Santosh S/O Devindra Alias Devindrappa Kamble Vs the State of Karnataka

VARUN S/O VIJAYKUMAR PATIL, AGE: 22 YEARS, OCC: AUTO DRIVER, R/O MALLABAD VILLAGE TQ. JEWARGI, DIST. KALABURAGI NOW RESIDING AT NEAR HANUMAN TEMPLE, GANGA NAGAR, KALABURAGI.

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…APPELLANT

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(BY SRI. MARTHANDAPPA MALLESHAPPA ALLUR, ADVOCATE)

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AND:

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THE STATE THROUGH JEWARGI POLICE STATION,

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DIST. KALABURAGI R/BY ADDL. SPP HIGH COURT OF KARNATAKA KALABURAGI BENCH-585107.

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…RESPONDENT

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(BY SRI. SIDDALING P. PATIL, ADDL SPP,)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C PRAYING TO ALLOW THE APPEAL AND QUASH THE IMPUGNED ORDER OF CONVICTION AND SENTENCE PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AT KALABURAGI IN SPECIAL CASE (POCSO)NO.1/2018 DATED 14.03.2019 AND ACQUIT THE APPELLANT OF ALL CHARGES.

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IN CRL.A NO. 200047 OF 2019:

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BETWEEN:

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SANTOSH S/O DEVINDRA ALIAS DEVINDRAPPA KAMBLE, AGE: 23 YEARS OCC: STUDENT, R/O KALLAHANGARGA VILLAGE TQ: JEWARGI DIST: KALABURAGI-585107

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…APPELLANT

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(BY SRI. SHIVANAND V. PATTANASHETTI, AND SRI. SHIVAPUTRA S. UDBALKAR, ADVOCATES)

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AND:

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THE STATE OF KARNATAKA R/BY ADDL. SPP HIGH COURT OF KARNATAKA KALABURAGI BENCH-585107 (THROUGH JEWARGI P.S.) DIST: KALABURAGI-585103

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…RESPONDENT

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(BY SRI. SIDDALING P PATIL, ADDL SPP,)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374

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(2) OF CR.P.C PRAYING TO ADMIT THIS APPEAL AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 14.03.2019 PASSED BY THE II ADDL. SESSIONS JUDGE, AT KALABURAGI IN SPECIAL CASE (POCSO) NO.01/2018 AND ACQUIT THE APPELLANT / ACCUSED NO.2, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(N)(I) AND 366-A OF IPC READ WITH 17 OF POCSO ACT.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K NATARAJAN)

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These appeals are filed by the appellants – accused Nos.1 and 2 for setting aside the judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Kalaburagi in Special Case (POCSO) No.1/2018 dated 14.03.2019.

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Heard the learned counsel for the appellants

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and the learned Addl. SPP. for the respondent – State.

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The ranks of the parties before the Trial Court is

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referred for the sake of convenience.

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The case of the prosecution is that the Jewargi police have filed the charge-sheet against the accused persons for the offences punishable under Section 366 (A), 376 (2) (n) (i) and 109 read with Section 34 of IPC and under Sections 4, 6 and 17 of the POCSO Act, 2012. It is

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alleged that on 06.08.2017 at 09.30 a.m. the accused No.2 said to be teasing the victim girl expressing his love towards her, induced and later he took her to Jewargi. Thereafter, took her to supermarket at Kalaburagi and then taken her to Sharanabasaveshwar Temple, stayed in a rented house and said to be committed sexual assault on the victim. Thereafter, accused No.1 also said to be taken the victim girl, kept in the rented house at Krishna Colony and thereafter in Dubai Colony and committed sexual assault on her. Subsequently, the police apprehended the accused persons and rescued the victim girl and registered the case. After investigation, the police have filed the charge-sheet. The accused Nos.1 and 2 have been arrested and they have been remanded to judicial custody.

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After filing of the charge-sheet, the learned Special Court took the cognizance for the above said offences, secured the presence of the accused, who were in judicial custody and framed the charges of the alleged offences. The accused person denied the charges and

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claimed to be trial. Accordingly, the prosecution called upon to adduce the evidence. The prosecution in support of its case in all examined 19 witnesses and got marked Ex.P.1 to 25 documents and M.Os.No.1 to 7.

