Partly allowed

The State by v. Basavaraju

Karnataka HC19 Jan 2024CRL.A/504/2017

Case brief

AI extract

What is this about?

State appeal against acquittal for kidnapping and sexual assault of a minor girl. The High Court held the victim's age proved, disbelieved the kidnapping-with-consent defence, convicted the accused under Section 6 POCSO Act and altered the charge to Section 363 IPC, but confirmed acquittal under Sections 344, 506B and 201 IPC.

What did the court decide?

Acquittal set aside; accused convicted under S.6 POCSO Act (10 years RI + Rs.40,000 fine) and S.363 IPC (3 years RI + Rs.5,000 fine), concurrent; compensation to victim under Ss.357/357A Cr.P.C.; acqu

The State by Vs Basavaraju — Child Sexual Offences (POCSO) | Karnataka HC (2024)

¶1

¶2

CRL.A No. 504 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF JANUARY, 2024 PRESENT

¶4

THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY AND THE HON'BLE MR JUSTICE UMESH M ADIGA

¶5

CRIMINAL APPEAL No.504 OF 2017 (A)

¶6

BETWEEN:

¶7

The State by Kalambella Police, Represented by State Public Prosecutor, High Court Building, Bengaluru-01. .. Appellant

¶8

(By Smt. K.P. Yashoda, Advocate ) AND: Basavaraju, Son of Lakshmaiah, 30 years, R/o. Kadavigere, Kallambella Hobli, Sira Taluk, Tumkuru.572137. .. Respondent

¶9

(By Sri. Vikyath B., Advocate)

¶10

This Criminal Appeal is filed under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973, praying to grant leave to appeal and to set aside the judgment and order of acquittal dated 20.09.2016 passed in Special Case No.167/2015 on the file of the III Addl. Sessions Judge, Tumkur and Special Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989 & Special Court for Trial of Cases under POCSO Act, 2012 and to convict and sentence the accused for the offences punishable under Sections 366-A, 344 and 506(B) of IPC and Section 6 of POCSO Act, and Section 201 of IPC, by allowing the appeal, in the interest of justice.

¶11

This Criminal Appeal having been heard through Physical Hearing/Video Conferencing Hearing and reserved for judgment on 06-12-2023 , coming on for pronouncement this day, Dr.H.B.Prabhakara Sastry J . delivered the following:

¶12

J U D G M E N T

¶13

The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), challenging the judgment of acquittal dated 20-09-2016, passed by the learned III Additional Sessions Judge at

¶14

¶15

CRL.A No. 504 of 2017

¶16

Tumkur and Special Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989 & Special Court for Trial of Cases under Protection Of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as the "the Special Court") in Special Case No.167/2015, acquitting the accused of the offences punishable under Sections 366A, 344, 506(B) and 201 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC") and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter for brevity referred to as "POCSO Act").

¶17

The summary of the case of the prosecution before the Special Court was that, on the date 26-03-2015, at about 8:30 a.m., the daughter of the complainant who is PW-2(CW-2) (henceforth for brevity referred to as "the victim") had gone to a place called Chikkanahalli to appear for her II Year Pre-University Course Examination. After the Examination, she did not return home. In that regard, the complainant – Sri. Prasad (PW-1/CW-1), who is her father searched for

¶18

¶19

CRL.A No. 504 of 2017

¶20

his missing daughter, enquired with her friends and suspected the accused, since he was told that the victim was found in the company of the accused after the Examination, as such, lodged a complaint in the complainant Police Station which was registered in Crime No.62/2015, for the offence punishable under Section 366A of the IPC, against the accused.

¶21

During the investigation, it is said to have been revealed that the accused had kidnapped the victim after she came out from the College after writing the Examination and took her to a place called Kattemalalavaadi village in Hunasuru Taluk and thereafter by force, got her married at Mahadeshwaraswamy Temple in the same place. He also subjected the victim girl to sexual intercourse without her consent and against her will at different places and on different dates. During the investigation, the complainant Police claims to have traced the accused and the victim on the date 03-04-2015 and got them medically examined and recorded their statements.

¶22

¶23

CRL.A No. 504 of 2017

¶24

After completing the investigation, the complainant

¶25

Police filed charge sheet against the accused for the offences punishable under Sections 366A, 506B, 201 and 342 of the IPC and under Section 6 of the POCSO Act. However, charges were framed for the offences punishable under Sections 366A, 506B, 201 and 344 of the IPC and under Section 6 of the POCSO Act.

¶26

Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all thirteen (13) witnesses from PW-1 and PW-13, got produced and marked documents from Exs.P-1 to P-16(a) and produced seventeen Material Objects from MO-1 to MO-17. From the accused’ side, though no witness was examined, however, portions of the statement of PW-11 were got marked as Exs.D-1 and D-2.

¶27

After hearing both side, the learned Special Court, by its judgment dated 20-09-2016, acquitted the accused of all the offences punishable under Sections 366A, 344 and 506B and 201 of the IPC and under Section 6 of the

¶28

¶29

CRL.A No. 504 of 2017

¶30

POCSO Act. Challenging the same, the appellant - State

¶31

has preferred the present appeal.

¶32

The appellant –State, represented by its learned High Court Government Pleader and the

¶33

respondent/accused, represented by his learned counsel are physically appearing before the Court.

¶34

The Special Court’s records were called for and the same are placed before this Court.

¶35

Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Special Court's records.

¶36

For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Court.

¶37

After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:

¶38

¶39

CRL.A No. 504 of 2017

¶40

[i] Whether the prosecution has proved beyond reasonable doubt that on the date 26-03-2015, at about 01:00 p.m., the accused induced PW-2(CW-2) - victim girl, who was minor in her age, under the age of 18 years, to go with him and thus took her from near the Government PreUniversity College at Chikkanahalli, within the limits of the complainant Police Station, on a Motor Cycle to a different place called Kattemalalavaadi Village, Hunasuru Taluk, with an intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with him and thereby has committed an offence punishable under Section 366A of the Indian Penal Code, 1860?

¶41

[ii] Whether the prosecution has proved beyond reasonable doubt that, on the date 28-03-2015, at about 12:00 p.m., in Mahadeshwaraswamy Temple, situate in Kattemalalavaadi Village, the accused wrongfully confined the victim girl (PW-2/CW-2) with a mala fide intention by tying her hands and legs and thereby has committed an offence punishable under Section 344 of the Indian Penal Code, 1860?

¶42

[iii] Whether the prosecution has proved beyond reasonable doubt that on the date, time and place, mentioned at point No.[ii] above, the accused, by threatening the victim girl (PW-2/CW-2) at the point of a knife, forcibly married her and thereby

¶43

¶44

CRL.A No. 504 of 2017

¶45

committed an offence punishable under Section 506B of the Indian Penal Code, 1860?

¶46

[iv] Whether the prosecution has proved beyond reasonable doubt that, the accused at the time and place mentioned at point No.[ii] above, on the dates 28-03-2015 and 29-03-2015, has committed an act of aggravated penetrative sexual intercourse upon the victim (PW-2/CW-2) and thereby has committed an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012?

¶47

[v] Whether the prosecution has proved beyond reasonable doubt that, the accused, after committing the above offence of wrongful confinement of the victim girl, committed the alleged sexual assault upon the victim girl (PW-2/CW-2) and causing certain evidence of those offences to disappear and to screen himself from the legal punishment, threw the rope and knife into the river and thereby committed an offence punishable under Section 201 of the Indian Penal Code, 1860?

¶48

[vi] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

¶49

¶50

CRL.A No. 504 of 2017

¶51

Learned High Court Government Pleader appearing for the appellant-State has filed her written argument, wherein she contended that, the evidence of PW-3 and PW-9 goes to show that the date of birth of the victim girl was '01-02-1998' and even in her Section 164 Cr.P.C. statement also, the victim has shown her age as 17 years. The medical report at Ex.P-4 mentions her date of birth as '01-02-1998' only. Even the Special Court also, has, after consideration of the evidence, come to the conclusion that, the victim girl was aged about Seventeen years, one month and six days, as at the time of the incident. Therefore, it stands established that the victim was a minor girl, as on the date of the incident.

¶52

If is further stated by the learned High Court Government Pleader for the appellant - State that, the act of kidnap and confinement of the victim girl by the accused have been described by none else than the victim girl herself as PW-2. She has stated that though she tried to alert the people nearby, but the accused did not allow her but had threatened her showing a knife and had

¶53

¶54

CRL.A No. 504 of 2017

¶55

wrongfully confined her. Though her evidence shows that the accused and the victim girl had gone together, however, the victim, being a minor, the accused should not have taken her with him. Thus, the act of kidnap and wrongful confinement also stands established.

¶56

The learned High Court Government Pleader also stated that PW-2 - victim girl has clearly stated that, she was subjected to repeated sexual intercourses by the accused against her will and consent. Even medical evidence also does not rule out the act of sexual intercourse against the victim. Under the said circumstance, since the evidence of the victim girl inspires confidence to believe, the same can be the basis for conviction of the accused, as held by our Hon’ble Apex Court in the case of PHOOL SINGH VS. STATE OF MADHYA PRADESH reported in (2022) 2 Supreme Court Cases 74.

