1 Crl.A.No.

821/2018

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22ND DAY OF FEBRUARY, 2024

PRESENT

THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

AND

THE HON'BLE MR JUSTICE UMESH M ADIGA

CRIMINAL APPEAL No. 821 OF 2018 (A)

BETWEEN:

State by Police Inspector

Honnali Police
Represented by State Public Prosecutor
High Court Building
Bangaluru-1 ...Appellant

(By Shri. Rajat Subramanyam, HCGP)

AND:

1. Manjappa
S/o Rudrappa
R/o Kyasinakere village
Honnali taluk,
Davanagere

2. Smt. Sarojamma
W/o Manjappa
Aged about 48 years
Kyasinakere village
Honnali taluk
Davanagere district. …Respondents

(By Sri. V.S. Vinayaka, Advocate/Amicus Curiae for R1

Notice to R2 served, unrepresented)
 2 Crl.A.No.821/2018

This Criminal Appeal is filed under Section 378(1) and (3)

of Cr.P.C. praying to grant leave to appeal against the judgment
and order dated 13.10.2017 in S.C.No.95/2016 passed by the II
Additional District and Sessions Judge and Special Judge,
Davanagere thereby acquitting the respondent for the offences
punishable under Sections 376 of IPC and Section 6 of POCSO
Act.

This Criminal Appeal coming on for Further Argument

having been heard through Physical Hearing/Video Conference
and reserved for Judgment on 20.12.2023, coming on for
pronouncement this day, UMESH M ADIGA J., delivered the
following :

JUDGMENT

This is State’s appeal challenging the judgment dated

13.10.2017 passed by the II Additional District and

Sessions Judge and Special Judge, Davanagere (for short,

hereinafter referred to as the ‘Trial Judge’) in S.C.No.95 of

2016 registered for the offence punishable under Section

376 of the Indian Penal Code (for short, hereinafter

referred to as the ‘IPC’) and Section 6 of the Protection of

Children from Sexual Offences (for short, hereinafter

referred to as the ‘POCSO’) Act, acquitting the accused for

the alleged offences.

 3 Crl.A.No.821/2018

2. Brief facts of the case of the prosecution are

that the victim girl aged about 15 years, was doing coolie

work in Kyasinakere Village, Honnali Taluk along with her

parents and others. She studied upto first standard and

thereafter, left her education and was doing household

work. The accused is known person of the victim. He was

also working as a coolie in the very same place. The

accused is also belonging to the same caste that of victim.

Regularly, they were meeting in the place of work and they

became familiar. The accused fell in love with the victim/

PW-2 and often he was telling her that he had been loving

her and he would marry her. It is the further case of the

prosecution that during lunch break, both victim and

accused used to go nearby Canal wherein movement of

people was less, sit and were chit-chatting.

About eight months prior to the filing of the

complaint, on one day when both went near Canal accused

forced her to have sexual intercourse. Inspite of refusal of

PW-2, the accused forcefully had sexual intercourse with

her, against her wish and thereafter, frequently he was

 4 Crl.A.No.821/2018

forcefully taking the victim girl near the Canal and was

having sexual intercourse with her, against her wish. As a

result of which, she became pregnant; the victim informed

the said fact to the accused and thereafter, the accused

stopped contacting her and meeting her. Therefore, she

informed her parents that accused had forceful sex with her

and due to the same she conceived.

3. It is further case of the prosecution that parents

of victim girl informed to the elders of the village about

illegal acts of the accused. They assured them that they

would hold Panchayath and persuade the accused to marry

victim girl. Accordingly, Panchayath was held and in the

Panchayath, accused denied that he was responsible for

pregnancy of the victim and refused to marry her.

Thereafter, elders of the village informed the victim and her

parents to take appropriate action against the accused by

lodging complaint to the police station. Accordingly, victim

girl lodged a complaint to the Station House Officer of

Honnali Police Station as per Ex.P1 dated 03.04.2016. The

Sub-Inspector of the Honnali Police Station on the basis of

 5 Crl.A.No.821/2018

Ex.P1, registered a case in Crime No.119 of 2016 for the

offence punishable under Section 376 of IPC read with

Section 6 of POCSO Act.

4. The further investigation was taken up by PW-

16, J.Ramesh, CPI of Honnali Circle and on conclusion of

the investigation submitted the charge-sheet against the

accused for the offence punishable under Section 376 of

IPC and Section 4 of POCSO Act, before Special Court.

The Special Court took cognizance of the case and

secured presence of the accused. It appears, accused was

released on bail. Copy of the charge-sheet and enclosures

were supplied to the accused. The learned Sessions Judge,

on hearing both side and also considering the materials

available on record, framed the charges for the offence

punishable under Section 376 of IPC and Section 6 of the

POCSO Act. The accused pleaded not guilty and came to

be tried.

5. The prosecution to prove its case examined

PWs-1 to 16 and got marked Exs.P1 to P14 and closed its

evidence. Thereafter, the learned Sessions Judge examined

 6 Crl.A.No.821/2018

the accused under Section 313 of Cr.P.C. and his answered

were recorded. Accused did not lead any defence evidence.

The learned Sessions Judge heard the arguments on both

sides and on appreciating the evidence on record,

answered both the charges levelled against the accused in

the ‘negative’ and acquitted the accused of the alleged

offences, vide impugned judgment dated 13.10.2017.

6. We have heard the arguments of the learned

HCGP and the learned Amicus Curiae appearing for

Respondent No.1/accused.

7. The learned HCGP would submit that PW-2 is

victim girl and PW-1 is her mother. PW-2 in her evidence

has stated in detail about the acts committed by the

accused. It is corroborated by PW-1. To prove that victim

was minor at the time of the incident, prosecution has

produced Ex.P7 and examined PW-8, who is custodian of

the said records. In his cross-examination, nothing was

brought out to discard their evidence. The prosecution

examined the doctors, who have stated that PW-2 was

pregnant and examined the said victim. The victim appears

 7 Crl.A.No.821/2018

to have delivered a baby boy and the said child

unfortunately died within a span of two days after its birth.

The said fact is not disputed. However, the accused

contends that he was not responsible for pregnancy of the

victim girl.

The learned HCGP has further submitted that, PWs-15

and 16 are the investigation officers, who have narrated

the investigation made by them. The said evidence is

sufficient to believe the case of the prosecution. The

learned Sessions Judge acquitted the accused mainly on

the ground that the victim was major at the alleged time of

the incident and it was consensual sex. The said findings

are erroneous. The learned Sessions Judge has not

considered Section 94 of the Juvenile Justice Act, 2015 (for

short, hereinafter referred to as the ‘J.J. Act of 2015’).