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After closing the evidence of the prosecution witnesses, the learned Sessions Judge read-over the incriminating evidence of material witnesses to the accused as contemplated under Section 313 of Cr.P.C. The case of the accused person is one of total denial, but not lead any defence evidence, except cross-examining the prosecution witnesses.

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After hearing the arguments, the Trial Court found the accused Nos.1 and 2 as guilty and convicted and sentenced to undergo rigorous imprisonment for life and fine of Rs.1,00,000/- each for the offences punishable under Sections 376 (2) (n) (i) of IPC and Sections 6 POCSO Act, with default sentence and further sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1,00,000/- for the offence punishable under Section

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366 (A) of IPC read with Section 17 of the POCSO Act with default sentence. It is further held that all the sentences shall run concurrently. The Trial Court also granted compensation of Rs.5,00,000/- to the victim girl payable by the DLSA.

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Feeling aggrieved by the judgment of conviction and order of sentence, the accused Nos.1 and 2 are before this Court in these two appeals.

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The learned counsel for the appellants strenuously contended that the Trial Court committed error in convicting the appellants and sentenced them to undergo imprisonment for life as well as imprisonment for 10 years. The prosecution utterly failed to prove the abduction of the victim girl to Kalaburagi. The victim has stated that she has traveled along with accused No.2 in the motorcycle, whereas the victim was stated in the statement under Section 164 of Cr.P.C. that she came by bus and the victim girl not stated anything about the sexual assault by the accused No.2 or accused No.1 in the

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statement under Section 164 of Cr.P.C., whereas she has stated before the doctor in the medical examination that

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she has eloped with the accused No.1 and married at Gattaragi Bhagamma Temple. They stayed together as husband and wife and she has led the life with accused No.1. The evidence of the doctor as well as statement made by her under Section 164 of Cr.P.C. is not properly appreciated by the Trial Court and jumped into conclusion in convicting the accused persons. The learned counsel for the appellants also contended that the age of the victim is also not proved by the prosecution in accordance with law.

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The documents produced by the prosecution that is transfer certificate of 7^th standard wherein it is shown that she was aged about 16 years, whereas the doctor’s evidence shows that she was 18 years old. As per the Juvenile Justice Rules, the age of the victim was not proved by the prosecution as required under Section 33 of the POCSO Act. Therefore, holding the victim girl as minor, is not correct. She is aged about more than 18 years. She has stayed with accused No.1 and led the life as husband

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and wife for 02 months. There is no complaint made to either the landlord in both the houses and also made an attempt to escape from accused persons. The very contradictory evidence of the PW.1 in the examination-inchief and statement under Section 164 of Cr.P.C., there is inconsistency in her evidence, as she has not stated anything about the sexual assault by the accused No.2 in the statement under Section 164 of Cr.P.C., whereas she has stated in the evidence that the accused No.2 also committed sexual assault on her. Therefore, the evidence of the PW.1 is insufficient and not trustworthy to believe her version.

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The learned counsel further contended that the PW.3 – sister of the victim girl was also examined before the Court, as she was said to be left by the accused No.2 at Farathabad at relative house, but no relatives from Farathabad has been examined by the prosecution to show that PW.3 has been came along with PW.1 and left in Faratabad and she went to the relatives house. Therefore,

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the evidence of the PW.3 is not sufficient to prove the guilt of the accused No.2 for abducting the PW.1 in his motorcycle. There are no other witnesses supporting the prosecution case. There is no recent sexual intercourse on the victim girl. As per the medical record there is no seminal stains found. Therefore, there is no corroborative medical evidence to prove the guilt of the accused persons. Therefore, prayed for setting aside the judgment of conviction and order of sentence passed by the Trial Court.