¶57

Learned High Court Government Pleader for the appellant – state, stating that the evidence of PW-2 (victim girl) has been consistent throughout and has come out in a natural manner, as such, the same can be

¶58

¶59

CRL.A No. 504 of 2017

¶60

believed, relied upon a judgment of the Hon’ble Apex Court in the case of RAI SANDEEP ALIAS DEEPU Vs. STATE (NCT OF DELHI) reported in (2012) 8 SUPREME COURT CASES 21.

¶61

With this, she submitted that since the Special Court has not appreciated the evidence placed before it in its proper perspective, but observing that the victim girl was a consenting party, as such, the alleged act by the accused was with consent, has passed the impugned judgment, which is erroneous. Hence, the same requires interference at the hands of this Court.

¶62

Per contra, learned counsel for the respondent (accused) in his argument submitted that, Section 366A of the IPC is applicable only against a woman. In the instant case, the victim, according to the prosecution, is a girl, who was minor in her age, as such, Section 366A of the IPC is not applicable to the case on hand. He further submitted that there are material inconsistencies in the statements of the witnesses.

¶63

¶64

CRL.A No. 504 of 2017

¶65

Further, the learned counsel for the respondent (accused) submitted that, it is highly unbelievable as to how come PW-2 - victim girl could able to travel for more than 100 kilometers on a Motor cycle in an unconscious state. The age of the victim is also not proved to be a minor.

¶66

Finally, stating that even the medical report mentions that there is no sign of recent sexual intercourse and no external injuries, as such, there is no evidence of the alleged sexual intercourse against the victim by the accused, the learned counsel submitted that the impugned judgment passed by the Special Court does not warrant any interference at the hands of this Court.

¶67

Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offences punishable under Sections 366A, 344, 506B and 201 of the Indian Penal Code, 1860 and Section

¶68

6 of the Protection of Children from Sexual Offences Act, 2012. Therefore, the accused has primarily the double

¶69

¶70

CRL.A No. 504 of 2017

¶71

benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.

¶72

(a) Our Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

¶73

“ 42(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

¶74

¶75

CRL.A No. 504 of 2017

¶76

acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

¶77

42(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.”

¶78

(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

¶79

(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:

¶80

¶81

CRL.A No. 504 of 2017

¶82

“ 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

¶83

The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti Vs. State of Haryana and others reported in AIR 2023 SUPREME COURT 1199.

¶84

¶85

CRL.A No. 504 of 2017

¶86

It is keeping in mind the above principles laid down

¶87

by the Hon’ble Apex Court, we proceed to analyse the evidence placed in this matter.

¶88

According to the prosecution, the victim girl was minor in her age, as on the date of the alleged offence and also on the date when the accused and the victim girl were said to have been traced by the Police on the date 03-04-2015. According to the prosecution, the date of birth of the victim girl is '01-02-1998'.

¶89

In order to prove the age of the victim girl, the

¶90

prosecution has mainly relied upon the evidence of PW-3(CW-3) – Smt. Gangalakshmi - the mother of the victim, PW-9(CW-17) - Sri. B. Hanumanthaiah - the Assistant Principal of S.K.V.D. PU College, Chikkanahalli, the Medico-Legal Examination report of the victim girl at Ex.P-4 and the School Admission record of the victim girl, depicting the date of birth of the victim, at Ex.P-13.

¶91

PW-3 (CW-3) - the mother of the victim, in her Examination-in-chief, has stated that, the date of birth of

¶92

¶93

CRL.A No. 504 of 2017

¶94

the victim girl who is her daughter is, '01-02-1998'. The denial suggestion made to her in her cross-examination was not admitted as true by this witness.

¶95

The victim girl, though was examined as PW-2, has not stated about her age in her evidence, however, while giving her details before administering oath, the victim has shown her age as eighteen (18) years, on the date 08-022016, on which date, her evidence was recorded in the Court, however, the said statement of the victim about her age was not on oath.

¶96

PW-6 (CW-12) - Dr. Muktambha, the Senior Specialist at the District Hospital, Tumakuru, though has stated that on the date 03-04-2015, in the evening at about 6:45 p.m., she has examined PW-2 - the victim girl who was brought by the complainant Police with the history of sexual assault, but has not stated in her evidence about the age of the victim girl, however, she has stated that after examining the victim girl, she has issued a medical certificate which she has identified at Ex.P-4. The said medical certificate shows the date of

¶97

¶98

CRL.A No. 504 of 2017

¶99

birth of the victim as '01-02-1998' and her age as on the

¶100

date of her medical Examination as at seventeen (17) years. However, there is nothing, either in the said medical certificate at Ex.P-4 or in the evidence of PW-6 - Doctor, as to, on what basis the said entries with respect to the date of birth and the age of the victim girl was entered in the medical certificate at Ex.P-4.

¶101

The main witness who speaks about the age and

¶102

the date of birth of the victim girl is, PW-9 (CW-17) – Sri. B. Hanumaiah - the Vice Principal of the High School Section in the Government S.K.V.D. PU College, Chikkanahalli. The witness has stated that, at the request

¶103

of the Police, he has furnished the extract of the School Admission record which he has identified at Ex.P-13. He has categorically stated that his School has got the document to show the date of birth of the victim girl as '01-02-1998'.

¶104

In the cross-examination of this witness, it was elicited that there was application of whitener in the particular row showing the name of the student and it is

¶105

¶106

CRL.A No. 504 of 2017

¶107

thereafter the name of the victim girl is mentioned therein.

¶108

The witness has admitted the said suggestion as true, however, there is a correction initial for effecting the said correction in the document. The witness denied a suggestion that Ex.P-13 does not pertain to the victim girl. Except suggesting to the witness that Ex.P-13 was a created document, nothing was suggested to the witness to shaken his evidence about the authenticity and correctness of the document at Ex.P-13. More importantly, no where in the cross-examination of this witness, the date of birth of the victim shown as '01-02-1998' in the document at Ex.P-13, was denied. Further, the evidence of PW-9 that his School has documents to show the date of birth of the victim girl as '01-02-1998' was also not specifically denied in his crossexamination.

¶109

Thus, the evidence of PW-3 - the mother of the victim that the date of birth of the victim is 01-02-1998, is further corroborated by the evidence of PW-9 as well the School Admission Extract record at

¶110

¶111

CRL.A No. 504 of 2017

¶112

Ex.P-13. Thus, it stands established that the date of birth of the victim girl is, 01-02-1998. As such, the argument of the learned counsel for the respondent (accused) that the prosecution has failed to establish that the victim girl was minor in her age, as on the date of the alleged offence, is not acceptable. On the other hand, the prosecution could able to prove that the date of birth of the victim girl being 01-02-1998, as on the date of the alleged offence, she was minor in her age and aged seventeen (17) years and one month. It is for the same conclusion even the Special Court also has arrived at, which finding of the Special Court regarding the date of birth of the victim girl has not been challenged by the respondent (accused) in any manner.

¶113

With respect to the occurrence of the alleged incident, the evidence of PW-2, PW-1, PW-3, PW-6, PW-7, PW-11 and of the Police officials are important and relevant.

¶114

PW-2 (CW-2) - victim girl, in her evidence has stated that, on the date 26-03-2015, after attending the

¶115

¶116

CRL.A No. 504 of 2017

¶117

II year Pre-University Course Examination, while she was going back to her house, the accused forcibly made her to drink a juice and after drinking the same, she lost her consciousness and could not able to know what happened thereafter. When she regained consciousness, she was in a dark room of a Temple with her hands and legs tied. On the date 28-03-2015, the accused forced her to marry and threatened her by showing a knife. On the same day, at Mahadeshwaraswamy Temple, he tied a Mangalasutra (Taali) forcibly around her neck. The said Mahadeshwara Swamy Temple is at a distance of about 4 kms. from Kattemalalavaadi village, Hunasuru Taluk of Mysore District, on the banks of river Lakshmana Teertha, on the Road leading from Tondaalu village to Bannikuppe.

¶118

PW-2 has further stated that, after the accused tied the Mangalasutra around her neck, both of them stayed in that Temple on that day. During that night, in spite of her refusal and denial, the accused raped her and threatened that she should speak to the Police as he is going to tutor her otherwise he would kill her. Thereafter, the accused

¶119

¶120

CRL.A No. 504 of 2017

¶121

made her to stay in Kuriroppa (a portion of the land where

¶122

sheep herd will be maintained by shepherds for the time being and at the permission of the landlord). The accused committed rape upon her in that place also. It is thereafter the Police went there and brought both herself and the accused to the complainant Police Station. Thereafter, after taking her to a taluka place called ‘Shira’, her statement was recorded by a Woman Police Officer.

