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(1) The time of the alleged incident has not been established; (2) The residence of the accused and the complainant's house are doubtful;

(3) Provisional medical report, FSL report and the entire case of the prosecution is doubtful, as witnesses have not supported the material fact.

21. The defence of innocence of the accused is now ruled out, as because the prosecution has discharged the initial burden. Therefore, it is the accused to rebut the materials placed on record by the prosecution. In the written arguments it is high-lighted the contradictions, omissions and improvements etc., and the learned counsel for the accused specifically argued that, because of said material contradictions and improvements supporting the defence of the innocence of the accused and his false implication, the accused is entitled for acquittal.

25. It is specifically argued by the learned counsel for the accused regarding the residence of the accused, contents of Medical Report and FSL Report and submitted that, "the accused, victim resided in the sheet house at Kalappa Layout, Basavangara, Bangalore. It is also stated that, Mohamed Yusoof resides in a sheet house in the same place and it was he who rescue the victim from the accused. PW-13 Nanjundappa states that he has not given sheet house on rent either to the accused or to the family of the victim and he also states that, he also does not know who is Mohammed Yusoof and he has not given any shed on rent to them. Therefore the place of alleged incident and their inmates itself are doubtful and the prosecution has not been successful in establishing the same." But, the material issue is the place of incident. PW13 specifically in his statement during his chief examination has stated that: "gÀvÀ£ïzÁ¸ï CAzÀgÉ DgÉÆæUÉ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è ¨ÁrUÉUÉ PÉÆnÖzÉ" and that he had constructed sheet houses in that layout for labours and security guards. The accused admittedly is working as a security guard. His [accused] apprehension by PWs-5 and 11 and public and handing over him to the police (PWs-6, 7 and 17) was also from that place only. Spot mahazar as per Ex.P3 is having evidentiary value as PWs-1 and 17 gave evidence about the place of occurrence, which is of rented house of the accused only. The material witnesses PWs-1, 5 to 9 and 11 specifically the victim girl/PW2 have stated the very sheet house of the accused i.e., the place of incident. Hence, it is clear proof of place of incident. Said defence does not sustain. The prosecution has successfully established the place of incident.

30. The learned defence counsel referring Ex.P12 has argued that, "provision medical report given by the medical officer of Bowring and Lady Curzon Hospital states that there is no external injury anywhere in the body of the victim". She further argued that, "entire case of the prosecution, nowhere 'Penetrative Sexual Assault' has been established or proved. The requirement of Section 3 of the POCSO Act, therefore, has not been established. It is not a case under Sec.5 of POCSO Act. Inspite of the same, Section 5 has been included". She referred Ex.P12 that, From local examination, it is stated that the "external genitalia has no injuries. No discharge is found. Most importantly hymen was found intact. Therefore the matter was referred to further examination to FSL stating that opinion regarding sexual intercourse can only be given after obtaining report from FSL". And also she further argued referring the State FSL Report [Ex.P8] the certification of examination dated: 16.5.2015. In the said FSL Report, it was opined as follows:

32. Apart from this, the accused did not made it clear with cogent evidence even during his statement recorded under Sec.313 of Cr.P.C, while reading out the incrimination evidence spoken to by material witnesses. Why the accused was in his house with PW-2/victim girl at that time; How she [victim girl] came there and why PW2/victim girl was there and why PWs-5 and 11 would speak lie against him [accused] about the said fatal incident and caught hold of him while he was indulged in committing of said criminal heinous act on the victim girl [PW2] in his house. Thus, in the absence of these facts being clarified, it is amounting to failure on the part of the accused to discharge his onus to rebut the presumption and establish the defence of innocence. The accused failed to rebut the evidence placed by the prosecution on record. So, as it is settled, as argued by the learned Public Prosecutor, that the medical reports, FSL Reports are not substantive evidence and when PWs-2/victim girl and PW-5 gave primary evidence, the discrepancies as argued the learned counsel for the accused as referred above, do not sustain, to discard the prosecution case and the evidence of PWs-1 and 5 as direct evidence shall believe that, the accused has committed aggravated penetrative sexual assault on PW2/victim girl knowingly that she was a minor, below the age of 12 years, misusing her childhood and violated her child-right to live with dignity and gave threat not to disclose the act committed on her, which was dire in nature for a child, in this case as she [PW2/victim girl] was minor. Thereby, the accused committed criminal intimidation, which is punishable under Sec.506 of IPC.