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Per contra, the learned Addl. SPP. for the respondent - State supported the judgment of sentence passed by the Trial Court contending that PW.1 though not stated before the Magistrate in the statement recorded under Section 164 of Cr.P.C. but she has given the evidence before the Court that the accused Nos.1 and 2 committed the offence of sexual assault by both the accused together in different types. The medical records are not able to secure, as there was a delay in examining

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the victim by the doctors. The evidence of PW.1 and PW.3 corroborates each other that the accused No.2 came to the village and took the victim girl along with PW.3 in the motorcycle. Thereafter, they went to the Farathabad and asked the PW.3 to go to their relatives house and took the victim girl to Kalaburagi. Thereafter, accused No.2 has handed over the PW-1 to the accused No.1 and in turn accused No.1 accommodated the victim girl in the rented house at Krishna Colony. Thereafter, brought her to Dubai colony and made sexual assault on the victim girl. She was a minor even if she has consented, which attract Sections 366(A) or 376 of IPC. Therefore, considering the evidence on record, the Trial Court rightly held the guilt of the accused persons. There is nothing to interfere in the judgment of conviction and order of sentence. Hence, prayed for dismissing the appeal.

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Having heard the arguments and perused the records, the points that would arises for our consideration are as under:-

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i) Whether the prosecution proves beyond all reasonable doubt that on 06.08.2017 at 12:30 p.m. the accused No.2 abducted the victim girl – PW.1 and forced her to sexual intercourse with accused No.1, thereby he has committed the offence punishable under Section 366 (A) of IPC?

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ii) Whether prosecution proves beyond all reasonable doubt that the accused No.1 took the victim girl along with him and kept in the Krishna Colony and Dubai Colony and sexually assaulted her repeatedly and she is being a minor girl below the age of 18 years, thereby committed offence punishable under Section 376 (2) (n) (i) of IPC read with Sections 6 and 17 of POCSO Act?

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iii) Whether the judgment of conviction and order of sentence call for any interference?

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Before going to appreciate the evidence on record, it is worth to mention the evidence adduced by the prosecution before the Trial Court. The prosecution in all examined 19 witnesses.

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The PW.1 – victim girl, she has given evidence before the Trial Court deposing that her age was below 16 years and she is staying with her parents along with her

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sisters and she was came in contact with accused No.2, whenever he came to the village for attending fairs and she was acquainted with him. On that background, on 06.08.2017 the accused No.2 came to the house of victim girl and told that her father asked to come along with him for want to go to the Kalaburagi, wherein her mother was fell ill-well and admitted to hospital at Kalaburagi. Believing the words of accused No.2, herself and her sister PW.3 – Jyoti boarded on the motorcycle of accused No.2 and on the way, the accused No.2 stopped the vehicle at Farathabad and told her to go to her uncle’s house. Accordingly, the accused No.2 took the victim girl to Kalaburagi at 06.00 p.m. and after wondering in Kalaburagi, they went to stay in the night behind the Sharanabasaveshwar Temple. In the midnight, he said to be committed sexual intercourse with her. In the morning the accused No.1 came in the auto-rickshaw and then accused No.2 took her to a house at Krishna Colony and they were stayed for sometime. Thereafter, in the night the accused No.2 said to be sexual intercourse with her. In

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the morning the accused No.1 used to go to take the autorickshaw and accused No.2 used to sexual assault with her. Both of them said to be committed sexual assault on her for one and another in different times in the absence of other accused.

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The evidence of the victim would be appreciated after verifying the evidence of the prosecution witnesses.

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PW-2, the father of the victim, deposed that he filed a missing complaint with the police after came to know that his daughter was not at home and learning that accused No.2 had taken her to Kalaburagi. By receiving the complaint, the police registered the case and rescued the daughter and arrested the accused in Aland Colony, Kalaburagi.

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PW-3, Jyothi, the sister of the victim, deposed that about 10 months prior, when their parents were in Kalaburagi for treatment, she and the victim were alone at home. Accused No.2 came and informed them that their mother was seriously ill and their father had asked him to

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bring them. She and the victim were accompanied accused No.2 on his motorbike. At Farhatabad, accused No.2 asked PW-3 to get down from the bike, stating he and the victim would return later. PW-3 went to her aunt’s house in Farhatabad. That night, when her father arrived, the victim had not returned. PW-3 narrated the incident to her father and they searched for the victim for 4 to 5 days and thereafter, her father lodged a complaint. She further deposed that, two months later, the victim was rescued by the police, who stated that accused Nos.1 and 2 took her to Kalaburagi, kept her in a room, tied her hands, and committed rape on her.