¶123

PW-2 the victim has further stated that she was also referred to a Medical Doctor for her medical Examination. The Doctor examined her medically and has issued a report as per Ex.P-4. The witness has identified her signatures therein at Ex.P-4(a) and P-4(b). She stated that she has narrated about the incident in front of the Doctor. At the time of Examination, the Doctor collected her dress materials which were a choodidar top, choodidar bottom, innerwear, choodidar slip and an underwear. The witness identified those cloths at MO-1 to MO-5.

¶124

¶125

CRL.A No. 504 of 2017

¶126

PW-2 has further stated that she took the Police and

¶127

shown them the place where the accused forcibly married her and committed rape upon her. She took them to the premises of Udbhavakodi Basaveshwaraswamy Temple where the Police drew a panchanama as per Ex.P-5. Thereafter she took them to Mahadeshwaraswamy Temple, where the Police drew a panchanama as per Ex.P-6. She also took them to Kuriroppa in a village, where also a mahazar as per Ex.P-7 was drawn. She stated that her parents and one Sri. Krishnamurthy and Sri. Jayanna were with her, when all these panchanamas were drawn. She stated that the Police also seized the vehicle. The witness stated that after the Police produced her before the Magistrate at Shira, she has given her statement, which she has identified at Ex.P-8 and her signatures therein at Exs.P-8(a) and P-8(b).

¶128

PW-2 – victim girl was subjected to a detailed crossexamination from the accused’ side. In her crossexamination, she referred to three names as Chaitra, Asha, and Hema as her close friends. She stated that one

¶129

¶130

CRL.A No. 504 of 2017

¶131

Kum. Hema and one Kum. Divya were accompanying her to the College while she used to go from her village to the College. She stated that she did not know the accused who had never spoken to her, however, she had seen the accused in the village. She stated that it was for the first time, she saw the accused after completion of her Examination. After completing the Examination on the said date, she spoke to her friend Hema.

¶132

The witness (PW-2 – victim) further stated in her cross-examination that when the accused administered her the juice to drink, she tried to alert the people there, however, the accused did not allow her to do it and even the people present there also did not come to her rescue, by seeing her behaviour. Her friends also did not come to her rescue. She stated that after she regained the consciousness, she could not immediately make out as to where she was since her hands and legs were tied and in a dark room and also since she was taken to a strange place. She gave more details about her alleged

¶133

¶134

CRL.A No. 504 of 2017

¶135

confinement in the said place and her knowledge about the Temple and the deities therein.

¶136

Similarly, with respect to the accused taking her to Kuriroppa also, the witness has given more details as to the people present there, who, according to the witness, were an old lady, a woman and an old man and stated that they did not talk to her. She stated that while accused was taking her from Kuriroppa on his Motor cycle, she did not attempt to alert the people there. She denied the suggestion that the accused had not kidnapped her and had not subjected her to rape. However, with respect to the panchanamas at Exs.P-5, P-6 and P-7, she stated that she was not aware as to what was written in those documents. She admitted a suggestion as true that Krishnamurthy and Jayanna are the friends of her father.

¶137

Thus, in her cross-examination, rather than eliciting any statement from the witness which can create a doubt in the case of the prosecution or create any suspicion in believing the evidence of PW-2, additional details which were helpful in further strengthening the case of the

¶138

¶139

CRL.A No. 504 of 2017

¶140

prosecution and believing the evidence of the victim were elicited. She denied a suggestion that due to the alleged rivalry between the accused and her father, a false case was lodged through her by her father.

¶141

PW-1 (CW-1) – Sri. Prasad - the father of the victim and PW-3(CW-3) – Smt. Gangalakshmi - the mother of the victim, both stated that PW-2 the victim who is their daughter was studying in PUC II year as on

¶142

the date of the incident which was on the date 26-03-2015. On the said day, the victim who had been to her College to attend the Examination, did not return to their home in the afternoon. After going near the College,

¶143

when these people enquired with the friends of their daughter, these people came to know that the accused was found talking with their daughter, as such, since they could not trace their daughter, PW-1 lodged a complaint with the Police as per Ex.P-1.

¶144

PW-1 has further stated that on the next day, i.e. on the date 27-03-2015, the Police came near their house and drew a scene of offence panchanama as per Ex.P-2.

¶145

¶146

CRL.A No. 504 of 2017

¶147

They also drew one more scene of offence panchanama near the College as per Ex.P-3.

¶148

Both the witnesses (PW-1 and PW-3) have stated that on the date 03-04-2015, the Police traced their daughter and also the accused and brought them to the Police Station. These people enquired the victim and through her came to know that the accused, had, by force, taken her on a Motor cycle to a village and by force tied a Maangalya chain (Taali) and stating that he has married her, had forcibly subjected her to rape.

¶149

PW-3 has further stated that after bringing back the victim by the Police, she (PW-2 – victim) was sent to the Medical Doctor for her medical Examination and she also had accompanied her daughter and put her signature in the medical report at Ex.P-4(c). PW-3 has stated that the Police had also taken them to Ganapathi Temple and drawn a panchanama as per Ex.P-5. From there, they were taken to Mahadeshwaraswamy Temple, where a panchanama was drawn as per Ex.P-6. Then they were

¶150

¶151

CRL.A No. 504 of 2017

¶152

also taken to Kuriroppa, where a panchanama was drawn as per Ex.P-7 and a Motor cycle was seized.

¶153

PW-1 and PW-3 were subjected to a detailed cross-

¶154

examination from the accused’ side. In their crossexamination, it was attempted to show that there was rivalry between the accused and PW-1, however, the defence counsel could not succeed in his said attempt. More details were elicited about the location of the College and the classmates of the victim girl, however, the witnesses have given the details as sought for in their cross-examination from the accused’ side. PW-1 made it clear that the victim had no cell phone with her when she had been to Examination and thereafter taken by accused with him. He stated that his house does not have a landline telephone connection. He gave more details as to with whom all he enquired about his daughter, when she did not return home after the Examination. He stated that he enquired with her Teachers also in that regard.

¶155

PW-1 further stated that after coming to know from the friends of his daughter that the accused was found

¶156

¶157

CRL.A No. 504 of 2017

¶158

talking with her, he tried to search even for the accused also, and in the said process, his friends helped him, however, he could not trace either his daughter or the accused.

¶159

Similar to PW-1 even PW-3 also was further subjected to a detailed cross-examination from the accused’ side wherein she gave more details about the status of her daughter and the attempt made by them to search for their daughter after she was found missing. She also stated about how her daughter was commuting to College every day from their village. The witness gave more details about the Police taking the victim and her to different places for drawing panchanamas.

¶160

Thus, even in the cross-examination of PW-1 and PW-3 also, the accused could not able to elicit anything from the witnesses to shaken their evidence given in their Examination-in-chief or in creating any doubt in believing their evidence given in their Examination-in-chief. On the contrary, more details about the incident and evidence given in their Examination-in-chief were elicited.

¶161

¶162

CRL.A No. 504 of 2017

¶163

Both the witnesses denied the suggestion that there

¶164

was any enmity between the accused and PW-1, as such, a false case was got lodged by them through their daughter (victim girl).

¶165

PW-11 - (CW-4) – Kum. Hema, who, according to PW-1 (CW-1) was a close friend of PW-2 (victim), though stated that on the date 26-03-2015, there was English Language Examination in their II Year PreUniversity Course where the victim girl was her friend and attended the Examination, however, she stated that after the completion of the Examination and a group photo, she left the place, as such, she did not know what happened thereafter. She stated that even though the members of the family of CW-2 (victim girl) enquired her about CW-2, however, she told them that she did not know anything. She stated that the Police also enquired her, to whom she stated that CW-2 (victim girl) had attended the Examination on the said day.

¶166

Since the witness (PW-11) did not support the case of the prosecution to the extent the prosecution was

¶167

¶168

CRL.A No. 504 of 2017

¶169

expecting from her, she was permitted to be treated as hostile. Even after cross-examining her with the leave of the Court, the prosecution could not get any support from the witness to the effect that she had seen the accused talking to CW-2 after the Examination on the said day.

¶170

In her cross-examination from the accused’ side, she gave more details about their College and its premises. She reiterated that the victim girl was her friend. She gave the details of the location of the College. She also stated that, she came to know later that the accused was found talking with CW-2 (victim girl), however, she stated that she had not given the statement before the Police as per Exs.D-1 and D-2.

¶171

Thus, from the evidence of PW-11, it is proved beyond doubt that the victim girl was studying in II Year PreUniversity College, as on the date of the alleged incident and on the said date which was on 26-03-2015, the victim had attended her II Year Pre-University Examination and it is thereafter she was found missing. In that regard, the parents of the victim girl (PW-2) had enquired with PW-11 also. The evidence of

¶172

¶173

CRL.A No. 504 of 2017

¶174

PW-11 that she came to know that the accused was talking to the victim after the Examination which was elicited from the accused’ side, has remained un-denied.