When the documentary evidence are placed on record, the

Special Court ought to have accepted the same. To prove

the case of the prosecution, substantial evidence has been

placed on record, which was not considered by the Special

Court.
 8 Crl.A.No.821/2018

The learned HCGP would further submit that the

learned Sessions Judge ignored the presumption under

Section 114-B of the Indian Evidence Act. The victim girl

was minor at the time of the incident. Therefore, question

of giving consent does not arise. In view of these reasons,

there is miscarriage of justice. The finding of the Special

Court is perverse and arbitrary. Therefore, prayed for

reversal of the judgment.

8. The learned Amicus Curiae appointed by the

Court on behalf of the accused/respondent no.1 has

vehemently contended that there are no sufficient

materials to belie that victim was minor at the time of the

incident. The prosecution ought to have produced the

certificate of birth issued by the concerned authority and

there is no explanation for non-production of the same.

PW-8 during her cross-examination admits that he

had not brought register while giving the evidence before

the Court. Therefore, material evidence is suppressed and

hence, the learned Sessions Judge rightly held that the

prosecution has utterly failed to prove Ex.P7. On the basis

 9 Crl.A.No.821/2018

of the medical evidence, the Special Court rightly held that

the victim was major at the time of the incident.

9. The learned advocate for Respondent No.1

would further submit that PW-2 did not give proper

evidence before the Magistrate when her statement was

recorded under Section 154 of Cr.P.C. During the evidence

of PW-2, she was tutored and accordingly, she gave

evidence before the Court. PWs-1 and 2 are interested

witnesses. It has come in their evidence that they were

forcing accused to marry PW-2 and when the accused

refused to marry PW-2, they lodged the complaint. In view

of these reasons, evidence of PWs-1 and 2 is not

believable. There is no other evidence to prove the

circumstances against the accused. The other witnesses in

this case are not material witnesses. Therefore, the

prosecution has failed to prove the guilt of the accused.

Hence, the learned Sessions Judge rightly acquitted the

accused by the impugned judgment. There are no grounds

to interfere in the said finding. Hence, prayed to dismiss

the appeal.
 10 Crl.A.No.821/2018

10. The following points emerges for our

determination:

i) Whether the prosecution proves beyond

reasonable doubt that eight months prior to
03.04.2016 at Kyasinakere Village of Honnali Taluk,
accused developed intimacy with the victim girl and
he had repeated sexual intercourse with her against
her wish, knowing fully well that she was minor, due
to which, she conceived and thereby, the accused
had committed an offence under Section 376 of IPC?

ii) Whether the prosecution proves beyond

reasonable doubt that eight months prior to
03.04.2016 at Kyasinakere Village of Honnali Taluk,
accused developed intimacy with the victim girl and
he had aggravated repeated sexual intercourse with
her, against her wish, knowing fully well that she
was minor due to which, she became pregnant and
thereby, the accused had committed aggravated
penetrative sexual assault on the victim girl in
violation of Section 5 of the POCSO Act and thereby,
committed an offence punishable under Section 6 of
the POCSO Act?

iii) Whether the findings of the learned

Sessions Judge is arbitrary, illegal and perverse and
interference by this Court is required?

iv) What order?

 11 Crl.A.No.821/2018

11. Point Nos.1 to 3: As these points are inter-

connected, they are taken up together for discussion.

PW-1/Sarojamma is the mother of the victim. In her

evidence, she has stated that PW-2 is her daughter. She

along with PW-2 used to go to Coolie work in Kyasinakere

Village. Accused was also working in the same place as a

Coolie. About eight months prior to recording of her

evidence, she came to know that her daughter/victim was

pregnant. On enquiry, PW-2 has revealed that accused

developed intimacy with her and assured her of marrying

her and with that false assurance, had sex with her, against

her wish because of which, she conceived. She told accused

about her pregnancy and requested to marry her but

accused refused to marry her and even avoided to contact

her. Thereafter, PW-2 told her about the incident. PW-1

has further stated that she requested elders to persuade

the accused. The elders of the village held Panchayath and

in the Panchayath, accused refused to marry the victim and

told that he was not responsible for pregnancy of the

 12 Crl.A.No.821/2018

victim. Hence, elders of the village advised her to file

complaint to the police. Accordingly, through her daughter,

she gave complaint to the police.

PW-1 has further stated that after filing of the

complaint, victim girl was taken to Government Hospital,

Honnali along with her. She has also stated that at the

time of her evidence, age of the victim was 17 years. In

her cross-examination, her evidence was denied but

nothing was brought out to discard or disbelieve the

evidence of PW-1. PW-1 denied the suggestion of accused

that due to refusal by the accused to marry PW-2/victim,

PW-1 was alleging against the accused that he has

committed rape on PW-2.

PW-1 is not an eye-witness to the incident. Her

evidence is important to consider the age of the victim as

minor at the time of the incident; the victim became

pregnant on enquiry accused refused to marry her. Hence

Panchayat was held at her request and there-in also

accused refused to marry victim. In the cross-examination,

 13 Crl.A.No.821/2018

she elaborated her examination-in-chief and nothing is

brought out to disbelieve her evidence.

12. PW-2 is star witness of this case. She is the

victim of this incident. In her evidence, she has stated that

she studied first standard and even she has not completed

the course. She discontinued her education and was going

along with her mother to do coolie work. Accused was also

coolie and was working in the same place where she was

working, at the time of the incident. At that time, accused

was un-married. Accused developed intimacy with her and

persuaded her, with false assurance of marrying her. Both

of them were going near canal, during lunch break and chit

chatting. It was an abandoned place. On one day with the

false assurance of marrying her, in the afternoon accused

had sexual intercourse with her against her wish and

refusal. Thereafter, two to three occasion accused had sex

with her. She conceived and she informed the said fact to

the accused and requested him to marry her. However,

the accused did not agree to marry her. Hence, she

 14 Crl.A.No.821/2018

informed her parents about the sexual acts committed by

the accused against her wish and also that she conceived.

13. PW-2 in her further evidence has stated that her

parents requested elders of the village to give justice to

PW-2 and elders of the village held a Panchayath and in the

Panchayath, accused refused to marry PW-2 and also told

them that he was not responsible for pregnancy of PW-2.

Thereafter, she lodged a complaint to the police as per

Ex.P1. On her information a lady had written complaint and

she filed it to police. After lodging the complaint, police

came to the spot and drew mahazars and obtained her

signature as per Ex.P2. The police had also taken

photographs at the time of the mahazar.

PW-2 has further stated that she was taken to

Chigateri District Hospital, Davanagere and the

Government Hospital at Honnali for medical examination.

At the time of medical examination, her dresses were

seized by the police. Thereafter, she was taken before the

Magistrate, wherein she has given the statement as per

 15 Crl.A.No.821/2018

Ex.P4. She has further stated that eight months after filing

the complaint, she delivered baby boy and the said baby

died after two days after its birth.