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PW-4, Shivappa, a circumstantial witness,

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deposed that about one year ago, at around 9:00 AM, while he was near a well to fetch water, he saw the victim with accused No.2 on a motorbike heading toward Jewargi. That evening, when the victim’s father returned and was searching for her, PW-4 informed him that she had gone with accused No.2 towards Jewaragi. Two months later, the victim was traced.

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PW-5, Dr. Priyam Gar, medical witness who examined the victim on 11.10.2017 in the hospital stated that the victim, aged about 17 years and studied 10^th standard, the victim said to have told that she knew accused No.1 and had a love affair with him. They used to meet in Kalaburagi and she eloped with him willingly on 23.08.2017. They went to Ghattaragi Bhagamma temple, Afzalpur Taluk, Kalaburagi District, got married and returned to Kalaburagi on 24.08.2017, staying together in a room at Krishna Colony. They had consensual sexual intercourse and later moved to Aland Colony on

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01.10.2017 and stayed together.

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PW-5 further deposed that she found no external injuries on the victim’s body or inner thighs. The victim was mentally and physically stable, with well-developed secondary sexual characteristics. External genitalia were normal. PW-5 collected cervical and vaginal swabs, smears and the victim’s dupatta, salwar kameez and pubic hair for FSL examination, along with a pregnancy test, which was

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negative. She examined MO Nos. 1 to 12 and issued a final opinion as per Ex.P-7, which revealed that no seminal stain was detected in article Nos.1, 2, 5, 6, 7, 8, 9, 10, 11 and 12, no spermatozoa was detected in article Nos.3 and 4 and no blood stains are detected in article Nos.10 to 12. Based on opinions from a dentist and radiologist, the victim’s age was estimated to be between 17 and 18 years. There was no evidence of recent sexual intercourse, the presence of seminal stains will stay within 48 to 72 hours, which could be absent if washed. The evidence of the doctor reveals that there is no recent sexual intercourse. No incriminating material found on the victim and accused cloths.

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The prosecution did not cross-examine PW-5 regarding her evidence, particularly the victim’s statement to the doctor that she eloped with accused No.1 and married him at Ghattaragi Bhagamma temple and lived with him as husband and wife and having consensual sexual intercourse.

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PW-6, Bhagyawant, the landlord of the house at Dubai colony, deposed that accused No.1 and the victim stayed for 15 days in his house in Dubai Colony about one year ago. Accused No.1 had approached him seeking a rental house, claiming the victim was his relative and providing a mobile contact number. Later, the police arrived and took both the accused and the victim. The accused did not seriously dispute his evidence except denial.

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PW-7, Sunil Kumar, deposed that about one year ago in Dubai Colony, near Veerendra Patil’s house and the police drew a Panchanama as per Ex. P-8. There is no serious dispute regarding this Panchanama. Another Panchanama was drawn as per Ex. P-9, but PW-8, Hanumanth, a panch witness stated in cross-examination that he did not remember the date of the mahazar.

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PW-9, Mallappa, a panch witness called by the police for seizure of materials, turned hostile. MO Nos. 1 to 4, seized by the police, revealed no incriminating evidence, rendering them unhelpful to the prosecution’s case.

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PW-10, Shankarling, a panch witness to Ex. P- 11, deposed regarding the seizure of the accused’s clothes. This evidence is not seriously disputed and no incrementing material found in the clothes of the accused.

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PW-11, Dr. Nikhilnag, examined accused No.1 and deposed that he was not impotent and was capable of having sexual intercourse, as per Ex. P-12. This evidence is not seriously disputed.

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PW-12, Tajmul Hussain, an Assistant Engineer, prepared a spot sketch as per Ex. P-13 in Dubai Colony at the police’s direction. He is a formal witness.

