in any other offence. 21. This criminal appeal, accordingly, stands allowed. 22. Let a certified copy of this judgment along with the original record be transmitted to the concerned Trial Court and the Superintendent of Jail for information and necessary action, if any, at the earliest.