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Karnataka High Court

Nagappa @ Nagaraj vs The State Of Karnataka on 1 September, 2020

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

           IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

  DATED THIS THE 01ST DAY OF SEPTEMBER, 2020

                        BEFORE

 THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

           CRIMINAL APPEAL NO.200080/2018

Between:

Nagappa @ Nagaraj
S/o Mudirangappa Shakhe (Namali),
Aged about 43 years,
Occ. Agriculture, R/o Hemanoor, Tq. Surpur
Dist. Yadgir-585229
                                              ... Appellant
(By Sri Baburao Mangane, Advocate)

And:

The State of Karnataka through
Shorapur Police Station
Tq.Shorapur, Dist. Yadgiri
Represented by Addl. SPP.
High Court of Karnataka
Bench at Kalaburagi.
                                             ... Respondent
(By Sri Gururaj Hasilakar, HCGP)

     This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure praying to allow the appeal
and to set aside the judgment and order passed by the
Hon'ble Sessions Judge at Yadgiri in Special Case (POCSO)
No.55/2017 dated 15.03.2018 and acquit the appellant for
                              2


the offences punishable under Section 18 of Protection of
Children from Sexual Offences Act, 2012.

      This appeal coming on for dictating judgment this day,
the Court delivered the following:

                       JUDGMENT

The above appeal is filed challenging the judgment of conviction and order on sentence dated 15.03.2018 passed in Special Case (POCSO) No.55/2017 by the Court of the Sessions Judge, Yadgiri.

2. The brief facts of the case are as follows ;- On 09.01.2017 at about 10.00 a.m. when the victim was proceeding to school by walk and when she reached near Basavanna Temple at Hemanoor village, the appellant/accused came on a motorcycle bearing Reg.No.KA-33-9002 and told the victim that her father had suffered snake bite and made the victim to sit on his motorcycle by saying that he would take her to the house but the appellant/accused without taking the victim to her house had taken to the land of PW.7 and it 3 was questioned and objected by the victim but forcibly had taken the victim to the land of PW.7, in the midst of Jawar crop the appellant/accused had tied hands and legs of the victim with odni of the victim and made her to fall on the ground and when he was attempting to commit rape, the victim had screamed and upon hearing the scream the PW.7 had been to the place where the scream was found and PW.7 and upon seeing the PW.7 is coming to the place, the appellant/accused had left the victim and ran away and the time was at morning 10.30 a.m. and when the victim was crying by sitting on the land, the PW.7 had enquired what has been happened and the victim had narrated the incident to him and then the incident was told to her parents and therefore first information statement was lodged before the police and accordingly the police have registered the crime as Crime No.8/2017 for the offences under Sections 366-A, 376 and 511 of Indian Penal Code (IPC) and Section 8 of the Protection of 4 Children from Sexual Offences Act, 2012 (POCSO Act) as against the appellant/accused.

3. Upon registration of crime, the police have started investigation and the Investigation Officer after collecting all the evidences and after completion of investigation filed charge sheet against the appellant before the Court for the offences punishable under Sections 366-A, 376, 511 of IPC and Section 4 and 18 of POCSO Act.

4. The Sessions Court after filing of charge sheet had framed the charge against the appellant/accused for the offences punishable under Sections 366-A, 376 and 511 of IPC and Sections 4 and 18 of POCSO Act. Upon reading over and explained the charge to the appellant/accused, he pleaded not guilty and claims to be tried and accordingly by recording his plea the Sessions Court has proceeded with trial. 5

5. During the trial the prosecution has got examined totally 15 witnesses as PWs.1 to 15 and got marked documents as Exs.P.1 to P.15 and got marked the material objects M.Os.1 and 2.

6. After completion of the prosecution side evidences, the incriminating evidences and circumstances were put to the appellant/accused by examining the appellant/accused under Section 313 of Cr.P.C and he has denied all the incriminating evidences and circumstances. The appellant did not choose to lead defence evidence and it is simply denial of the case by the appellant/accused. The appellant/ accused completely denied the prosecution case.

7. After appreciating the evidences on record, the learned Sessions Judge has held the appellant/accused is guilty of the offence punishable under Section 18 of the POCSO Act and passed order on sentence for the offence under Section 18 of the POCSO 6 Act directing the appellant/accused to undergo simple imprisonment for a period of five years and to pay a fine of Rs.50,000/- with default clause, if he fails to pay fine amount then he shall undergo simple imprisonment for a period of six months. Therefore, the learned Sessions Judge has only convicted the appellant/accused for the offence under Section 18 of the POCSO Act as described above and has not convicted and not passed order on sentence for any other offences.