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PW-13, Girish, a panch witness to the seizure of MO Nos. 1 to 4, also turned hostile. The materials, sent for medical examination, revealed no incriminating evidence, making this evidence unhelpful to the prosecution.

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PW-14, Chandrashekhara, headmaster of the school where the victim studied, deposed that on 16.10.2017, the police requested the admission register.

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He issued a school certificate as per Ex. P-14, stating the victim’s date of birth as 03.10.2001, based on the original register, as per Ex. P-15. In cross-examination, he admitted that no birth certificate was provided by the parents at the time of admission and no transfer certificate was given to the police. The prosecution did not produce a birth certificate obtaining from a hospital or other material to confirm the date of birth. The victim was in 7^th standard as per the certificate. This evidence will be discussed in the later part of the judgment.

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PW-15, Jyoti, deposed that she recorded the victim’s statement at the police station and handed it to the PSI. She stated that she recorded it as narrated by the victim, but could not remember the date or time of the recording.

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PW-16, Harishchandra, a panch witness to Ex. P- 11, deposed regarding the seizure of the pant and shirt of accused No.1, marked as MO Nos. 5 to 7. These materials were seized by the police and sent to the FSL, but nothing incriminating was found on them.

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PW-17, Manjunatha, PSI, deposed that on 13.09.2017, while he was the SHO at Jewargi Police Station, PW-2 filed a complaint. He registered an FIR in Crime No. 255/2017 and forwarded it to the Court as per Ex. P-16. He visited the spot and prepared a spot panchanama as per Ex. P-9. On 11.10.2017, along with WHC Nirmala and PC Mallikarjuna, he produced the victim before the Court at 5:00 AM. He sent a requisition to the Court to add Section 376(2)(n) of IPC and Sections 4 and 6 of the POCSO Act. He sent the victim for medical examination with a constable and handed over the investigation to the Police Inspector. He took photographs as per Ex. P-18, initiating the case. After producing the victim, he again requested the court to add Section 376(2)(n) of IPC and Sections 4 and 6 of the POCSO Act.

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PW-18, Hussain, Circle Inspector of Police, was the investigating officer who conducted part of the investigation and handed over the case to PW-19. PW-19, Dhruvaraja, received the records and FSL report and filed the chargesheet.

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On careful examination of the evidence of all the witnesses, except PW-1, PW-2, PW-3, PW-4 and PW-14, other witnesses are formal witnesses.

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On perusing the evidence of PW-1, the victim,

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she deposed that she was acquainted with accused No.2, who frequently teased her. On 06.08.2017, accused No. 2, Santosh, came to her house and told her that her father had asked him to bring her to a hospital in Kalaburagi. She, along with PW-3, went with accused No.2 on his motorcycle. Near Farhatabad, accused No.2 asked PW-3 to get down and go to her relative’s house in Farhatabad. The victim and accused No.2 then proceeded to Kalaburagi, wandered until about 6:00 PM, and went to Sharanabasaveshwara Temple. They stayed in a school next to the temple, during the night, accused No. 2 allegedly closed her mouth and had sexual intercourse with her.

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PW-1 further deposed that the next morning, at about 8:00 AM, accused No.2 called accused No.1, Varun, who arrived at the spot. By 8:30 AM, accused No.1 took her in an autorickshaw along with accused No.2 to a house where they stayed for two months. Accused No.2 allegedly continued to trouble her, sexually assaulted her and burned her with a cigarette. She stated that accused No.2 raped her at night. Accused No. 1, who stayed in the same room, also allegedly committed rape on her. Both accused kept her in a locked room and refused her requests to contact her mother, continuing to rape her.

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In cross-examination, the counsel for accused No.1 elicited that PW-1 had given a statement under Section 164 of Cr.P.C. before a Magistrate, marked as Ex. P-1. PW-1 stated she did not know the contents of that statement. The accused’s counsel brought to the Court’s attention that, per Ex.P-1, PW-1 had stated that on a Sunday around 9:00 AM, accused No.2 telephoned her and asked her to come to Jewargi bus stand and she went

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thier. They traveled to Kalaburagi by bus, went to a hotel, where accused No.2 informed his love, which she refused. He slapped her 2-3 times and they went to Shivaji Nagar and supermarket area by bus. There, she met accused No.1, Varun and told him she wanted to die. Accused No.1 consoled her, took her to a friend’s house near a naka, and they stayed there.