¶175

The evidence of PW-2 that after her return to their village, when the Police traced her with the accused and brought them back, her statement was recorded by a lady Police Officer, is corroborated by the evidence of PW-13 (CW-20) – Smt.S.C. Bharathi.

¶176

Smt. Bharathi, the then Assistant Sub-Inspector of the complainant Police Station, has stated that at the instruction of their Deputy Superintendent of Police through the Police Inspector, Shira City, she has enquired the victim in the presence of her mother and recorded her statement as per Ex.P-16.

¶177

In her cross-examination from the accused’ side, the witness stated that the victim girl stated before her that she was known to the accused since a long time prior to the date of the incident. The victim did not state before her that the accused made her to drink some juice and thereafter she fell unconscious. She also stated that the

¶178

¶179

CRL.A No. 504 of 2017

¶180

victim did not say that her hands and legs were tied and accused threatened her by showing a knife. She stated that when she recorded the statement of the victim, she noticed a Maangalya chain (Taali) around her neck. She denied a suggestion that she did not record the statement of the victim girl. Thus, even in the cross-examination of PW-13 also, nothing could be elicited to suspect the occurrence of the alleged incident as narrated by none else than the victim girl; rather, the cross-examination of PW-13 has made the evidence of PW-13 believable that she had recorded the statement of the victim girl wherein the victim has stated before her as per Ex.P-16. The specific statement of PW-13 that the victim girl has stated before her that the accused was known to her since a long time prior to the date of occurrence of the incident has not been denied in her cross-examination specifically.

¶181

PW-7 (CW-10) – Sri. Prem Prasad - an

¶182

Agriculturist in Kattemalalavaadi village in Hunasuru Taluk has stated that the land bearing Survey No.335/2 in the said village stands in the name of his wife, however, he is

¶183

¶184

CRL.A No. 504 of 2017

¶185

taking care of the cultivation in the said land. He had kept sheep herd in the said land on an agreement with the shepherd. Stating so, the witness expressed his ignorance about whether the accused or anybody had been to his said land where the sheep were kept and whether any Police and the victim girl had been to the said place.

¶186

Even after treating him hostile and cross-examining the said witness, the prosecution could not get any support from him. He denied that a panchanama was drawn in the said place (Kuriroppa) in his presence and a Motor cycle was seized under a panchanama as per Ex.P-9. This witness was not cross-examined from the accused’ side.

¶187

Thus, from the evidence of this witness, though the prosecution could not able to establish that the accused had brought the victim girl to the said place Kuriroppa, however, it stands proved that there was a place called Kuriroppa in Kattemalalavaadi village in the land of this witness at the relevant point of time.

¶188

¶189

CRL.A No. 504 of 2017

¶190

After the above set of witnesses, whom the prosecution examined in order to prove the alleged incident, the next set of witnesses whom the prosecution examined are PW-4(CW-5) - Jayaramaiah, PW-5(CW-7) - Srinivas K.S., who are said to be the panchas to the different panchanamas.

¶191

PW-4 (CW-5) in his Examination-in-chief has stated that the panchanamas at Exs.P-3, P-5, P-6 and P-7 at the places and the dates shown in those panchanamas were drawn in his presence and that he has put his signatures in those panchanamas as a pancha. The witness has given the details as to the places where those panchanamas were drawn and on which dates.

¶192

This witness stated that Ex.P-3 was drawn near the College from where the accused was said to have taken the victim with him and Ex.P-5 was drawn near the village called Kattemalalavaadi Village. Ex.P-6 was drawn at Mahadeshwaraswamy Temple on the banks of the river Lakshmana Teertha and Ex.P-7 was drawn in Kuriroppa which was at a distance of 3 kms. to 4 kms. from

¶193

¶194

CRL.A No. 504 of 2017

¶195

Mahadeshwaraswamy Temple. He also stated that under

¶196

Ex.P-7, a Hero Honda Motor cycle was also seized.

¶197

In his cross-examination, though attempts were

¶198

made to show that no panchanama was drawn in his presence and that being a friend of PW-1 and belonging to the same community as that of PW-1, he was deposing falsely, the witness has not admitted those suggestions as true. On the other hand, the witness stated that it is not just PW-1 alone, but even the accused also belonged to the same community to which he belongs.

¶199

Thus the evidence of this witness that the panchanamas at Exs.P-3, P-5, P-6 and P-7 were drawn in his presence stands corroborated by the evidence of PW-2 (victim girl) and also the evidence of PW-3 and stands established that the victim girl has given the details to the Investigating Officer about the places she was taken by the accused and shown those places to the Investigating Officer in the presence of the panchas.

¶200

As such, the evidence of PW-2 (victim girl) that the accused has taken her to Kattemalalavaadi village,

¶201

¶202

CRL.A No. 504 of 2017

¶203

Mahadeshwaraswamy Temple and Kuriroppa stands corroborated by the evidence of PW-4, which, in turn, corroborates the evidence of PW-10 (CW-23) – Sri. C.H. Ramakrishnaiah - the Investigating Officer that, he drew those panchanamas at the relevant places in the presence of the victim and the panchas. As such, the places of the alleged commission of the offence stands proved by the prosecution.

¶204

PW-5 (CW-7) - Srinivas K.S., has stated that the scene of offence panchanama as per Ex.P-2 which was the house of the victim was drawn in his presence. However, in his cross-examination, the witness stated that the Police had written the said panchanama and at their instruction, he has put his signature to the said panchanama. He denied a suggestion that the panchanama was drawn in the Police Station. The said statement that the Police had drawn the panchanama, by itself, would not make his evidence that the said panchanama at Ex.P-2 was drawn in his presence a doubtful one.

¶205

¶206

CRL.A No. 504 of 2017

¶207

Further, the evidence of PW-1 that, the next day

¶208

after he lodging the complaint with the Police as per Ex.P-1, the Police visited their house and drew a panchanama as per Ex.P-2, stands corroborated by the evidence of PW-5 and the evidence of PW-12(CW-22) – Sri. Prashanth M. - another Investigating Officer, who has stated that, the next day, after PW-1 lodged a complaint with him as per Ex.P-1, he visited the places of offence which were the house of the victim and the College premises and drew a panchanama as per Exs.P-2 and P-3, stands corroborated and proved.

¶209

The last set of witnesses whom the prosecution

¶210

has examined to prove the occurrence of the incident are, PW-6 (CW-12)- Dr. Muktambha and PW-8 (CW-13) – Dr. Ranganatha M.B., who have given the medical evidence to the case of the prosecution.

¶211

As observed above, PW-6 (Doctor) has stated that the complainant Police had brought the victim girl to their Hospital on the date 03-04-2015 at 6:45 p.m. with the history of sexual assault. The girl was accompanied by her

¶212

¶213

CRL.A No. 504 of 2017

¶214

mother. The witness (PW-6 -Doctor) medically examined the victim girl after obtaining consent from the girl and also her mother. The witness (PW-6 - Doctor) stated that in the said Examination of the victim girl, she did not notice any external injuries on the victim, so also inside the genital organs. Hymen was irregular, mejora was independent and separate. There was no evidence suggestive of recent sexual intercourse. However, due to the tear of hymen, there is possibility of sexual intercourse. The witness stated that she collected the dress worn by the victim girl when she was produced before her and collected the pubic hair, vaginal swab, two vaginal smear and blood sample from the victim and sent the same to the Investigating Officer for their further processing. She has identified those articles at MO-6 to MO-11.

¶215

The witness (PW-6 – Doctor) specifically stated that the assaulted girl stated before her as to how she was sexually assaulted and the same has been recorded by her in her medical certificate and obtained the signature of both the

¶216

¶217

CRL.A No. 504 of 2017

¶218

victim girl and her mother. Stating so, the witness has identified the medical report at Ex.P-4 and signatures of her mother therein at Ex.P-4(d) and P-4(e) and her signature at Ex.P-4(f).

¶219

In her cross-examination from the accused’ side, she (PW-6) described about the history that was given by the victim when she was brought before her for medical examination. She stated that the victim stated before her that the accused had threatened her by showing a knife and taken her with him. She was taken from Chikkanahalli village to Hunasuru where they stayed for a day and on the next day, the accused took her to a Lakshmi Temple at Mysore and got her married to him. The witness also stated that the victim told her that she was subjected to sexual intercourse twice. She stated that in case of any resistance by the victim at the time of sexual intercourse, there is possibility of she sustaining some injuries. She stated that the victim did not state to her about the accused making her to drink the juice while taking her with him. She stated that since the menstrual period was

¶220

¶221

CRL.A No. 504 of 2017

¶222

running to the victim, she could not collect any other article from the victim.

¶223

The medical evidence of PW-6 (Doctor) makes it clear that, even before the Doctor also, the victim girl has stated that she was taken by the accused. Though she has stated that she was taken by the accused at the point of a knife and not stated that she was made to drink juice and lost her consciousness, however, the main aspect that it was the accused and accused alone who had taken her with him against her will and consent is also stated before the Doctor by the victim girl. The evidence of PW-6 also shows that the victim girl was shown to have undergone sexual intercourse.