14. In the cross-examination, she has elaborated

the evidence given in the examination-in-chief. She has

also stated that she did not inform her parents about her

pregnancy. She was not tutored by any police to give

evidence before the Court. She denied the suggestions of

the accused that accused did not had sex with her and she

did not conceive due to acts of accused. She denied the

suggestion that she and her parents insisted the accused to

marry her and when the accused refused to marry her,

they lodged a false police complaint.

15. PW-3/H.Parameshwarappa is a witness to the

mahazar of the spot of the incident, i.e., Ex.P2. He has

supported the case of the prosecution. In his cross-

examination, he has stated that CPI has written the

mahazar. Complainant was also present, at the time of

drawing up of mahazar. It was read over to him and he

understood the contents. He denied the suggestions that

 16 Crl.A.No.821/2018

he was giving false evidence. He accepted that he was

familiar with the President of the village Panchayath by

name Smt.Anusuyamma. he denied the suggestion that on

the advise of Smt.Anusuyamma, he was giving false

evidence. He is no material witness; however nothing is

brought out in his cross-examination to disbelieve his

evidence.

16. PW-3/H.Parameshwarappa is not a material

witness to the incident. He witnessed the spot mahazar.

In the cross-examination of PW-2, it is not denied that

place of incident is nearby Canal situated in Kyasinakere

Village. It is also not denied of drawing up of Ex.P2 at the

spot of the incident and it was suggested that Exs.P2 and

P3 were created for the purpose of this case, which was

denied by PWs-2 and 5. By the evidence of PWs-2 and

PW-3 prosecution is able to prove the drawing of Ex.P2 at

the spot and taking of photographs as per Ex.P3.

17. PW-4/Smt.Anasuyamma and PW-7/Jayappa are

elders of the village who held a Panchayath for persuading

accused to marry the victim girl. PW-4 in her evidence has

 17 Crl.A.No.821/2018

stated that prior to filing of the complaint, PWs-1 and 2

approached her and told her that accused has raped victim

girl and refused to marry her. Therefore, requested her to

hold a Panchayath and persuade the accused, to marry the

victim girl and in the Panchayath, when the elders have

enquired with the accused, he told that he was not

responsible for pregnancy of the victim and that he would

not marry her. When the victim girl was enquired in the

Panchayath, she told that the accused was responsible for

her pregnancy. Since the matter was not settled between

the parties, she advised PW-1 to take appropriate action

against the accused, in accordance with law and lodge

Police complaint.

In her cross-examination, she has stated that when

she came to know about the heinous acts committed by the

accused, she advised PWs-1 and 2 to lodge a complaint to

the police. Accused, in her cross-examination, has

suggested that she was belonging to different political party

and accused is belonging to different political party,

therefore, she was giving false evidence against the

 18 Crl.A.No.821/2018

accused and she denied the said suggestion. The

suggestion of the accused that the reasons for falsely

implicating of the accused in the incident is due to political

rivalry was not admitted by her. It is not brought out that

PW-4 is connected with PWs-1 and 2. As a member of the

Panchayath and as elder of the village, she wanted to settle

the dispute between the parties. It is not a case of accused

that PWs-1 and 2 are belonging to one political party and

accused was belonging to another political party. Hence

suggestion of accused is not probable. Hence, it cannot be

believed that due to political rivalry, she was giving false

evidence before the Court, against the accused. Moreover,

PW-4 is not a material witness in this case. It is only

circumstantial evidence to support the case of the

prosecution. Her evidence corroborates evidence of PWs-1

and 2 and the case of the prosecution.

18. PW-7/Jayappa is also member of the

Panchayath. He has also stated that about a year prior to

giving evidence before the Court, a Panchayath was held in

his village and in the presence of the Panchayath, PW-1

 19 Crl.A.No.821/2018

told before the elders of the village that accused raped

PW-2 and she became pregnant. The elders of the village

asked the accused to marry the victim girl, who was

pregnant but the accused did not agree and he refused to

marry her. However, the accused admitted in the

Panchayath that he was responsible for her pregnancy. In

the cross-examination, his evidence was denied. PW-7

admitted that he was in good terms with PWs-1 and 2. He

denied the suggestion that he was not at all participated in

the Panchayath and no such Panchayath was held in the

village. It is pertinent to note that accused, PWs-1 and 2,

PW-7 are the residents of Kyasinakere Village. They were

known to one another. Since it is a small village, the

people might be familiar to each other and have friendly

relationship with each other. Only on the basis that he was

familiar with PWS-1 and 2, PW-7, he cannot be considered

as an interested witness. He is also not a material witness

and his evidence corroborate the case of the prosecution

that prior to filing of the complaint, Panchayath was held to

settle the dispute between the parties.

 20 Crl.A.No.821/2018

19. PW-8/Shailajakumari is the Head Mistress of

Government Primary School at Kyasinakere Village. In her

evidence, she has stated that as requested by the Police

she issued certificate containing date of birth of

Kumari.Geetha, Daughter of Manjappa on the basis of

information found in the admission register of students

maintained in the school; And Sl.No.39/2007-2008

pertaining to the victim and as per the entry in the said

register, her date of birth is 01.06.2001. On the basis of

the said register, she issued date of birth Certificate as per

Ex.P7. She has also issued Certificate of accused, by

name, Manjappa, Son of A.K.Rudrappa as per Ex.P8. In

her cross-examination, she has stated that while admitting

any student in the School, the student has to produce birth

certificate and on that basis, admission register will be

mentioned. On that basis, date of birth will be in the

admission register. She has issued birth certificate of both

the victim and the accused on the basis of the school

register. She has not brought the said school register on

the date of the evidence, however, she has brought a copy

 21 Crl.A.No.821/2018

of the said register. She denied the suggestion of the

accused that at the instance of the police, she has given

false Exs.P7 and P8.

20. Ex.P7 is the Birth Certificate of the victim girl,

wherein name of her parents is mentioned. Serial Number

of admission, her caste and year of study are all mentioned

in the said register. To prove the said document,

prosecution examined PW-8. In her cross-examination,

nothing is brought out to disbelieve or discard her evidence

as well as Ex.P7. In the cross-examination, she has stated

that she brought copy of the register.

However, the learned Public Prosecutor who lead the

evidence of the witness, did not secure the said document

and mark it during the evidence. It is not brought out in

her examination that she is an interested witness and the

Certificate given by her was concocted. She repeatedly in

the examination-in-chief and cross-examination has stated

that Ex.P7 was given on the basis of materials available in

the register. It is also pertinent to note that she had issued

 22 Crl.A.No.821/2018

Ex.P8, i.e., particulars of the admission of the accused as

per the register. The said facts are not disputed or denied

by the accused. During the course of the admission of the

student in the School, at an undisputed time the said

particulars were mentioned in the register. In her cross-

examination, she has stated that at the time of admission

of a student, the student has to bring birth certificate and

that will be mentioned in the register. It supports the case

of the prosecution that entries in the register were made on

the basis of the certificate produced by the student. There

are no reasons or doubt the correctness of Ex.P7.