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PW-1’s statement under Section 164 of Cr.P.C. in Ex. P-1 further noted that the next day, accused No.1 took her to a rented house in Krishna Colony. They went to Ghattaragi Bhagamma temple, got married, and returned to Kalaburagi, staying together for two months. They later shifted to another rented house. She told accused No.1 that she was 18 years old and they lived as husband and wife. After two months, she called her mother and 4-5 days later, the police took her and accused No. 1 to the police station.

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When confronted with Ex.P-1, PW-1 at one point admitted to the statement given to the Magistrate but later claimed she did not remember it, except for admitting she resided with accused No.1 in Krishna Colony and Dubai Colony. She also stated that accused No. 2 sexually assaulted her in the presence of accused No. 1 and demanded a ransom of Rs. 5,00,000/- from her parents for her release. However, she clarified in crossexamination that she did not tell the police that accused No.1 committed sexual intercourse in the presence of accused No.2.

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On perusal of the cross-examination by counsel for accused Nos.1 and 2, PW-1 contradicted her examination-in-chief, giving evidence favorable to the accused. In her examination-in-chief, she supported the prosecution’s case, but in cross-examination, she denied giving certain statements to the police.

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The evidence of PW-1 shows contradictions between her examination-in-chief, cross-examination and her statement under Section 164 of Cr.P.C. In Ex.P-1, she stated that accused No.2 took her to Kalaburagi, where she met accused No.1. They stayed in a house and the next day, she and accused No. 1 went to Ghattaragi Bhagamma temple and got married and lived in Krishna Colony for two months, then in Dubai Colony for 15 days as husband and wife.

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This part of the Section 164 statement

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corroborates the evidence of PW-5, the doctor, who deposed that during the victim’s medical examination, the victim stated that she eloped with accused No. 1, married him on 23.08.2017 and got married at Ghattaragi Bhagamma temple, returned to Kalaburagi, stayed in Krishna Colony and had consensual intercourse. They later moved to Aland Colony, Kalaburagi. The evidence of PW-5 and Ex. P-1, confirming PW-1’s statement to the

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Magistrate that she eloped with accused No.1, married him

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and lived as husband and wife for two months in Krishna Colony and 15 days in Dubai Colony, with consensual intercourse after stating she was 18 years old. The evidence of PW-1 is fully improvement without any previous statement before the Magistrate under Section 164 of Cr.P.C.

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Regarding the victim’s age, PW-5 and the dentist estimated it between 17 and 18 years, while PW-14, the headmaster, stated it was 16 years as per Ex.P-14, based on a school certificate indicating she was in 7th standard. No birth certificate was produced. In this regard, reference is made to the judgment of this Court in Crl.A. No. 200101/2019 dated 25.03.2015 in the case of Chandrakanta Alias Kantu v. State of Karnataka and

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Others. Paragraph No.30 of the said judgment reads as under:

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“30. As regards the age of the victim is concerned, we have already discussed above in the evidence of PW.3, she has stated as per the Dentist, her age was 15-16 years and as per the medical examination report she was below the age of 18 years and as per the evidence of Head Master, she was 13 years. There is inconsistency in proving the age of the victim. However, it is stated that she was below the age of 18 years and the same was not seriously disputed by producing any rebuttal evidence. Of course the Co-ordinate bench of this Court has held in the case of State of Karnataka Vs. Amar @ Amarnatha in Criminal Appeal No.1827/2018, wherein at paragraph No.13 of the relied upon the judgment of the Hon'ble Apex Court in the case of Mahadeo Vs. State of Maharashtra and Another, in respect of the age of juvenile in conflict with law under Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007, where the matriculation or equivalent certificates, if available that should be considered as age of the victim and if birth certificate is produced that shall be considered as age of the victim, in the absence of any other documents, the age of the victim can be considered. Another judgment of the same Coordinate bench in the case of State of Karnataka

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Vs. Ramesh, based on the same has upheld the acquittal of the accused for the offence punishable under Section 376 of IPC and POCSO Act. In view of the same.