¶224

PW-8(CW-13) – Dr. Ranganatha M.B., is the Medical Officer at General Hospital, Shira. His evidence shows that he has examined the accused and issued a Medical Certificate. The accused was produced before him on the date 03-04-2015 by the complainant Police. He enquired the accused, who stated to him that on the date 26-03-2015, he took the victim from Chikkanahalli on a

¶225

¶226

CRL.A No. 504 of 2017

¶227

Motor cycle and married her in a Temple at

¶228

Kattemaranahalli on the date 28-03-2015. Thereafter, till 03-04-2015, they were there, on which day, the Police came there and brought them back. The witness stated that the accused also told him that during the said period, without using the condoms, he had sexual intercourse with the girl, twice. The witness stated that the medical Examination of the accused revealed that he was capable of doing sexual intercourse. Accordingly, he has issued a Certificate which the witness has identified at Ex.P-10 and his signatures therein. He further stated that at the time of examining the accused, he has collected semen, pubic hair, an underwear, a lungi and a banian from the accused and had sent them to the Police for their further Examination from Forensic Science Laboratory(FSL). He has identified those articles from MO-12 to MO-17.

¶229

In his cross-examination from the accused’ side, he stated that, since the accused was in the very same dress, which he was wearing at the time of sexual intercourse and had not washed them, on the other hand, was

¶230

¶231

CRL.A No. 504 of 2017

¶232

wearing the same cloth continuously for five days, signs of semen were visible on his underwear. Though he stated that even during the sleep also there can be ejaculation, but no further statements were elicited either from the Doctor or from the dress materials placed by the accused’ side to show that the signs of semen residues on the underwear of the accused were due to the alleged ejaculation during sleep. On the contrary, the evidence of this Doctor that, by a naked eye, the symptoms of semen were noticed on the underwear and the accused was wearing the same cloth for five days continuously, has remained un-denied and un-disputed.

¶233

The evidence of PW-6 (Doctor) that she examined the victim girl medically stands corroborated by the evidence of PW-2 and PW-3 and also by the evidence of PW-10 (CW-23) - the Investigating Officer.

¶234

Similarly, the evidence of PW-8 that he medically examined the accused corroborates the evidence of PW-12 (CW-22) - Prashanth M. - the other Investigating Officer, who has stated that after tracing and bringing back the

¶235

¶236

CRL.A No. 504 of 2017

¶237

accused and the victim girl, he had sent both the accused and the victim girl to the medical Doctor for their respective medical Examinations. The evidence of PW-8 (Doctor) that the accused was found capable of doing sexual intercourse has remained un-denied.

¶238

PW-10 (CW-23) - Sri.C.H. Ramakrishnaiah, the Investigating Officer has also stated in his evidence that, he collected the articles sent by PW-6 (Doctor) who had examined the victim girl and collected the articles from her. The witness has identified those articles. He has stated that he has sent the articles collected in this matter for their chemical Examination to the Forensic Science Laboratory (FSL) and has received the report from the FSL on the date 10-06-2015, which the witness has identified at Ex.P-14. He also stated that by submitting the said FSL report to the Medical Officer, he has obtained their final report and the dress materials on the date 12-06-2015 and only thereafter he has filed the charge sheet against the accused.

¶239

¶240

CRL.A No. 504 of 2017

¶241

The FSL report at Ex.P-14 shows that seventeen (17)

¶242

articles which PW-10 has identified from MO-1 to MO-17, were received by the said Laboratory and examined by them. Further, the presence of seminal stain and the presence of spermatozoa were not detected in any of those articles. Thus, the evidence of PW-8 – Dr.Ranganath M.B., that he could notice by bare eyes the signs of semen on the underwear of the accused has not been corroborated by the FSL report. Still, merely because of the absence of the presence of seminal stain or spermatozoa, by that itself, it cannot be held that, no act of sexual intercourse has taken place, that too, particularly, when PW-8 has stated that, the accused was capable of having sexual intercourse and that the accused himself has stated before him that he had taken the victim with him and had sexual intercourse with her two times.

¶243

Similarly, PW-6 (Doctor), who examined the victim girl has also stated that there was possibility of the victim girl being subjected to sexual intercourse and that the victim girl herself has stated before her that, against

¶244

¶245

CRL.A No. 504 of 2017

¶246

her will and consent, she was subjected to sexual intercourse by the accused, more than once.

¶247

Both PW-6 and PW-8, being dis-interested

¶248

independent witnesses and medically qualified Doctors, their evidence finds no reason to disbelieve, that too, particularly, when the evidence of none else than the victim girl as PW-2 fully stands corroborated with the evidence of PW-6 and PW-8 about the history of sexual assault upon the victim girl by the accused.

¶249

From the above evidence of the prosecution

¶250

witnesses, it can be seen that, PW-2 the victim girl who was minor in her age had been to attend her II PreUniversity Examination on the date 26-03-2015 and after the Examination in the afternoon, she did not return home.

¶251

The evidence of PW-11 (Kum. Hema) that the victim girl being her friend, she had seen the victim in the Examination Hall on the said day, has remained undenied, so also, the evidence of PW-1 and PW-3 (the

¶252

¶253

CRL.A No. 504 of 2017

¶254

parents) that their daughter had been to the College to attend the Examination on the said date. Immediately after they noticing that their daughter has not returned home after the Examination, PW-1 and PW-3 have searched for their daughter at different places including enquiring the friends of their daughter and even PW-11 – Hema, whom the victim has stated as one of her close friends, was also enquired in that regard.

¶255

Though PW-11 has stated that she did not see the accused talking to the victim, but later came to know that the accused had taken the victim girl with him, however, the evidence of PW-1 that the friends of his daughter told him that the victim was found in the company of the accused, cannot be disbelieved, as otherwise, he would not have lodged the complaint suspecting the accused about taking his daughter with him. Even, it is based on the said suspicion made by the complainant (PW-1) about the accused taking the victim with him, the Police continued their investigation and they could able to collect the details as to where the accused had taken the girl and

¶256

¶257

CRL.A No. 504 of 2017

¶258

proceeding to Kattemalalavaadi village, they could able to trace both the accused and the victim together and bring them back. Therefore, the accused had taken the victim who was minor in her age with him on a Motor cycle to Kattemalalavaadi Village and had kept her with him from the date 26-03-2015 till the date 03-04-2015, when the Police went there and brought them back, stands established.

¶259

Further, the seizure of the Motor cycle under the panchanama at Ex.P-7 which is corroborated by the evidence of PW-4 - pancha, shows that the said vehicle was used by the accused in taking the victim girl with him.

¶260

Even though the victim girl is shown to have given different versions about the manner of she being taken by the accused, at different places/stages, the same would not come in the way of believing the case of the prosecution.

¶261

¶262

CRL.A No. 504 of 2017

¶263

No doubt, the victim girl is shown to have stated in her Section 164 Cr.P.C. statement before the Magistrate which is marked at Ex.P-8 that, the accused was a person belonging to her village and while she was returning after attending the Examination on the date 26-03-2015, the accused forcibly made her to drink juice and thereafter she slept and did not know what happened and when she regained consciousness, she was in some different place in a house, with her hands and legs tied. Thus, she has stated that she was administered juice to drink before being taken by the accused with him. Similarly, in her evidence as PW-2 also, she has stated that she was administered juice to drink by the accused and thereafter she lost her consciousness.

¶264

On the other hand, her statement before PW-6 (Doctor) when she was produced before the said Doctor for her medical Examination shows that, the victim girl has stated to the Doctor (PW-6) that the accused had shown her a knife and threatened her to kill and she was taken with him by putting her under life threat at the point of a

¶265

¶266

CRL.A No. 504 of 2017

¶267

knife. However, PW-2 (the victim) was not confronted in her cross-examination from the accused’ side suggesting to her that she had stated before the Doctor that she was taken by the accused at the point of a knife, by putting her under threat to her life. Her evidence that after drinking juice, she has lost her consciousness and was taken on a Motor cycle by the accused to a different place which was elicited from the accused’ side, which is at a distance of 170 kms. to 200 kms., would give rise to a doubt as to, how can an unconscious person be taken by a single rider on a Motor cycle for such a long distance on a two wheeler.

¶268

It is the said point of argument, the learned counsel for the respondent (accused) also highlighted to a larger extent in his argument. This creates a doubt that the victim was administered with juice and then taken by the accused at a different place. If that were to be the case, then the Investigating Officer would have and required to conduct investigation and ascertain as to in which Shop near the place of the alleged kidnap, the victim was

¶269

¶270

CRL.A No. 504 of 2017

¶271

administered juice to drink and would have drawn a panchanama of that place and recorded the statements of the Shop owner or the vendor of the juice. However, no evidence in that regard is forthcoming, except the say of the victim girl (PW-2) which is contrary to her alleged statement before PW-6 (Doctor). As such, it cannot be believed that she was administered with juice and only thereafter she was kidnapped by the accused.