8. Being aggrieved by the said judgment of conviction and order on sentence as recorded above by the learned Sessions Judge, the accused/appellant preferred the present appeal urging various grounds inter alia contending as follows :-

• There is delay in lodging the complaint before the police even though as per the prosecution case the offence was taken place on 09.01.2017 but the complaint was lodged on 12.01.2017 but for this there is no proper explanation by the prosecution.
7
• Further raised a ground that there is full of contradictions from each of the witnesses and therefore rending the prosecution case unbelievable.
• Further raised a ground that there are no evidences made out to attract the offence under Sections 376 and 511 of IPC and there are no evidences are revealed to prove the offence under Section 4 and 18 of the POCSO Act.
• Further raised a ground that PW.7 is the important witness in the case who is stated to be the owner of the land on whose land the alleged offence was taken place as per charge sheet materials but this witness turned hostile and did not support the case of the prosecution. Therefore, there are no corroborative, thus rendering the prosecution case is unbelievable.
• Further raised a ground that evidences of panch witnesses are also not found to be believable.
• PW.2 is the mother of the victim girl and there are full of contradictions and omissions in her evidence. Therefore, her evidence is not found to be believable. Further the evidence of the victim is 8 also found to be full of contradictions and omissions and her evidence is not found to be believable.
• Further raised a ground that PW.11 is the Investigating officer had stated that he has not sent the victim-girl to the Magistrate for recording evidence under Section 164 of Cr.P.C and has not seized towel and also has not observed any sign of struggle at the place of incident.
• Further raised a ground that the evidence as stated by the victim cannot be found to be believable as she has deposed but the Special Court has wrongly relied on the evidence of this victim.
• Further it is urged that the Special Court has not appreciated the evidence on record properly rendering unjustifiable order on sentence. Therefore on these grounds urged in the appeal memorandum prays to allow the appeal and acquit the appellant/accused for the offences as alleged against him.
9

9. I have heard the arguments from the learned counsel for the appellant/accused and the learned High Court Government Pleader and carefully perused the evidences on record and other materials.

10. Submission of the learned counsel for the appellant/accused :-

i) The learned counsel for the appellant/accused submitted that there is delay in lodging the complaint as in the complaint. It is alleged that the offence was taken place on 09.01.2017 but the complaint was lodged on 12.01.2017 for which there is no explanation from the prosecution and thus it goes to the very core of prosecution case in rendering the prosecution case is unbelievable. Therefore, submitted that for the enmity with the appellant/accused after due deliberation the parents of the victim have used the victim and lodged a false complaint against the appellant/accused.

10

ii) Further submitted that the evidence of the victim is found to be unbelievable as there are full of contradictions and omissions since in the complaint the victim had stated that odni was used for tying her hands and legs but in the course of evidence she has stated that by towel her hands and legs were tied. Therefore, in this regard there is material contradictions are revealed and PW.11 the Investigating Officer had stated that he has not seized and recovered towel therefore it goes to the very core of the prosecution case in doubting the prosecution case regarding the genesis of the crime.

iii) Further submitted that even though the prosecution case is believed, at the most it is constituting of preparation of committing the crime but not attempt by the appellant/accused. Therefore for just preparedness of commission of crime is not punishable. Therefore, submitted in this regard, the Special Court has not appreciated the evidences on record properly 11 but wrongly held that the appellant/accused has attempted to do the crime. Therefore, submitted at length that there is a difference between preparation to do the crime and attempt to commit the crime. Therefore, submitted that for only making preparation is not the offence punishable, hence prayed to set aside the judgment of conviction and order on sentence.

iv) Further submitted that upon considering the cumulative effect of the evidences of the prosecution witnesses and if they are properly analyzed then it negates the prosecution case. Therefore, the Special Court has not appreciated the evidences on record properly. Further alternatively submitted that even though this court holds that the appellant/accused has committed the offences as alleged but it is not attempt to commit rape but at the most the offence attracts in the present case against the appellant is that, the appellant/accused has committed the offence of outraging the modesty of the victim. Therefore, 12 submitted even if it is held that the appellant/accused is guilty of the offences as alleged outraging the modesty of woman attracting the offence under Section 354 of IPC but certainly not the offence under Sections 376 r/w 511 of IPC. In this regard the learned counsel for the appellant/accused relied on the judgments of the Hon'ble Apex Court and the Bombay High Court, which would be discussed in succeeding paragraphs.