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we are of the view that the prosecution has failed to prove the age of the victim is below 18 years, except the oral statement, and failed to prove by producing the birth certificate and admission certificate of first standard of the victim. Hence, we are of the opinion that the age of the victim was also not proved that she was minor at the time of incident.”

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In this case, the evidence of PW-14 is insufficient

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to prove that the victim’s age was below 18 years, as per the judgment of this Court. The prosecution failed to establish the victim’s age as below 18 years, and no birth certificate was produced. The school certificate for her admission to the first standard was also not submitted to

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confirm her age as 18 years. According to the victim’s own evidence, she is aged more than 18 years.

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Considering the victim’s age as 18 years and the facts of the case that accused No.2 telephoned her and she went to the Jewargi bus stand, accompanied accused No.2 on a KSRTC bus, and thereafter met accused No.1. They went together to Ghattaragi Bhagamma temple, got married, stayed as husband and wife and had sexual intercourse. This indicates that the victim was a consenting party, aged more than 18 years and not below 18 years, negating the applicability of Section 366A of IPC for abduction by accused No.2 or the claim that accused No.1 committed sexual assault on the victim for two months in Krishna Colony and Dubai Colony.

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It is the opinion of this Court that the victim’s evidence is inconsistent and varies at different stages, rendering it untrustworthy to believe her version that the accused persons committed rape one after another in the absence of each other. Her evidence is also insufficient to hold accused Nos. 1 and 2 have committed the offence, as it shows she was a consenting party, having married accused No.1 and lived with him as husband and wife.

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The accused No. 1 married the victim, who was above 18 years, the question of sexual assault without consent does not arise. Consequently, it cannot be said that the accused committed any offence under Section 376 of IPC or Sections 6 and 17 of the POCSO Act. The victim was residing with accused No.1 as husband and wife, so it cannot be said that the accused detained the victim.

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The evidence of PW-3 stated that she accompanied accused No. 2 on a motorcycle and was dropped off by accused No.2 to go to her aunt’s or uncle’s house. However, the police did not record statements from the victim’s aunt or uncle to confirm that PW-3 actually accompanied accused No.2 along with the victim on the motorcycle. Therefore, her evidence is insufficient to establish that accused No.2 abducted the victim to attract the offence under Section 366A of IPC.

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The medical evidence does not support the prosecution’s case, as there were no seminal stains on the clothes of the accused or the victim and as per the evidence of PW-5, there was no recent intercourse with

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the victim and there is no external or internal injury on the body of the victim girl and accused. Without corroborating evidence, the prosecution has failed to prove the guilt of the accused for the offence punishable under Sections 376 or 366A of IPC or Sections 6 or 17 of the POCSO Act.

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Therefore, we answered point Nos. 1 and 2 in the negative.

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Regarding the judgment of the Trial Court, it relied solely on the examination-in-chief of PW-1, ignoring her cross-examination and Ex.P-1 (statement under Section 164 of Cr.P.C.) and the evidence of the doctor (PW-5), who deposed the victim’s history as narrated to her. The Trial Court erroneously concluded that the prosecution proved the case beyond reasonable doubt, which is incorrect.

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Therefore, the judgment of Trial Court of conviction warrants interference, and the appellants are entitled to acquittal.

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Accordingly, we proceed to pass the following order:

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ORDER

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i) Both the appeals are allowed.

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ii) Judgment of conviction and sentence passed in Special case (POCSO) No.01/2018 dated 14.03.2019 passed by II Addl. Sessions Judge, Kalaburagi is hereby set aside. Both the appellants are acquitted for the charges leveled against them.

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iii) Accused No.2 is already enlarged on bail. Hence, his bail bonds stand cancelled. Any fine amount deposited by the accused No.2 shall be refunded.

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iv) Accused No.1 is in custody and he is ordered to be set at liberty forthwith, if he is not required for any other case.

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