¶272

The other version of the prosecution case as recorded in Ex.P-4 by the Doctor (PW-6) as the history given by the victim that she was threatened by the accused with a knife and then she was taken by the accused with him, also does not find any corroborative evidence. More over, it is not the say of PW-2 who herself is the victim in the matter. Further, no knife is recovered in the instant case. Though charge sheet contains that the said knife was thrown in a river, however, no evidence on the said point has been placed by the prosecution. Thus, the victim was threatened by the accused at a knife point, prior to she being taken away by the accused with him

¶273

¶274

CRL.A No. 504 of 2017

¶275

also does not inspire confidence to believe. On the other hand, the evidence of PW-1, PW-2 and PW-3 shows that the accused was not an unknown person to them prior to the incident. Though PW-2 - the victim, at some places in her evidence attempted to show that the accused was totally a stranger to her and it was only on the date of the incident that she has seen him for the first time, but her own evidence also goes to show that she has seen the accused in her village.

¶276

Further, her own evidence shows that at the time of the alleged administration of juice to her by the accused, she did not alert the people in that area. Though she stated that the accused did not give scope for the same, but she has not explained as to in what manner she had made an attempt, if any, and in what manner she was prevented from alarming the people nearby.

¶277

Furthermore, when it could not be established by her (the victim) that she fell unconscious, on the contrary, Ex.P-4 shows that she has stated before the Doctor that she was taken by the accused by putting her under life

¶278

¶279

CRL.A No. 504 of 2017

¶280

threat at the point of a knife, she had enough opportunities to alarm or alert the people nearby while moving from the place of her alleged kidnap which was near her College upto Kattemalalavaadi village where she was said to be kept under wrongful confinement. No attempts were made by her at that point of time.

¶281

Furthermore, even after she (the victim) was said to have regained her consciousness, admittedly, her mouth was not closed nor tied nor plastered and according to her, it was only her hands and legs that were tied. Still, she did not scream or yell or shout nor made any attempt to alert the people nearby who could have heard her screaming, if any, made by her. On the next day also, when the accused is said to have taken her to Mahadeshwaraswamy Temple, it is not known as to how she was willing to sit in the Motor cycle and go with the accused to the said Temple without even making any attempt to alarm/alert the people around her. Even in the process of the alleged marriage where the accused is said to have tied the Maangalya chain around her neck, the

¶282

¶283

CRL.A No. 504 of 2017

¶284

witness (victim) has not stated that she attempted to alert the people nearby.

¶285

Similarly, when she is said to have been taken to a place called Kuriroppa by the accused, though the distance was short of about 4 kms., still, she did not alert the people on the way. Even at Kuriroppa also, where even according to PW-2 the victim, three people were there, she did not tell them about she being kidnapped by the accused and having been subjected to rape by him. Thus, from the date of the alleged kidnap on the date 26-03-2015 till she was traced by the Police along with the accused on the date 03-04-2015, she had made no attempt to alert any one or reveal to anybody about the alleged incident. This would clearly go to show that the victim was not only knowing the accused since prior to the incident, but also was liking him and willingly she had accompanied the accused after the Examination on the date 26-03-2015. However, after she was traced by the Police and brought back to her parents, she had created a story stating that she was forcibly taken by the accused,

¶286

¶287

CRL.A No. 504 of 2017

¶288

in which regard, she has given two versions of the alleged

¶289

type of kidnap, i.e. one is a threat from the point of a knife and the other is administration of juice making her to fall unconscious.

¶290

The above analysis of evidence would go to show that, the victim girl was not taken by the accused with him against her will or consent or by any collusive or clandestine means such as making her to fall unconscious,

¶291

etc., on the other hand, having been induced by the accused on the date 26-03-2015, who had come near her College and waiting for her, the victim accompanied him to go with him. However, the victim having been a minor in her age, i.e. below the age of 18 years as on the said date, still continued to be under the guardianship of her parents, i.e., PW-1 and PW-3. Admittedly, the accused taking the victim with him on the said day was neither to the knowledge of PW-1 or PW-3 nor their consent was

¶292

there for the said act. As such, the act of the accused

¶293

taking the victim girl with him on the date 26-03-2015 to a different place without the knowledge or consent of the

¶294

¶295

CRL.A No. 504 of 2017

¶296

parents of the victim girl, who was a minor as on the said date, amounts to an act of kidnap, punishable under Section 363 of the IPC.

¶297

Though a specific charge is not framed against the accused for the offence punishable under Section 363 of the IPC, however, the accused has been charged with the offence punishable under Section 366A of the IPC which is a major offence. Since the ingredients required to prove the offence punishable under Section 363 of the IPC are also part of the essential ingredients of the offence punishable under Section 366A of the IPC, even without framing a specific charge for the offence punishable under

¶298

Section 363 of the IPC, since it is a minor offence as against the charge framed against the accused under Section 366A of the IPC, the accused can be held guilty of the offence punishable under Section 363 of the IPC.

¶299

The prosecution has accused the accused of committing an offence punishable under Section 366A of IPC. The charge levelled against the accused is also for

¶300

¶301

CRL.A No. 504 of 2017

¶302

the same offence stating that his act of kidnapping the victim was with an intention that she may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse.

¶303

As observed by the Hon’ble Apex Court in the case of SAT PARKASH Vs. STATE OF HARYANA AND ANOTHER reported in (2015) 16 Supreme Court Cases 475 , to constitute an offence punishable under Section 366A of the IPC, inducing the minor should have been with reference to an intent to force or seduce her to illicit intercourse with another person.

¶304

In the instant case, it is not the case of the prosecution that, the accused intended to subject the victim to sexual intercourse with another person or forcing her to have such an act. On the other hand, the case of the prosecution as well the evidence of the prosecution witnesses is also that it was the accused himself who subjected the victim to sexual intercourse. As such, Section 366A of the IPC stands short of being proved by the prosecution, on the other hand, the prosecution has

¶305

¶306

CRL.A No. 504 of 2017

¶307

proved the offence punishable under Section 363 of the IPC, against the accused.

¶308

The next question that remains for consideration is, whether the accused has committed an offence punishable under Section 6 of the POCSO Act?

¶309

PW-2 - victim girl has stated in her evidence that, the accused, after taking her to a distant place and confining her in a room and thereafter forcibly tying a Maangalya chain around her neck, kept her with him in Mahadeshwaraswamy Temple, where he had tied the Maangalya chain to her. On the said night, he committed rape upon her against her will and consent and despite her protest. She also stated that after the act, he threatened her of dire consequences in case if she reveals about the incident of rape to anybody. The witness stated that thereafter the accused took her to Kuriroppa and there also he committed rape upon her.

¶310

Thus, according to the victim, the accused has committed sexual assault upon her and subjected her to

¶311

¶312

CRL.A No. 504 of 2017

¶313

rape on two occasions before they were traced and brought back by the complainant Police.

¶314

As observed above, there are no other witnesses except the evidence of PW-2 the victim girl, who could speak about the alleged sexual assault upon her by the accused. Even though the parents of the victim as PW-1 and PW-3 also have stated about the victim being raped by the accused, however, their evidence is purely hearsay based upon what they heard from the victim. Still, what can be gathered from their evidence is that, the victim girl immediately after she was brought back to her place by the complainant Police, has revealed about the incident of

¶315

rape by the accused to her parents. Thus, without there being any delay, immediately, after she saw her parents on her return to her place, she has revealed before them about the act committed by the accused. Thus, there was no time for the victim or the parents to design a story of rape against the accused.

¶316

¶317

CRL.A No. 504 of 2017

¶318

Secondly, it is very much common and expected

¶319

of the parents of a victim girl to enquire about the incident and collect the details as soon as her return. As such,

¶320

both PW-1 and PW-3, as parents of the victim have enquired with her about the details about her missing from the place till she was brought back to their place.

¶321

Thirdly, the victim who has stated about she being taken by the accused with him and subjecting her to rape on more than one occasion, cannot be considered as a story weaved by her and being the daughter of PW-1 and PW-3, it is normally expected of a child to reveal the incident before her parents.

¶322

Fourthly, it is generally taken that the parents of the victim would not voluntarily allege sexual assault against their daughters. In several of the incidents, even if such an assault has taken place, still, the parents would be hesitant to reveal the same to the society. Under the said circumstance, PW-1 and PW-3 since have specifically stated that the victim girl who is their daughter revealed

¶323

¶324

CRL.A No. 504 of 2017

¶325

to them that the accused has committed rape upon her,

¶326

the same cannot be brushed aside treating it purely as a hearsay.

¶327

The medical evidence of PW-6 (Doctor) shows that being a Doctor who examined the victim girl, before conducting the medical Examination, she has collected the history by none else than the victim and she was told by the victim girl that, she was subjected to sexual intercourse twice by the accused. The medical opinion of PW-6 does not rule out the possibility of the victim being subjected to sexual intercourse.