v) Further submitted that there are various omissions are revealed from the evidences of PWs.1 and 2 as it is proved from the evidence of PW.14. Therefore, these witnesses have stated improved versions and amounting to embellishment. Therefore, rendering the evidences of PWs.1 and 2 are unbelievable and if the evidences of these two witnesses are kept aside then absolutely there are no evidences for the prosecution as against the appellant. Therefore, submitted the evidences of PWs.1 and 2 are not found to be believable. 13

vi) Further submitted that even though the Special Court had framed charges against the appellant/accused for the offences under Section 366-A, 376 and 511 of IPC and Section 4 and 18 of the POCSO Act but the Special Court has only convicted the appellant/accused for the offence under Section 18 of the POCSO Act but which itself is not substantive offence and therefore it is categorically finding of the Special Court that the appellant/accused had attempted to do the crime but failed to hold which is substantive offence the appellant/accused has committed. Therefore, conviction recorded against the appellant/accused and punishment of sentence prescribed is vague one. Therefore, submitted that the prosecution has no definite case to show that the offence is committed by the appellant/accused. Therefore under these circumstances the benefit of doubt must be certainly extended in favour of the appellant/accused but without doing so the Special 14 Court has committed error. Therefore, prayed to allow the appeal and set-aside the judgment of conviction and order on sentence and set free the appellant/accused.

11. Contentions of learned High Court Government Pleader:

Learned High Court Government Pleader submitted that the prosecution has placed reliable and cogent evidences before the Trial Court to prove the guilt of the appellant and the said court had rightly appreciated the evidence on record and came to conclusion that the appellant has committed offence as alleged. Therefore, submitted that there is no need to interfere with the judgment of conviction and order of sentence. Further submitted that even though there may be omissions are revealed, but in every case the contradictions and omissions are revealed as usual the same is happened in the present case but which do not affect core of the prosecution case. Therefore, whatever there may be are trivial in nature and that can be 15 ignored. Further submitted that the cumulative effect of the evidences as produced by the prosecution goes to prove that the appellant has committed the offence alleged and has rightly convicted the appellant. Further submitted that the finding of the Special Court that the appellant has committed offence of attempting to commit rape and thus it is rightly held that the appellant has committed the offence of attempt to commit rape even though the Special Court had not recorded the conviction under Section 376/511 of IPC but recording of conviction under Section 18 of the POCSO Act is correct, legal and justifiable and there is no need to interfere with the judgment of conviction and order of sentence. Further submitted that the prosecution is able to prove the guilt of the appellant for the offence of attempting to commit rape and it is not just outraging the modesty of the victim and therefore it is proved that the appellant has committed offence of higher degree. Therefore, prays not to modify the 16 conviction and sentence to a lower degree. Therefore, for these reasons and submission the learned High Court Government Pleader prays to dismiss the appeal.

12. Considering the legal provisions as submitted by the learned counsel for the appellant regarding the act of the appellant at the most it is amounting to preparation to do the crime but not attempt to commit the crime and just for preparing to do the crime is not offence punishable and in this regard it is worthwhile to discuss regarding the aspect of preparing to commit the offence and attempt to commit the offences. A crime is committed either after pre-mediation or at the spur of the moment. In the aforementioned case, the commission of crime invariably goes through the four stages which are as follows; 

           i.    Formation of intention to commit it;

           ii.   Preparation of commission         of   the
                 contemplated crime;
                            17


           iii.   Attempt to commit it;

           iv.    If the three stage is successful, the
                  commission of the intended crime.