21. The accused did not disclose the date of birth of

victim according to his information. Even he has not

produced any document to rebut the evidence of PW-8. As

already stated above, in the regular course of business of

School, the entries were made by the concerned staff in the

School and based on the particulars mentioned in the

register, Ex.P7 was given by PW-8. Therefore, it has got

presumptive value and the said presumption is not rebutted

by the accused. Therefore, the prosecution was able to

 23 Crl.A.No.821/2018

prove that the date of birth of victim girl is 01.06.2001. It

proves that as on the date of the incident, the victim girl

was aged 14 years and eight months and she was a ‘minor

and child’ as defined under the POCSO Act.

22. PW-9/Suresh is not a material witness to the

incident. Moreover, it is a record of right, i.e., a public

document, which has got presumptive value.

23. PW-10/Dr.Arunakumari.B., is the medical officer

serving at C.G.Hospital, Davanagere. According to her

evidence, on 15.07.2016, she examined victim girl and

found that the victim girl was pregnant of sixteen weeks

and as per the report of the Dentist, her age was between

16 to 17 years. In her cross-examination, this fact is not

disputed.

24. PW-11/Dr.Thippeswamy is also a Medical Officer

working in C.G.Hospital, Davanagere. According to his

evidence, he examined victim girl and had seen the

development of her teeth. Since the victim girl was

 24 Crl.A.No.821/2018

pregnant, he did not take any X-ray and on the basis of her

teeth, he assessed her age between 16 to 17 years.

In his cross-examination, he has stated that assessing

age based on teeth could vary by plus or minus two years

from the assessment. According to the evidence of PWs-10

and 11, age of the victim might be 16 to 17 years and she

was pregnant. The said age was assessed on the basis of

development of her teeth.

The learned advocate for respondent accused submit

that from the evidence of both it could be assessed that

victim is aged 18 to 19 years and she was major. Hence,

provision of POCSO Act is not applicable.

25. In this case, the prosecution has produced

Ex.P7, which indicates that age of the victim was fourteen

(14) years and eight (8) months as on the date of filing of

the complaint and at the time of the incident, it might be

less than that because the complaint was given after eight

(8) months from the date of the incident. In this case

prosecution has produced Ex.P7 to prove the same

examined PW-8. By the said evidence it is proved that the

 25 Crl.A.No.821/2018

date of death of the victim was 01.06.2001 and she was

aged 14 years and 8months. Since documentary evidence

is available in this case, that is proved by the prosecution,

that shall be considered to assess the age of the victim.

26. PW-13/Smt.Nazimabhanu, a woman police

constable who had taken victim to Government Hospital,

Honnali and thereafter has taken her to C.G. Hospital at

Davanagere and produced before the Medical Officer. After

medical examination, she brought her back to the police

station. She has deposed said facts before Court and she is

not a material witness to the incident.

27. PW-12/Smt.Reshma is scribe of complaint that

is, Ex.P1. PW- 12 in her evidence has stated that she has

been serving in child helpline and on 03.04.2016, a girl

aged about 15 years approached to the said child helpline

along with her parents and she informed about the alleged

sexual act on her by the accused. She has given the details

and according to said details, she wrote complaint as per

 26 Crl.A.No.821/2018

Ex.P1 and obtained her signature. Thereafter, she has

taken the victim to the concerned police station and

presented the said complaint. On the basis of said

complaint, police registered a case in Honnali police station.

In her cross-examination, she has elaborated her evidence.

PW-12 denied suggestions of the learned advocate for the

accused. PW-1 in her evidence has stated that she gave

information to a lady to write the complaint since she was

illiterate or was not knowing to read and write and after the

said lady wrote the Ex.P1, she presented it to the police

station and the police, on that basis, registered a criminal

case against the accused. Evidence of PWs-1, 12 and PW-

15 corroborate the evidence of each other and PW-1 has

stated about writing of the Ex.P1 through assistance of

PW-12 and PW-12 says that on the information furnished

by victim girl, she drafted the complaint. Nothing is brought

out in the cross-examination of PWs-1, 12 and 15 collected

by PW-14, to discard their evidence.

PW-14 in his evidence has stated that on

20.04.2016, the concerned PSI of Honnali police station,

 27 Crl.A.No.821/2018

authorized him to search and arrest the accused and he got

credible information from known source, that accused was

in Ranebennuru Town Bus-stand. Thereafter, PW-14 went

to Ranebennuru Town Bus-stand and he arrested the

accused in the said Bus-stand. Thereafter, the accused was

produced along with report before the PSI. As per Ex.P10,

he identified the accused in the Court. PW-15 is PSI. He

has instructed PW-14 for arrest of accused and produced

him before the Court.

28. PW-15/Shri.Ashwinkumar in his evidence has

corroborated the said evidence of authorizing PW-14 to

arrest the accused and produce before him and

accordingly, PW-14 arrested the accused and produced

before him.

Thereafter, he arrested him in accordance with the

Rules and after medical examination of the accused, he was

produced before the Special Court. PW-15, has partly

investigated the case. On 03.04.2016 at 11.45 a.m., he

received written complaint from PW-2. It was written by

PW-12. Thereafter, he registered FIR in Crime No.119 of

 28 Crl.A.No.821/2018

2016 and submitted the FIR to the Court. He has further

stated that PW-14 has arrested the accused and produced

before him on 21.04.2016 at 12 noon. In the cross-

examination of PWs-14 and 15, it was suggested that police

have not arrested the accused; the accused was illegally

arrested by the police and detained in the custody and he

was not arrested in Ranebennur.

In the cross- examination, PWs-14 and 15 have

denied the suggestions of the learned advocate for

accused. It is pertinent to note that on 21.04.2016,

accused was produced before the Court in S.C.No.95 of

2016 and he was not granted the bail, and was remanded

to jail. Thereby, prosecution has proved that accused was

arrested and produced before the Special Court as stated

by PWs-14 and 15.

As per the evidence of PW-16/Ramesh.J., who is the

Investigating Officer, he has narrated conducting of the

investigation, collecting of the documents and submitting of

the final report to the Court. His evidence is corroborated

with the evidence of other material witnesses. In his cross-

 29 Crl.A.No.821/2018

examination, he has elaborated the facts which are already

stated in the examination-in-chief.

The learned advocate for respondent No.1 has

vehemently contended that incident was said to be taken

place about eight (8) months prior to 03.04.2016, i.e., date

of filing of the complaint. Accused or PW-2 did not file a

complaint till expiry of the eight (8) months and thereafter

victim girl as well as her parents filed complaint and there

is no explanation for the delay in filing complaint.

