The High Court noted that the child had gone with her father to Haldwani on March 23 her mother consented to the same.
She used to talk to her mother almost everyday on the mobile phone of her father.
It particularly took note of an email that supported the Court's finding that the alleged claim of penetrative sexual assault was concocted over time.
However, no mention was made about any penetrative sexual assault as claimed in the criminal complaint eventually filed against the accused, the Court noted.
was preceded by filing of a divorce petition by the father of the victim," the Court said.
The High Court noted that the child had gone with her father to Haldwani on March 23 her mother consented to the same. The daughter stayed there for 10 days, it added.
"The time which the child had spent with the father was a very cheerful one. She used to talk to her mother almost everyday on the mobile phone of her father. We also find that during her stay, the child had her separate mobile phone which was given to her by her father. She had taken certain photographs which had also been placed on record," the Bench further noted.
After going through the evidence, the Court concluded that the mother, through her actions, embroiled the child in the fight between the husband and the wife.
It particularly took note of an email that supported the Court's finding that the alleged claim of penetrative sexual assault was concocted over time.
In the said email, the mother had called her estranged husband a paedophile and accused him of running a house in Haldwani like a den of "drunkards and rapists", adding that her daughter knew about "bad touches" and now considered her father a stranger. However, no mention was made about any penetrative sexual assault as claimed in the criminal complaint eventually filed against the accused, the Court noted.
"We find that bad touch and the other allegations made in the email would have at the most led to a conviction under Section 7 of the POCSO Act whereby a sexual assault which included, even a sexual intent was punishable for 3 to 5 years with fine and therefore a story was concocted with the passage of time about the insertion of a test tube inside the private part of the victim. This took almost two months and even the lodging of the F.I.R. was preceded by filing of a divorce petition by the father of the victim," the Court said.
The Court also said that there was a contradiction in the statements of the minor and her mother. It noted that while the minor had claimed that her father blocked her mother's phone number, she also said that she used to talk to her mother everyday from Haldwani.
The Court went on to hold that a delay noticed in the registration of the case was because the mother "manoeuvering" a plan indict her estranged husband in criminal offences that could make him face an imprisonment for life.
"We also find that the victim had been with the mother since 2017 when she was only 5 years of age. She continued to stay with her mother till she came to testify in the Court i.e. till she was ten years of age. Undoubtedly, she was suffering the agonies which her mother was undergoing because of the strained marriage relationship with her husband and this definitely would have led her to get tutored with whatever her mother suggested her to learn," the Court further said.
The Court found that there was a congenial relationship between the child and her father as well, because photographs placed before it showed her hugging her father and affectionately looking up to him.