     13.   Mere contemplation or evil design to do      a

crime is not punishable. Preparation which essentially involves devising or measures necessary for commission of the contemplated crime is general also is not possible. Preparation does not by itself disturbed piece of essentiality and threaten since security of an individual, the three stages in the commission of crime namely attempt to commit an offence, which, essentially is a direct movement towards commission of the intended crime after preparations are made as possible. Broadly speaking an attempt to commit crime is "an intended but unfinished crime". Per se, there is no crime of attempting it but it always relative to the substantive evidence. The word "attempt" is not defined in the Penal Code and also not defined in the POCSO Act. The attempt of offence is made punishable under the Indian 18 Penal Code as per Section 511, which relates to substantive evidence. In this regard, I place reliance on the judgment of Hon'ble Supreme Court in Abhayanand Mishra Vs. State of Bihar reported in AIR 1961 SC 1698. It is difficult to make a distinction between preparation of a crime and attempt to do it. In this regard, the Hon'ble Supreme Court was pleased to lay down the principle of law at paragraphs 11 to 16, which are reproduced as under :-

"(11) Another contention for the appellant is that the facts proved do not go beyond the stage of preparation for the commission of the offence of 'cheating', and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence' and is exactly what the provisions of S.511, I.P.C., require. The relevant portion of S.511 of I.P.C., is:
"Whoever attempts to commit an offence punish- able by this Code......... or to cause such an 19 offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished........."

These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit's attempt to commit an offence punishable, must be an act which, by itself, or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by S.511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence.

(12). It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear.

(13) We may refer to some decided cases on the construction of S.511, I.P.C.

(14) In The Queen v. Ramsarun Chowbey, 4 NWP 46 it was said at page 47:

"To constitute then the offence of attempt under this section (s. 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence.
Two illustrations of the offence of attempt as defined in this section are given in the Code; both are illustrations of cases in which the offence has been 20 committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence, although it was not an act which constituted a part of the offence and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition.
From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredient (so to say) of the offence attempted............" The learned Judge said, further, at page 49:
"I regard that term (attempt) as here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence, although nothing be done, or omitted, which of itself is a necessary constituent of the offence attempted".

(15) We do not agree that the 'act towards the commission of such offence' must be 'an act which leads immediately to the commission of the offence'. The purpose of the illustration is not to indicate such a construction of the section, but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The learned Judge himself emphasized this by observing at page 48:

"The circumstances stated in the illustrations to S.511, Indian Penal Code, would not have constituted attempts under the English law, and I cannot but think that they were introduced in order to show that the provisions of Section 511, Indian Penal Code, were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law".

(16) In the matter of the petition of R. MacCrea, ILR 15 All 173 it was held that whether any given act or series of acts amounted to an attempt which the law would take notice of or merely to preparation, was a question of fact in each case and that s. 511 was not meant to cover only the penultimate act towards the completion of an offence and not 21 acts precedent, if those acts are done in the course of the attempt to commit the offence, and were done with the intent to commit it and done towards its commission. Knox, J., said at page 179:

"Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed. The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practiced upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon her mind may be several in point of number, and yet the first act after preparations completed will, if criminal in itself, be beyond all doubt, equally an attempt with the ninety and ninth act in the series.
Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt, in my opinion, because the person committing the offence does or may repent before the attempt is completed".

Blair, J., said at page 181:

"It seems to me that section (s. 511) uses the word 'attempt' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt, obviously using the word in the larger sense, 22 does any act, &c., shall be punishable. The term 'any act' excludes the notion that the final act short of actual commission is alone punishable."

We fully approve of the decision and the reasons therefor.""

14. An attempt to commit an offence in a sense is premised on the eye of something towards commission of the contemplated offence. The expression whoever attempts to commit an offence can it be understood as "whoever intends to do a certain facts with an intention or in which necessary for the commission of that offence"

15. Attempt begins where preparation ends. Ordinarily preparation to commit an offence as mentioned earlier does not attract criminal liability and a doer become liable once through his act or series of act enters into realm of attempt. Therefore, his liability depends upon judicial question when it is an act seems to be mere preparation. Therefore, distinction between the preparation and attempt becomes crucial aspect for 23 determination of a criminal liability of doer of an act. There is always a thin line of demarcation of preparation and attempt to commit an offence and therefore this difference between the preparation and attempt to do the crime can be ascertained from the facts and circumstances involved in each case as there are no exhaustive guidelines are made in this regard.

16. The Hon'ble Supreme Court in the case of Malkiat Singh & Anr. Vs. The State of Punjab reported in 1969 (1) Supreme Court Case 157, at paragraphs 6 and 7, Their Lordships were pleased observe as follows :-

"6. ...........It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus raus of a criminal attempts. The sufficiency of the actus raus is a 24 question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his Digest of Criminal Law, Article 50, defines an attempts as follows :
"an act done with intend to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case."