In the entire cross-examination of PWs-1 and 2, it is

not brought out by the accused regarding marriage of PW-2

and the accused. According to her evidence, accused was

belonging to same community and both of them were well

conversant with each other. She has stated that the

accused persuaded her and had sexual intercourse with her

frequently. In her cross-examination, nothing is brought

out to show that she is a tutored witness.

29. The victim girl was aged about 14 years at the

time of alleged incident. She is an illiterate girl. She is a

poor rustic villager and was doing coolie work of peeling

 30 Crl.A.No.821/2018

areca-nut. Accused who had intimacy with her, had cheated

her and had sex with her and after she conceived he

refused to marry her. PWs-1 and 2 persuaded accused to

marry her and not to spoil her life. Accused did not agree

for the same. Thereafter, both PWs-1 and 2 have

approached the elders of the village and initially they

assured PW-1 that they would try to settle the dispute and

they held a Panchayath and in the Panchayath,

accused/respondent No.1 refused to marry the victim girl.

In view of the said reasons, helplessly, as advised by elders

of the panchayath PW-2 filed police complaint, so as to get

justice. All the while PWs-1 and 2 believed that accused

fulfil his promise and would marry PW-2. Even they tried to

advise through elders of the village. When accused did not

heed to any ones request, PW-2 lodged complaint. Hence

said delay would not affect the merits of the prosecution

case.

30. The learned HCGP vehemently contends that the

learned Sessions Judge has totally ignored Ex.P7 and tried

to assess age of the victim girl on the basis of evidence of

 31 Crl.A.No.821/2018

PWs-10 and 11. Both the doctors have stated that the

approximate age of victim girl was between 16 and 17

years. The learned Sessions Judge completely ignored

evidence of PW-8 and Ex.P7. The trial judge in the

impugned judgment held that since the birth certificate

given by the competent authority has not been produced,

the school certificate has not of much evidentiary value, on

this premise, the learned Sessions Judge completely

ignored Ex.P7 and evidence of PW-8 which is totally

incorrect.

The learned Sessions Judge did not consider Section

94 of J.J. Act 2015. The learned Sessions Judge ought to

have accepted Ex.P7 to believe that date of birth of victim

girl as 01.06.2001 and on the basis of evidence of PWs-11

and 12, the learned Sessions Judge held that victim girl

was major as on the date of incident and it was consensual

sex.

31. The learned advocate for Respondent No.1/

accused has supported the impugned judgment and

 32 Crl.A.No.821/2018

reasons assigned by the learned Sessions Judge in holding

that victim girl was major at the time of alleged incident.

We have discussed the evidence of PW-8 in the above

paragraphs along with Ex.P7. PW-8 in her evidence has

stated that on the basis of contents of register maintained

in the school, she issued Ex.P7 containing date of birth of

the victim.

According to Ex.P7, date of birth of victim girl is

01.06.2001. Accused has not obtained or produced any

documents to rebut evidence of PW-8 and Ex.P7.

PW-1 in her evidence stated that victim girl was

seventeen (17) years old as on date of her evidence and in

her cross-examination, accused has not at all disputed

about her age. Her evidence was recorded on 17.01.2017.

In the evidence of PW-2, the accused has not brought out

that she was major at the time of alleged incident. In the

cross-examination of PW-8, accused has not denied that

date of birth of victim as 01.06.2001 or he has suggested

any other date, as date of birth of victim according to his

knowledge.
 33 Crl.A.No.821/2018

On going through the entire evidence lead by the

prosecution as well as cross-examination of the said

witnesses, relevant to prove the age of the victim, even no

suggestions were made that victim was major at the time

of alleged incident. When the said fact was not at all

disputed by the accused, there was no need for the learned

Sessions Judge to discard evidence given by the witnesses

as well as Ex.P7 and hold that victim was a major at the

time of incident. The said finding of the learned Sessions

Judge is erroneous and perverse.

To attract the provisions of the POCSO Act, it is

necessary for the prosecution, to prove that the victim girl

was minor i.e., below the age of eighteen (18) years as on

the date of incident. The age of victim is also necessary to

consider whether alleged sexual act was a consensual sex

or it was rape. If she is a minor, then the question of giving

consent to commit the sexual offence does not arise. And if

she was a major as on the date of alleged offences, then

only the next question arises as to whether the victim had

consented for the said illegal acts committed by accused,

 34 Crl.A.No.821/2018

against the said victim. Therefore, age of the victim girl is

most important to be determined in this case.

32. Section 2(d) of Protection of Children from

Sexual Offences Act, 2012 reads as under:

“A child means any person below the age

of 18 years”.

Under the provisions of POCSO Act, it is not stated

how to determine age of the victim. Therefore, the age of

the victim has to be determined on the basis of judicial

precedents, rendered by the Hon’ble Apex Court as well as

by this Court. In the case of The State through Grameen

Police Station, Gulbarga Vs. Sharanu @ Sharanappa @

Sharanabassappa1 rendered by the Co-ordinate Bench of

this Court (wherein the Senior member of this Bench has

authored the judgment) wherein relying on the earlier

judgment of Hon’ble Apex Court in the case of Jarnail

Singh Vs. State of Haryana2 and Mahadeo, Son of Kerba

1
2022 LiveLaw (Kar) 442
2
(2013) 7 SCC 263
 35 Crl.A.No.821/2018

Maske Vs. State of Maharashtra and another3 held that to

determine the age of minor victim Rule 12(3) of Juvenile

Justice (Care and Protection of Children) Rules, 2007

(hereinafter referred to as ‘the Juvenile Justice Rules,

2007) would be applicable.

33. The learned Additional State Public Prosecutor

has relied on the law laid down in the case of Rishipal

Singh Solanki Vs. State of Uttar Pradesh and others4,

wherein the Hon’ble Apex Court held that the documents

mentioned in Rule 12(3)(a)(i)(ii)(iii) of the Juvenile Justice

Rules, 2007 framed under the Juvenile Justice Act 2000 or

the documents mentioned in Section 94(2) of Juvenile

Justice Act 2015 shall be sufficient to prima-facie accept

age of minor. On the basis of such documents, a

presumption of juvenility may be raised, though the above

said document is however not conclusive proof of the age

of juvenility and the same may be rebutted by contra

evidence let-in by the opposite side.

Section 94(2) of the J.J. Act of 2015 reads as under:

3
(2013) 14 SCC 637
4
(2022) 8 SCC 602
 36 Crl.A.No.821/2018

Section 94(2): In case, the Committee or the

Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or
not, the Committee or the Board, as the case may
be, shall undertake the process of age
determination, by seeking evidence by obtaining—

(i) the date of birth certificate from

the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a

corporation or a municipal authority or a
panchayath;

(iii) and only in the absence

of (i) and (ii) above, age shall be
determined by an ossification test or any
other latest medical age determination test
conducted on the orders of the Committee
or the Board:

Provided such age determination test

conducted on the order of the Committee or the
Board shall be completed within fifteen days from
the date of such order.