¶328

Similarly PW-8 (Doctor) who examined the accused also has stated that, he enquired the accused who told him that on the date 26-03-2015, he took the victim girl from Chikkanahalli village on a Motor cycle and after marrying her at a Temple in kattemalalavaadi village on the date 28-03-2015, he was with her till the date 03-04-2015 when the Police brought them back. The Doctor has stated that the accused also told him that, four days prior to the date of his medical Examination, without

¶329

¶330

CRL.A No. 504 of 2017

¶331

making use of the condom, twice, he had committed

¶332

sexual intercourse with the victim. The Doctor has opined that his Examination revealed that accused was fit and capable of doing sexual intercourse. Therefore, irrespective of the fact of the absence of any support from the FSL report at Ex.P-14, which speaks about the nondetection of any seminal stain and spermatozoa, still, the evidence of the victim girl, her parents and the Doctors (PW-6 and PW-8) establishes that the victim girl was subjected to sexual intercourse by the accused.

¶333

Our Hon’ble Apex Court, in the case of STATE OF

¶334

PUNJAB VS. GURMIT SINGH AND OTHERS reported in (1996) 2 Supreme Court Cases 384, was pleased to observe in paragraph 8 of its judgment as below:

¶335

" ….. ….The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before

¶336

¶337

CRL.A No. 504 of 2017

¶338

relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is

¶339

¶340

CRL.A No. 504 of 2017

¶341

improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."

¶342

In the case of Moti Lal vs. State of Madhya Pradesh reported in (2008) 11 Supreme Court Cases 20 , which was a case involving offences punishable under Sections 375, 376 and 450 of the IPC, the question of conviction on the sole testimony of prosecutrix for the alleged offences was involved. The medical evidence was not helpful to the prosecution. The Hon'ble Apex Court in paragraph 12 of its judgment reiterated its observation made in its previous judgment in the case of Om Prakash

¶343

vs. State of Uttar Pradesh reported in (2006) 9 Supreme Court Cases 787, wherein it was observed

¶344

¶345

CRL.A No. 504 of 2017

¶346

that it is a settled law that the victim of sexual assault is not treated as accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of the Doctor. In a given case, even if the Doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of prosecutrix. In a normal course, a victim of sexual assault does not like to disclose such offence even before her family members, much less before the public or before the Police. The Indian women have a tendency to conceal such offence because it involves her prestige as well as the prestige of her family.

¶347

Our Hon'ble Apex Court in the case of PHOOL SINGH VS. STATE OF MADHYA PRADESH reported in (2022) 2 Supreme Court Cases 74, has summarised the principles as to when the sole testimony of the victim/prosecutrix be taken as a basis for conviction even in the absence of corroboration. The Hon'ble Apex Court relying upon its previous judgment in the case of STATE OF PUNJAB VS. GURMIT SINGH AND OTHERS (1996) 2

¶348

¶349

CRL.A No. 504 of 2017

¶350

Supreme Court Cases 384 and analysing the facts before it, observed that the prosecutrix in the case before it had fully supported the case of the prosecution and she had been consistent right from the very beginning, nothing had been specifically pointed out as to why the sole testimony of the prosecutrix should not be believed. The Court further observed that in the case before it, even after thorough cross-examination, she had withstood by what she had stated and had fully supported the case of the prosecution. With this the Hon'ble Apex Court observed that they see no reason to doubt the credibility and/or the trustworthiness of the prosecutrix.

¶351

In view of the above judgments, since in the instant case also, the evidence of PW-2 the victim has come out in a natural manner and is reliable and trustworthy, her evidence can be believed that she was subjected to sexual intercourse by the accused more than once, which is a repetitive sexual intercourse.

¶352

As analysed above, PW-2 the victim was minor

¶353

in her age as on the date of the commission of the act of

¶354

¶355

CRL.A No. 504 of 2017

¶356

sexual intercourse by the accused upon her. As such, the act of the accused results into commission of an offence punishable under Section 6 of the POCSO Act.

¶357

The accused is also charged for the offence punishable under Section 344 of the IPC.

¶358

In order to establish the offence punishable under Section 344 of the IPC, the prosecution is required not only to prove that the victim girl was wrongfully confined by the accused, but also that the duration of such wrongful confinement was for a period of ten or more days.

¶359

In the instant case, no where it is the case of the prosecution that the victim was wrongfully confined by the accused for more than ten days. It is for the reason that even though the victim girl was kidnapped by the accused on the date 26-03-2015, however, she was found appeared before the Hunasuru Police on the date 03-04-2015. Thus, within a period of ten days, the victim girl was traced and immediately brought back to Bengaluru accompanied by her parents.

¶360

¶361

CRL.A No. 504 of 2017

¶362

Further, even according to the evidence of the victim

¶363

girl as PW-2, though she initially stated that on the date 26-03-2015, after she was made to drink juice due to which she claims to have become unconscious, and then taken to a distant place and kept in a dark room in a Temple with her hands and legs tied, however, on the date after next, i.e. on the date 28-03-2015, she had remained untied and for the whole day, she stayed with the accused in the Temple even after the accused is said to have tied a Maangalya chain (taali) around her neck. From that day, till she (victim) was brought back to Bengaluru, her own evidence shows that she was not confined by the accused, but was moving along with the accused at different places including to the Kuriroppa.

¶364

Further, no reliable evidence is forthcoming about the alleged tying of hands and legs of the victim girl and confining her in a dark room in the Temple, except the evidence of PW-2 herself. The details of the places of the rooms where she was alleged to have been confined also have not at all come in the evidence of any of the

¶365

¶366

CRL.A No. 504 of 2017

¶367

prosecution witnesses. Even the evidence of the Investigating Officer is also silent on that point. As such, not only there is the absence of evidence about the wrongful confinement of the victim girl by the accused, but also of the alleged wrongful confinement for more than ten days. As such, the prosecution has utterly failed to prove the alleged guilt of the accused for the offence punishable under Section 344 of the IPC.

¶368

The accused is also charged with the offence punishable under Section 506B of the IPC.

¶369

The evidence of PW-2 victim girl though at one place says that after she was tied with a Maangalya chain (Taali) around her neck by the accused and he committed rape upon her, and put a life threat to her, however, except a phrase in a sentence on the said aspect, there is no further evidence from any of the prosecution witnesses including the victim girl herself on the alleged act of the accused putting her a life threat. On the other hand, the analysis of the evidence of PW-2 made above has shown that, except she protesting and not consenting to the act

¶370

¶371

CRL.A No. 504 of 2017

¶372

of the accused for having sexual intercourse with her, she

¶373

has shown no resistance either in staying with him for those days or moving with him at different places. Her own evidence has shown that even while she was being taken at different places on the Motor cycle by the accused, she has not alerted the people nearby about the alleged act of the accused. Had really there been any threat to her by the accused much less life threat, then, she should have definitely alerted or alarmed the people nearby whom she had seen while moving from place to place including the people at Kuriroppa, where, even according to the victim girl, an old lady, a woman and an old man were there. Even to them also, she did not disclose about the alleged threat given, if any, by the accused to her. As such, it is highly un-safe to believe the say of the victim that there was any life threat to her by the accused.

¶374

The accused is also charged with the offence punishable under Section 201 of the IPC, alleging that he caused the evidence of the offences to disappear by

¶375

¶376

CRL.A No. 504 of 2017

¶377

throwing the rope and the knife into a river only to screen himself from the legal punishment. Even though the charge sheet made such an allegation of the accused throwing the rope and the knife into the river only to screen himself from the legal punishment and a charge to that effect was also framed against the accused, which he has denied, however, none of the thirteen (13) witnesses examined by the prosecution have whispered anything about the accused destroying any piece of evidence much less the alleged rope and the knife. Even the Investigating Officer also has nowhere stated in his evidence about the alleged destroying of evidence by the accused. Even though PW-2 (victim) has stated that her hands and legs were tied and she was confined to a room, however, she has also not stated as to with what material her hands and legs were tied. No panchanama has been made or marked by the prosecution about the spot in which the accused is said to have allegedly thrown the rope and knife into the river. In the absence of any sort of evidence, oral or documentary, it is not safe to hold that the accused has

¶378

¶379

CRL.A No. 504 of 2017

¶380

committed the alleged offence punishable under Section 201 of the IPC. Accordingly, it has to be held that the prosecution could not able to prove the alleged offence against the accused for the offence punishable under Section 201 of the IPC.

¶381

The defence of the accused throughout was that, PW-1, joined by others was playing cards, in which connection, the Police from Kallambella Police Station had summoned PW-1 and recorded his statement. In that connection, PW-1 had a grudge against the accused. Keeping the same in mind, PW-1 has lodged a false complaint against the accused. However, the said suggestions were not admitted as true by PW-1.