7. The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless."

17. In this background, the present case to be appreciated whether the act of the appellant which constitutes preparation to do the act or is an attempt to do the crime. It is necessary to have a cursory look of 25 each witnesses before making appreciation of evidence on record.

18. P.W.1 is the victim; P.W.2 is the mother of victim; P.Ws.3 and 4 are the panchas to the place of incident; P.W.5 is panch witness of recovery of motorcycle; P.W.6 is the Scribe of the complainant; P.W.7 is the owner of the land in which the alleged crime was taken place; P.W.8 is the elder brother of the father of the victim; P.W.9 is the police who carried out article to FSL; P.W.10 who is the Headmaster has issued date of birth certificate of the victim, P.W.11 is the Police Inspector and conducted investigation and filed charge sheet; P.W.12 is the doctor, who had examined the victim; P.W.13 is the doctor examined the accused; P.W.14 is the Police Constable who had received the crime and P.W.15 is the ASI who has arrested the appellant.

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19. Reg. Age of Victim:

Firstly, it is to consider whether the victim is the child as per Section 2(d) of the POCSO Act. P.W.1 deposed that victim is her daughter and going to school and was aged about 16 years and she was studying in 10th Standard at the time of commission of offence.
P.W.10 is the Headmaster of the school and he has given date of birth certificate as per the school records as per Ex.P-9 and which reflects the date of birth of the victim as 05.06.2001. The alleged offence was taken place on 09.01.2017, therefore it is proved that the victim is child below the age of 18 years as defined under Section 2(d) of the POCSO Act. Regarding this fact, there is no much dispute by the appellant stating that the victim is not the child. Therefore, in the present case it is proved that the victim is the child below the age of 18 years.
27

20. Evidence of PW.1 :

P.W.1 in her evidence further deposed that on 09.01.2017 as usually she was going to school and when she reached the temple, the appellant came therein on motorcycle (M.O.1) stating that a snake has bitten to her father and when P.W.1 was returning to the house, the appellant had told her that he would drop her to the house on his motorcycle, therefore made her to sit on the motorcycle, but instead of going to house had taken her to an agricultural land where Jawar crops were standing and tied her mouth with towel and after stripping off of her clothes, attempted to commit rape and she has screamed and upon screaming, the P.W.7 came to the place and upon seeing him, the appellant ran away, then P.W.7 had taken the victim to the house and she has suffered fever and then on 12.01.2017, she has lodged complaint as per Ex.P-1 before the police and thereafter the police have conducted spot mahazar at the place of the incident and 28 had taken photographs and also deposed that she has narrated this even before the learned Judge and then the P.W.1 was taken to the hospital, where she has been subjected to examination and she narrated this incident to the doctor and she has identified the Odni as per M.O.2.

21. The learned counsel for appellant vehemently submitted that there is contradiction revealed in so far as the material object used for the purpose of tying the victim and in the complaint it is stated that the appellant had used her Odni but in the investigation it has come that the appellant has used the towel. Therefore, this material contradiction which rendered disbelieving the evidence of P.W.1. Further, submitted that in the course of cross-examination, it is revealed that there is no forcible act by the appellant and the victim herself voluntarily sat on the motorcycle behind the appellant, therefore, when this being the 29 admission is revealed in the course of cross- examination, therefore the factum that abducting the victim is not proved and also it is elicited from the cross-examination that P.W.1 had not stated about the use of towel to tie her. Therefore, submitted the evidence of P.W.1 is found to be unbelievable and not trustworthy. Further, submitted that in the course of the cross-examination it is revealed that P.W.1 had not taken school bag, but only had taken the books, but during the course of conducting the panchanama the books were not found and it is also not recorded in the panchanama that the books were scattered on the place of the incident. Therefore, submitted considering all these evidences upon proper analysis and the cumulative effect that P.W.1 as discussed above rendered the evidence of P.W.1 is found to be unbelievable.