34. In this case, according to the case of

prosecution as well as evidence of PWs-1 and 2, PW-2 was

admitted to primary school to study first standard, however

 37 Crl.A.No.821/2018

she did not complete it. And while admitting her to the

school, date of birth given by PW-1 and her husband were

entered in the register maintained by the school. PW-8

issued certificate, i.e., Ex.P7 containing date of birth of the

victim, based on the information mentioned in the register.

To prove the said document, prosecution examined PW-8

and in her cross-examination, nothing is brought out to

discard or disbelieve evidence of PW-8 which is already

discussed above. Thereby, prosecution has proved that

date of birth of victim girl is 01.06.2001 as mentioned in

Ex.P7; And that victim was minor as on the date of the

incident.

35. PW-2/victim girl, during her evidence has stated

that she and the accused were working as Coolies in the

same place and both of them are belonging to same

community/caste. The accused developed close intimacy

with her. He was repeatedly assuring her that he would

marry her and is in deep love with her and with a false

pretext that he was serious in marrying her used to take

her near canal for chit-chatting. On one day he had sex

 38 Crl.A.No.821/2018

with her. He used to take her near the Canal and had

sexual intercourse with her three to four times, against her

wish. She conceived and she told said fact to accused and

requested him to marry her. The accused refused to marry

her and she informed said fact to her parents. The said

evidence of PW-2 regarding pregnancy of PW-1 and request

made to accused is corroborated by PW-1. She has also

stated that she requested the accused to marry PW-2 and

accused refused to marry her. In view of these reasons,

she requested elders of the village to advise accused to

marry PW-2 since he was responsible for her pregnancy

and he had misused her innocence. PWs-4 and 7

corroborated evidence of PWs-1 and 2 about holding of

Panchayat to persuade accused to marry PW-1 and accused

refused to marry PW-2. PW-7 has stated that accused

told before the Panchayath that he was responsible for

pregnancy of PW-2. This fact is not seriously disputed by

the accused in the cross-examination of PW-7.

36. PW-6 and PW-10 are medical officers who have

clinically examined victim girl and stated that victim was

 39 Crl.A.No.821/2018

pregnant. Pregnancy of the victim is not in dispute.

According to evidence of PW-1 that accused was

responsible for her pregnancy. PW-5 who has clinically

examined accused, gave opinion that he was potential and

capable of doing sexual acts. Accordingly, he gave

certificate as per Ex.P5. In Ex.P5 also, PW-5 has mentioned

about the physical development of sexual organs of the

accused. It appears that due to death of the baby, born to

victim girl, within 2 days from the date of delivery, the

investigating officer could not collect the blood sample of

son of the victim for DNA test. All these evidence prove the

case of the prosecution that the accused was responsible

for the pregnancy of the victim girl.

The victim was minor at the time of incident. Hence,

the question of her consent to the accused for having

sexual intercourse with her, does not arise. PW-2 has

repeatedly stated that accused had sex with her 3 to 4

times.

PWs-15 and 16 have stated in detail about the

investigation done by them and also through them, the

 40 Crl.A.No.821/2018

relevant documents were got marked. The said evidence

corroborates the case made out by the prosecution. In the

cross-examination of PWs-15 and 16, nothing is brought

out to show that there were any lapse on the part of the

investigating agency in investigating the case. Much is

argued regarding non-production of birth certificate issued

by the competent authority, however, as discussed in the

above paragraphs and in view of Section 94(2) of J.J. Act

2015, it is sufficient to produce the certificate given by the

school and by examining the competent person who has

issued the such certificate.

It may be true that PW-2 did not co-operate with the

learned Magistrate while recording her statement under

Section 164 of Cr.P.C. However, looking to the status of the

victim girl, her educational background, social status and

economical status and blame of parents, she might have

feared while recording of the statement under Section 164

of Cr.P.C., by the learned Magistrate. On that basis, it

cannot be held that the evidence given by PW-2 before the

Court was not credible. Her evidence is reliable.

 41 Crl.A.No.821/2018

37. We know the limitation of the Appellate Court

while intervening in the findings of the Special Court or

reversing acquittal of judgment passed by the Special

Court. We are also aware that under the provisions of Code

of Criminal Procedure, the Appellate Court after

appreciation of evidence of prosecution witnesses, if two

views are possible and view of trial Court is also possible

then same has to be upheld. On the contrary on the

reconsideration the evidence if it is found that the trial

Court has not properly appreciated the evidence of the

witnesses or considered the case of the prosecution

properly and if judgment passed by the Trial Court is

perverse, arbitrary, illegal and lead to miscarriage of

justice, then the Appellate Court has every jurisdiction to

interfere in the said findings of the Trial Court and reverse

the acquittal judgment passed by the Trial Court.

38. In the case of Guru Dutt Pathak Vs. State of

Uttar Pradesh5, the Hon’ble Apex Court has held that each

and every ground on which trial court acquitted the

5
LL 2021 SC 245
 42 Crl.A.No.821/2018

accused was elaborately dealt with by the High Court. On

re-appreciation of entire evidence on record, the High Court

specifically concluded that findings recorded by the Trial

Court were perverse. Therefore, the High Court was right in

interfering with the judgment and order of acquittal passed

by the Trial Court and convicting the accused under Section

302 read with Section 34 of the IPC. Hence, no interference

is required.

39. In the case of Siju Kurian Vs. State of

Karnataka6, it is held that (we quote):

13. It need not be restated that it would be

open for the High Court to re-apprise the evidence
and conclusions drawn by the Trial Court and in
the case of the judgment of the trial court being
perverse that is contrary to the evidence on
record, then in such circumstances the High Court
would be justified in interfering with the findings
of the Trial Court and/or reversing the finding of
the Trial Court. In Gamini Bala Koteswara Rao v.
State of Andhra Pradesh, it has been held by this
Court as under:

6
2023 SCC OnLine SC 429
 43 Crl.A.No.821/2018

“14. We have considered the arguments

advanced and heard the matter at great
length. It is true, as contended by Mr.Rao,
that interference in an appeal against an
acquittal recorded by the trial court should be
rare and in exceptional circumstances. It is,
however, well settled by now that it is open
to the High Court to reappraise the evidence
and conclusions drawn by the trial court but
only in a case when the judgment of the trial
court is stated to be perverse. The word
“perverse” in terms as understood in law has
been defined to mean “against the weight of
evidence”. We have to see accordingly as to
whether the judgment of the trial court which
has been found perverse by the High Court
was in fact so.