¶382

Suggestions were made to PW-2 (victim), PW-3 and PW-10 also to the effect that, PW-1 had enmity with accused, as such, a false case has been got registered against the accused by PW-1, however, all those witnesses denied those suggestions.

¶383

Thus, the accused, though had taken the defence of PW-1 lodging a false complaint against him, however,

¶384

¶385

CRL.A No. 504 of 2017

¶386

except making a suggestion to PW-1, PW-2, PW-3 and PW-10, nothing more could be placed from the accused’ side to believe his said defence or consider his defence as sufficient to suspect the case of the prosecution. Thus, the defence taken by the accused also, could not, in any manner, able to succeed in imbibing some doubt in the case of the prosecution.

¶387

Though the above analysis of the evidence in the matter would clearly go to show that, the prosecution has placed cogent and reliable evidence to prove the guilt against the accused for the offence punishable under Section 363 of the IPC and Section 6 of the POCSO Act, however, the Special Court, though held that the victim was proved to be a minor in her age with seventeen years, one month and six days as on the date of the alleged offence, still, it proceeded to hold that the victim girl was a consenting party. It suspected that, it is difficult to believe that when she is said to be in unconscious state, how come she travelled in a Motor cycle for such a long distance. It also suspected about her act of not

¶388

¶389

CRL.A No. 504 of 2017

¶390

alerting/alarming the people nearby in the places wherever she has been taken by the accused. With respect to other offences, it opined that there was no direct evidence to prove the said offences alleged against the accused. Consequently, it pronounced the judgment of acquittal from all the offences alleged against the accused.

¶391

Since the said finding of the Special Court in the impugned judgment now proved to be inappropriate and incorrect, in so far as it relates to the acquittal of the accused for the offence punishable under Section 6 of the POCSO Act and now it is proved beyond doubt that the accused had kidnapped the victim girl, which is punishable under Section 363 of the IPC, the impugned judgment to that extent calls for interference at the hands of this Court.

¶392

Accordingly, we proceed to pass the following:

¶393

O R D E R

¶394

[i] The Criminal Appeal stands allowed

¶395

in-part ;

¶396

¶397

CRL.A No. 504 of 2017

¶398

[ii] The impugned judgment in Special Case No.167/2015, dated 20-09-2016, passed by the learned III Additional Sessions Judge at

¶399

Tumkur and Special Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989 and Special Court for Trial of Cases under Protection of Children from Sexual Offences Act, 2012, acquitting the accused for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012, stands set aside;

¶400

The accused – Sri. Basavaraju, Son of

¶401

Lakshmaiah, 30 years, R/o. Kadavigere, Kallambella Hobli, Sira Taluk, Tumkuru – 572137, is convicted for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012;

¶402

[iii] The impugned judgment in Special Case No.167/2015, dated 20-09-2016, passed

¶403

¶404

CRL.A No. 504 of 2017

¶405

by the learned III Additional Sessions Judge at Tumkur and Special Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989 and Special Court for Trial of Cases under Protection of Children from Sexual Offences Act, 2012, which has also acquitted the accused for the offence punishable under Section 366A of the IPC, stands modified;

¶406

The accused – Sri. Basavaraju, Son of Lakshmaiah, 30 years, R/o. Kadavigere, Kallambella Hobli, Sira Taluk, Tumkuru – 572137, is convicted for the offence punishable under Section 363 of the Indian Penal Code, 1860;

¶407

[iv] The acquittal of the accused – Sri. Basavaraju, Son of Lakshmaiah, 30 years, R/o. Kadavigere, Kallambella Hobli, Sira Taluk, Tumkuru – 572137, for the offences punishable

¶408

¶409

CRL.A No. 504 of 2017

¶410

under Sections 344, 506B and 201 of the IPC,

¶411

stands confirmed;

¶412

To hear on sentence, the matter is passed over.

Sd/JUDGE

Sd/JUDGE

BMV*

CRL.A No. 504 of 2017

¶418

Dr.HBPSJ & UMBAJ:

¶419

23-01-2024

¶420

HEARING ON SENTENCE

¶421

Learned High Court Government Pleader for the appellant-State and learned counsel for the respondent (accused) are physically present in the Court.

¶422

Heard the learned counsel for the respondent (accused) and the learned High Court Government Pleader for the appellant -State, on the sentence.

¶423

Learned counsel for the respondent (accused) in his argument submitted that, the respondent/accused is a first time offender and has no criminal antecedents. He is aged only 28 years, as such, young in his age with a bright future and greater responsibility. The respondent (accused) has got his established family with dependents, as such, he has got responsibility of his family members who are dependent upon him. Learned counsel further submitted that, considering the fact that this Court has confirmed the judgment of acquittal, acquitting the accused for the other offences punishable under Sections

¶424

¶425

CRL.A No. 504 of 2017

¶426

344, 506B and 201 of the IPC, however, found guilty only for the offences punishable under Section 363 of the IPC and under Section 6 of the POCSO Act, a lenient view be taken while awarding the sentence of imprisonment.

¶427

Per contra, learned High Court Government Pleader for the appellant –State submitted that, the offence committed is against an innocent minor girl, who was a student and her life and future has been spoiled by the act of the accused. Further, the proven guilt against the accused are heinous in nature, as such, most stringent punishment that is prescribed for the proven guilt be ordered.

¶428

It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.

¶429

Considering the submission of the learned counsel for the respondent (accused) that the accused is a first time offender and has no criminal antecedents with him and that he has got dependent family members whom

¶430

¶431

CRL.A No. 504 of 2017

¶432

he has to take care of and also considering the proven guilt against the accused and the facts and circumstances of the present case and also keeping in mind all the mitigating factors canvassed by the learned counsel for the parties, we proceed to pass the following:

¶433

ORDER ON SENTENCE

¶434

[a] For the offence punishable under

¶435

Section 363 of the Indian Penal Code, 1860, the accused – Basavaraju Son of Lakshmaiah, 30 years, R/o. Kadavigere, Kallambella Hobli, Sira Taluk, Tumkuru – 572137, is sentenced to undergo Rigorous Imprisonment for a period of three years and shall also be liable to pay a fine of a sum of `5,000/- (Rupees Five Thousand Only), in default of payment of fine, he shall undergo an additional Rigorous Imprisonment for a period of two months;

¶436

[b] For the offence punishable under Section 6 of the Protection of Children from

¶437

¶438

CRL.A No. 504 of 2017

¶439

Sexual Offences Act, 2012, the accused – Basavaraju Son of Lakshmaiah, 30 years, R/o. Kadavigere, Kallambella Hobli, Sira Taluk, Tumkuru – 572137, is sentenced to undergo Rigorous Imprisonment for a period of ten years and shall also be liable to pay a fine of a sum of `40,000/- (Rupees Forty Thousand Only), in default of payment of fine, he shall undergo an additional Rigorous Imprisonment for a period of twelve months;

¶440

Both the sentences shall run concurrently;

¶441

[c] Out of the fine amount deposited, if any, by the accused, a sum of 40,000/- be paid to the victim (PW-2), as victim's compensation under Section 357 of the Code of Criminal Procedure, 1973. The remaining sum of 5,000/be paid to the State;

¶442

[d] The victim (PW-2) is also entitled for compensation under Section 357A of the Code of Criminal Procedure, 1973;

¶443

¶444

CRL.A No. 504 of 2017

¶445

[e] The District Legal Services Authority,

¶446

Tumakuru, is directed to decide the quantum of compensation payable to the victim (PW-2)

¶447

under the Scheme under Section 357A of the Code of Criminal Procedure, 1973, and to take appropriate steps for compensating the victim (PW-2) under the Scheme at the earliest, but not beyond a period of six months from the date of receipt of a copy of this judgment.

¶448

[f] The accused - Basavaraju Son of Lakshmaiah, 30 years, R/o. Kadavigere, Kallambella Hobli, Sira Taluk, Tumkuru – 572137, shall surrender before the learned III Additional Sessions Judge at Tumakuru and Special Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989 and Special Court for Trial of Cases under Protection of Children from Sexual Offences Act, 2012, within thirty (30) days from today and serve the sentence;

¶449

¶450

CRL.A No. 504 of 2017

¶451

[g] The respondent (accused) is entitled

¶452

for the benefit of set-off for the period, if any, undergone by him in Judicial Custody in the matter, under Section 428 of the Code of Criminal Procedure, 1973;

¶453

[h] The order of the Special Court with

¶454

respect to destruction of the Material Objects at MO-1 to MO-17, remains unaltered;

¶455

[i] A free copy of this judgment be

¶456

furnished to the respondent (accused), immediately by the Registry.

¶457

Registry is directed to send a copy of this judgment

¶458

to the District Legal Services Authority, Tumakuru, immediately, for doing needful in the matter.

¶459

Registry is also directed to transmit a copy of this judgment to the Special Court, forthwith along with its records, for doing the needful in the matter in securing the

¶460

¶461

CRL.A No. 504 of 2017

¶462

accused for serving the sentence and in accordance with

law.

Sd/JUDGE

Sd/JUDGE