30

22. Considering the evidence of P.W.1 as discussed above and the submission by the learned counsel for the appellant that recovering the material objects which is used for tying the victim is said to be a minor in nature. In the complaint as per Ex.P-1 while giving the complaint odni is used for tying but in the evidence has stated that used the towel. But this aspect to be considered here whether the appellant tied the victim with towel or odni. The difference in description of material object in this regard is found to be minor in nature and during the trial, the prosecution has produced Odni before the court as it is marked as M.O.2. Even though the P.W.11-Investigating Officer had stated that P.W.1 had not stated that the appellant had not used towel, but this omission does not go to the prosecution case rendering the prosecution case is false one. Whatever may be contradiction of materials used for the purpose of commission of the offence whether it is towel or Odni, it is found to be minor in nature. 31 Considering another submission made by the learned counsel for the appellant that there is no forcible act on the part of the appellant in taking the victim on the motorcycle, but here it is revealed that the appellant had told that the father of the victim suffered snake bite and with that anxiety the victim herself sat on the motorcycle which is amounting to inducing the victim by the appellant in making her to believe words of accused and sit on the motorcycle. Therefore, the cross- examination in this regard does not discredit the evidence of P.W.1 regarding the act as committed by the appellant. Further, on the place of incident when panchanama was conducted the books were not found either in the Panchanama or it does not appear on the photograph, but considering the factum that the alleged offence was taken place on 09.01.2017 and complaint was lodged on 12.01.2017. Therefore, there might be chances of taking away the books. Therefore, just because books were not found at the place of incident 32 does not impeach the evidence of P.W.1 to say that P.W.1 is telling lie before the court. Therefore, upon considering the evidence of P.W.1, the evidence of P.W.1 is found to be believable.

23. Evidence of PW.2 :

P.W.2 is the mother of the victim and she has deposed that she had returned to the house after completion of her coolie work on evening and noticed that the victim was crying and upon enquiry the P.W.1 had narrated the incident. Upon considering the cross-
examination of P.W.2, nothing is elicited to discard the evidence of P.,W.2. Even though the P.W.2 is not an eyewitness to P.W.2 and therefore forming of transaction in chain and hence the evidence of P.W.2 is found to be relevant as per Section 6 of the Indian Evidence Act on the principle of res gestae. When P.W.1 had come to the house after the incident, P.W.2 was not in the house but she has gone for coolie work and after 33 returning from the coolie work evening at 5.00 p.m., P.W.2 came to know this factum, therefore the evidence of P.W.2 the relevant.

24. Further, the learned counsel for the appellant argued that the place of incident is changed by the evidence of the P.W.1. In the complaint it is stated that the appellant has taken the victim to the land belonging to Siddappa (P.W.7) , but P.W.2 had stated that she was told that the appellant has taken the victim to the land belonging to Honnappa Sahukar. Therefore, it is submitted that the place of incident also changed. Regarding this, further P.W.3 is also spot panch witness as per Ex.P-2 had stated that the victim had taken the police to the land belonging to one Honnappa Sahukar and therein the police have made arrangement for taking photographs as per Exs.P.4 and

5. But, upon considering this aspect in telling the name of the land owner differently but I am of the opinion that 34 this is a minor contradiction and has not rendered prosecution case in its entirety is found to be unbelievable. There may be difference in stating the name of the owner of the land, but which does not discredit the prosecution case. P.W.1 had shown the place of incident and quite natural for some times, it is not known to the persons like victim who is owner of the land and in all probability the name of the owner might have been stated. Therefore, considering all these aspect amounting to minor contradiction does not impeach the trustworthiness of the prosecution case.

25. P.W.4 is a co-panch witness he had stated that the victim had taken the police near Palakamma temple and therein panchanama was conducted as per Ex.P-2 and then taken to the land belonging to one Honnappa Sahukar wherein also police have conducted panchanama as per Ex.P-3. Therefore, even though the name of owner of the land is stated differently from the 35 averment in the complaint, but it is a fact revealed that the victim had shown the place of incident and P.Ws.2, 3 and 4 have categorically stated that the land belonging to Honnappa Sahukar, the police have conducted panchanam. Just because there is a contradiction revealed in the complaint as it belonged to Siddappa Sahukar, but which do not discredit the entire prosecution case.

26. P.W.5 is the pancha for recovery of Motorcycle and he has simply stated that he put signature on the panchanama in the Police Station and identified the Motorcycle as M.O.1.

27. P.W.6 is the another circumstantial witness who had stated that the victim had told that the appellant had taken her on the motorcycle by saying her that her father had suffered snake bite and then the appellant has taken to the land belonging to Honnappa and therein the appellant had tried to ravish the victim. 36 P.W.6 is the circumstantial witness he had heard only regarding the incident and he is not an eyewitness to the incident. This witness is the senior uncle of the P.W.1 and elder brother of the father of the victim.