The Appellate court may reverse the

order of acquittal in the exercise of its powers
and there is no indication in the Code of any
limitation or restriction having placed on the
High Court in exercise of its power as an
Appellate court. No distinction can be drawn
as regards the power of the High Court in
dealing with an appeal, between an appeal
from an order of acquittal and an appeal from
a conviction. The Code of Criminal Procedure
does not place any fetter on exercise of the
 44 Crl.A.No.821/2018

power to review at large the evidence upon

which the order of acquittal was founded, and
to reach the conclusion that upon that
evidence the order of acquittal should be
reversed.

In the case of Sheo Swarup v. King

Emperor, it has been held by the Privy
Council as under:

But in exercising the power conferred by

the Code and before reaching its conclusions
upon fact, the High Court should and will
always give proper weight and consideration
to such matters as:

1) The views/opinion of the trial judge as

to the credibility of the witnesses;

2) The presumption of innocence in favour

of the accused;

3) The right of the accused to the benefit

of any doubt; and

4) The slowness of an appellate court in

disturbing a finding of fact arrived at by
a judge who had the advantage of
seeing the witnesses.
 45 Crl.A.No.821/2018

40. In the case of Chandrappa Vs. State of

Karnataka7 reiterated the legal position as under :

‘42. … (1) An appellate court has full power

to review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.

(2) The Code of Criminal Procedure, 1973

puts no limitation, restriction or condition on
exercise of such power and an appellate court on
the evidence before it may reach its own
conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial

and compelling reasons”, “good and sufficient
grounds”, “very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.

7
(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] ,
 46 Crl.A.No.821/2018

(4) An appellate court, however, must bear in

mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible

on the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the trial court.’

41. The principle of law laid down in the above said

judgment is applicable to the facts of the present case.

Therefore, reversing of the findings of the impugned

judgment is very much necessary.

The learned Sessions Judge discussed in detail

regarding proof of age of the victim girl, and considering

the evidence, the learned Sessions Judge held that victim

was major at the time of alleged incident and it was a

consensual sex. The learned Sessions Judge has not at all

 47 Crl.A.No.821/2018

considered the law laid down by the Hon’ble Apex Court as

well as this Court for determining the age of the victim girl.

The learned Sessions Judge has also not considered the

provisions of J.J. Act and Rules, therefore totally ignored

Ex.P7 and evidence given by PW-8. The learned Sessions

Judge by ignoring the material evidence available on

record, tried to assess the age of the victim on the basis of

inaccurate medical evidence. It is admitted by PW-11 that

since the victim girl was pregnant at the time of her clinical

test, he could not take her X-ray. And by seeing the X-ray

age could be assessed accurately. And, considering the said

evidence, it was held by the learned Sessions Judge that

victim was major at the time of incident. In view of these

reasons, there is serious miscarriage of the justice. The

learned Sessions Judge appears to have accepted the case

of prosecution that accused had sexual intercourse with the

victim girl and he was responsible for her pregnancy.

However, the learned Sessions Judge held that it was

consensual sex and not considered evidence of PW-2 that

 48 Crl.A.No.821/2018

she had refused for the sex and it was against her wish.

Hence the said finding is also incorrect.

42. In this case, it is already proved by the

prosecution that victim girl was minor at the time of

incident. For the sake of discussion, even if we accept that

she was a major, then, merely because she did not lodge a

complaint immediately after the incident, it cannot be said

that she had consented for sexual intercourse. During the

evidence, PW-2 has stated that the accused had sex with

her without her consent and even after she refused to have

such acts with her, the accused had sex with her forcefully

3 to 4 times. The said evidence of PW-2 she clearly says

that it was not with her consent. Under such

circumstances, finding of Trial Court that it was consensual

sex is perverse. It cannot be considered that with the

consent, the accused had sex with the victim girl.

Moreover, it is not the contention of the accused that it was

consensual sex. On the contrary, he has totally denied the

case made out by the prosecution. Therefore, question of

the victim had consented for sexual acts would not arise.
 49 Crl.A.No.821/2018

43. Section 114-A of the Indian Evidence Act deals

with consent and it reads as under:

“114A. Presumption as to absence of

consent in certain prosecution for rape. -- In a
prosecution for rape under clause (a), clause (b),
clause (c), clause (d), clause (e), clause (f), clause
(g), clause (h), clause (i), clause (j), clause (k),
clause (l), clause (m) or clause (n) of sub-section (2)
of section 376 of the Indian Penal Code (45 of 1860),
where sexual intercourse by the accused is proved
and the question is whether it was without the
consent of the woman alleged to have been raped
and such woman states in her evidence before the
court that she did not consent, the court shall
presume that she did not consent.”

Explanation. In this section, "sexual

intercourse" shall mean any of the acts mentioned in
clauses (a) to (d) of section 375 of the Indian Penal
Code (45 of 1860).”

That in a prosecution for rape, Clause (a), clause (b),

clause (c), clause (d), clause (e), clause (f), clause (g),

clause (h), clause (i), clause (j), clause (k), clause (l),

clause (m) or clause (n) of sub-section (2) of Section 376

of Indian Penal Code where sexual intercourse by an

 50 Crl.A.No.821/2018

accused is proved and the question is whether it was

without consent or the woman alleged to have been raped

and such a woman states in her evidence before the Court

that she did not give consent, the Court shall presume that

she did not give consent.

Therefore, in this case, PW-2 in her evidence has

stated that she did not give consent for sexual acts. Under

such circumstances, the question that she had given

consent does not arise. Moreover, as already stated above,

in the present case, PW-2 is minor. Therefore, question of

consent do not arise.

44. In this case, victim girl is an illiterate, aged about

around 15 years at the time of incident, residing at village

and doing coolie work may be due to poverty. Her parents are

illiterate. It appears that there is no much exposure and such

a victim girl was persuaded and forced by the accused. After

sexually exploiting her he refused to marry her, though he

was said to have promised to marry her. He washed off his

hands and allowed the victim to suffer for her innocence.

Under these circumstances, on too technical reasons, the

 51 Crl.A.No.821/2018

Special Court ought not to have acquitted the accused.

Therefore, the findings of the learned Sessions Judge is

perverse and contrary to the law. In view of these reasons, it

is necessary to interfere in the findings of the learned

Sessions Judge.

The burden shifts on the accused to prove his innocence

as provided under Section 29 of POCSO Act which reads as

under:

“Section 29. Presumption as to certain offences

Where a person is prosecuted for committing or

abetting or attempting to commit any offence under
sections 3, 5, 7 and section 9 of this Act, the Special Court
shall presume, that such person has committed or abetted
or attempted to commit the offence, as the case may be
unless the contrary is proved.”

Accused did not lead any defence evidence and his

defence are not probable. Hence accused is not able to rebut

the case of prosecution.