28. P.W.7 is the witness as per prosecution case he has witnessed the incident by going over to the place of incident on the land and saw that the victim was crying. P.W.7 had stated that about 4-5 months before from the date of examining him before the court, P.W.1 was screaming and was crying and then he had sent P.W.1 to her house and except this he stated nothing about the case. P.W.7 turned hostile in part and therefore the prosecution after taking permission from the court put him into cross-examination and admitted the suggestion as true that on 09.01.2017 at 10.30 a.m. when he has taken Ox to the field for grazing, he heard the screaming from Honnappa Sahukar land and he went there and saw that hands and legs of P.W.1 were 37 tied with Odni. But P.W.7 had denied the suggestion that after seeing him, the appellant had run away. Further, he denied the suggestion that P.W.2 had told that appellant had taken her on the motorcycle by saying that her father suffered snake bite and then abducted her to the land and tied her and attempted to commit rape on her. This suggestion is denied by P.W.7. Therefore, whatever admission given by P.W.7 in the course of cross-examination regarding he had heard the screaming from the land of Honnappa Sahukar, therein he went and saw that the victim was found tied with Odni and this portion is found to be relevant and admissible which supports the prosecution case. Upon considering the cross-examination of this witness regarding this hearing of screaming of the victim and seeing the victim's hands and legs were tied by Odni is not impeached, therefore the evidence of P.W.7 so far as this portion which supports the prosecution case is found to be reliable.

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29. P.W.8 is brother of the victim who is a hearsay witness and he has heard this fact from P.W.1. P.W.8 deposed that on 09.01.2017 he went to Surpur and returned to the house at 6.00 p.m. and P.W.1 had told him the act of ravishness committed by the appellant to her. Upon considering, the cross- examination of P.W.8, nothing is revealed what he heard is found to be not proved. The evidence of P.W.8 that he received the information of this incident from P.W.1 at 6.00 p.m. soon after entering into the house on the very same day, therefore, the evidence of P.W.8 is also found to be relevant as per Section 6 of the Evidence Act on the principle of res gestae. There is no time gap found to make deliberate act in receiving the information from P.W.1 and P.W.8 had received the information soon after coming over to house at 6.00 p.m. from the P.W.1. Therefore, the evidence of P.W.8 is found to be relevant. 39

30. P.W.12 is the doctor who had examined P.W.1 and has given evidence that on 12.01.2017 at 6.00 p.m., P.W.1 was taken to the hospital for examination and during examination she has received information from P.W.1 that on 09.01.2017 when P.W.1 was going school the appellant herein being friend of her father had tried to ravish her and narrated the incident. If P.W.12 stated that P.W.1 had told her that the appellant had taken her on a two wheeler to the agricultural land and the hand and legs of the victim were tied with Odni and by holding her the victim forcibly and taken inside the land. The counsel for the appellant submitted that this is amounting to improvement. Therefore, he submitted that the prosecution case is not believable as there is improvement from stage to stage from witness to witness. Upon considering evidence of this P.W.12, the role of the P.W.12 is only medical examination of the P.W.1. P.W.12 had stated that there was no sign of 40 sexual intercourse on P.W.1 and accordingly she has given certificate as per Ex.P-14. During the course of cross-examination, it is suggested that if any person is made fallen on the ground and tried to make sexual intercourse, then the said person would sustain injuries, but the doctor had not found any injuries on the P.W.1. Mere absence of injuries on the P.W.1 are not said to be unbelievable of the evidence of P.W.1 and the prosecution case. Here the prosecution case is that the appellant had tied P.W.1 with Odni and in the process and accomplishing his intended task then it was interrupted by P.W.7. Therefore, under these circumstances, there might not be chances of sustaining injuries. Therefore, in the absence of injuries this cannot be made ground in the present factual matrix of the case to render the prosecution case is unbelievable.

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31. P.W.13 is another doctor had examined the appellant and issued certificate that there is no suggestion to say that the appellant is not able to do sexual act.