45. The prosecution proved beyond all reasonable

doubt that accused has committed an offence punishable

under Section 376(2)(n) of IPC and Section 6 of POCSO Act.

 52 Crl.A.No.821/2018

For the aforesaid discussion, we answer Point Nos.1 to 3 in

the ‘affirmative’.

46. Section 5(l) of POCSO Act and Section 376(2)(n)

of IPC are of same ingredients. In case of Section 5(l) of

POCSO Act, the main ingredient is that victim girl should be a

minor, below the age of 18 years. In this case, the victim girl

is aged around 15 years at the time of incident. Section 42 of

POCSO Act reads as under:

“42. Alternate punishment.—Where an act or

omission constitutes an offence punishable under
this Act and also under sections 166A, 354A, 354B,
354C, 354D, 370, 370A, 375, 376, 2[376A,
376AB,376B, 376C, 376D, 376DA, 376DB], 3[376E,
section 509 of the Indian Penal Code or section 67B
of the Information Technology Act, 2000 (21 of
2000)], then, notwithstanding anything contained in
any law for the time being in force, the offender
found guilty of such offence shall be liable to
punishment only under this Act or under the Indian
Penal Code as provides for punishment which is
greater in degree.”

It deals with alternative punishment. According to the

said Section, where an act or omission constitute an offence

punishable under this Act and also under any other law for

the time being in force, then, notwithstanding anything

contained in any other law for the time being in force, the
 53 Crl.A.No.821/2018

offender found guilty of such offence shall be liable to

punishment only under such law or this Act as provides for

punishment which is greater in degree.

47. Section 5(l) of POCSO Act is punishable under

Section 6 of POCSO Act. The punishment prescribed under

Section 6 of the POCSO Act is “with rigorous imprisonment for

a term which shall not be less than ten (10) years but which

may extend to imprisonment for life and shall also be liable to

fine” And punishment prescribed for the offence punishable

under Section 376(2)(n) of IPC is that such an “accused shall

be punished with rigorous imprisonment for a term which

shall not be less than 10 years but which may extend to

imprisonment for life, which shall mean imprisonment for the

remainder of that person's natural life and shall also be liable

to fine.” More or less, punishment prescribed for both

offences are similar. However, in this case, victim girl is a

minor and special benefits are given to the prosecution under

Section 29 of the POCSO Act, regarding burden of proof of the

case. Considering these facts, it is deemed appropriate that

the accused shall be convicted under the provisions of POCSO

Act.
 54 Crl.A.No.821/2018

48. For the aforesaid discussion, we pass the

following:

ORDER

i) The Appeal is allowed.

ii) The impugned judgment passed by the

learned II Additional District and Sessions Judge

and Special Judge at Davangere in S.C.No.95 of

2016 dated 13.10.2017 acquitting the accused of

the offence punishable under Section 376 of IPC

and Section 6 of the POCSO Act is set aside.

iii) The accused is convicted of the offence

punishable under Section 376 of IPC and Section 6

of the POCSO Act.

To hear on sentence.

Sd/-
JUDGE

Sd/-
JUDGE

DH
 55 Crl.A.No.821/2018

DR.HBPSJ & UMBAJ: Crl.A.No.821/2018

22.02.2024

HEARING ON SENTENCE

Heard the learned HCGP for the Appellant/State and

the learned Amicus Curiae for Respondent No.1/accused on

sentence.

2. The learned Amicus Curiae submits that there

are no criminal antecedents against the accused. At the

time of incident, he was 23 years old and at present, he

may be hardly 30 years old person. He belongs to a very

poor family. He has social and family responsibilities.

Considering these facts, leniency may be taken while

imposing the sentence.

3. The learned HCGP vehemently contends that

accused had victimized innocent minor girl and had sex

with her against her wish. When she became pregnant, the

accused refused to marry her and spoiled her future life.

The said social stigma will continue till her lifetime.

Therefore, the accused does not deserve any leniency and

the maximum permissible sentence be imposed against

accused.
 56 Crl.A.No.821/2018

4. The accused had committed heinous crime

against a minor victim. Looking to the facts and

circumstances, we are not inclined to extend the benefit of

Probation of Offenders Act to the accused.

5. While imposing the sentence, the Court has to

consider the hardship of the accused if maximum

permissible sentence is imposed on him. Similarly, it should

not be inadequate/disproportionate and shall not be

nominal. It is not in dispute that there are no criminal

antecedents against the accused. It is also on record that

the accused was aged about 23 years at the time of

incident and presently he might be around 30 years.

6. Considering his social and family responsibilities,

similarly, his poverty, lenient view needs to be taken while

imposing the sentence.

7. As already stated above, the ingredients and

punishment prescribed for the offence punishable under

Section 376 of IPC and Section 6 of POCSO Act are more or

less Similar. And in this case, the victim is minor.

 57 Crl.A.No.821/2018

Therefore, we deem it appropriate to sentence the accused

under Section 6 of POCSO Act. Accordingly, we pass

following:

ORDER

i) The accused, namely, Manjappa, Son

of Rudrappa, Resident of Kyasinakere Village,

Honnali Taluk, Davanagere is sentenced to

undergo rigorous imprisonment for a period of

ten (10) years and shall pay fine of `25,000

(Rupees Twenty Five Thousand only) and in

default of payment of fine, he shall further

undergo imprisonment for a period of one (1)

year for the offence punishable under Section 6

of POCSO Act.

ii) The accused is entitled for set-off as

provided under Section 428 of Cr.P.C. of the

period when he was in judicial custody during

investigation and trial.

iii) Out of the fine amount, `20,000

(Rupees Twenty Thousand only) is ordered to be

 58 Crl.A.No.821/2018

paid to the victim PW-2 as compensation under

Section 357 of Cr.P.C.

iv) The Member Secretary of the

concerned District Legal Services Committee (for

short, DLSC) be directed to consider the case of

victim and award suitable compensation under

Victim Compensation Scheme.

v) Three months time is granted to the

DLSC to consider the same and award the

compensation to the victim as provided under

Section 357(A) of Cr.P.C.

vi) The Registry is directed to send copy of

this judgment forthwith to the member

Secretary of the concerned DLSC.

vii) The order of the Special Court

regarding disposal of the property is not

disturbed.

viii) Copy of this judgment shall be

furnished to the accused free of cost.

 59 Crl.A.No.821/2018

ix) The Registry is directed to send back

the Trial Court Records to the Special Court,

along with copy of judgment.

x) Accused has been given forty five

(45) days time to surrender before the

concerned Court to undergo the sentence.

xi) While acknowledging the services

rendered by the learned Amicus Curiae,

Shri.V.S.Vinayaka, Advocate, the Registry is

directed to pay a sum of `6,000 (Rupees Six

Thousand only) as honorarium to the learned

Amicus Curiae.

Sd/-
JUDGE

Sd/-
JUDGE

DH