32. P.W.11 is the Investigating Officer who had conducted investigation and narrated sequence of events during the course of investigation and after collection of evidence filed the charge sheet. P.W.11 is cross-examined to the effect that resulting omissions found from the evidence of P.Ws.1 and 2 as discussed above. Even P.W.11 had sated that P.W.2 had not stated before him that the victim was tied with towel and also the appellant had not stripped off the clothes of the P.W.1 and the towel was not recovered. These omissions are not going to the very core of the prosecution case. Further P.W.11 had stated in cross-examination that he had not recovered the towel but recovered Odni as discussed above, this contradiction does not discredit 42 the prosecution case when evidence of prosecution witnesses are considered to its cumulative effect. Therefore, the evidence of P.W.11 is to the effect regarding narrating the sequence of evidence and collection of evidence and filing of charge sheet.

33. Therefore, upon considering all the evidences on record as it is observed above, except admitting the minor contradictions and omissions as discussed above, the cumulative effect of the prosecution case as revealed from their evidences proved the fact that the appellant has induced P.W.1 and taken her to the land and tied the victim with by M.O.1 - Odni and attempted to commit the crime as alleged. Therefore, the prosecution is able to prove the guilt of the appellant that he had taken P.W.1-Victim on motorcycle by falsely stating that her father had suffered snake bite and saying her that he would leave the victim to her house and thus in this way induced P.W.1 and had made her to sit on the 43 motorcycle but instead of going to her house, had taken her to the land and therein the appellant had tied hands and legs of P.W.1 with an intention to commit the offence of rape as against her and PW.-1 screamed and at that point of time the appellant was interrupted by P.W.7-Siddappa and when he came to the place of incident upon hearing the scream of the P.W.1 the appellant ran away thus, whether this act constitutes offence of attempting to commit rape punishable under Sections 376/511 of IPC or offence of outraging modesty of a woman punishable as per Section 354 of IPC or whether it is amounting offence committed by the appellant under Section 7 of the POCSO Act. Whether the appellant has committed these offences is to be gathered from the finding given as above stated. The learned counsel for the appellant had stated that from the finding and reached conclusion as above stated is not amounting to the offence of attempting to commit rape attracting offence under Section 376/511 of IPC 44 and also the offence under Section 7 of the POCSO Act, therefore submitted at the most as against this appellant, the only offence of outraging modesty of the woman is attracted punishable under section 354 of IPC.

34. Admittedly, in the present case, the learned Special Judge had not recorded conviction of the appellant under Section 376/511 of IPC. The learned Special Judge has only recorded the conviction for the offence under Section 18 of the POCSO Act and accordingly passed order on sentence. But Section 18 deals with only attempt to commission of offence under the POCSO Act. Section 18 of the POCSO Act alone is not substantive offence unless commission of substantive offence defined in POCSO Act, whether it constitutes or not. But in the charge framed, the Special Court had framed charges for the offence under Section 376/511 of IPC and under Section 4 and 18 of 45 the POCSO Act. The said court had not convicted under Section 376/511 of IPC and also had not stated whether Section 4 of the POCSO Act attracts or some offence attracted. Simply convicted the appellant under Section 18 of the POCSO Act. The Special Court had not specifically given finding whether Section 4 of the POCSO Act attracts in the present case and whether the appellant was liable to be convicted for attempting to commit offence under Section 4 of the POCSO Act. In this regard, the Special Court had not assigned reasons for what substantive offences the appellant is going to be convicted. Therefore, in this background, these submission made by the learned counsel for the appellant is to be considered. In this regard, the learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Sri Chand reported in (2015) 11 SCC

229. Therefore, by placing reliance on this judgment, the learned counsel submitted that in the present case 46 at the most the act of the appellant proved to be outraging the modesty of P.W.1 but certainly not the offence of attempt to commit rape.

35. The facts in the above cited case are that; the victim was 12 yeas old and had gone to the Jangal to graze buffalos and the respondent therein had approached the victim and lured the victim and taken the victim to his house and there was nobody in the house and had taken the victim in the house and closed the door inside, forcibly undressed the victim and made her to lie on the ground and was about to lay down on her at that time upon hearing scream of the victim cried upon which the respondent had put some cloth in her mouth and hearing her cry one Bihari Saini, who was passing nearby reached there and witnessed the whole incident and another person had also come to the spot and then the respondent fled away from the place of incident. Under these factual matrix, the Hon'ble Apex 47 Court while placing reliance on the earlier judgments of Apex Court had held that the act of the respondent is amounting to outraging the modesty of a woman but not the offence attracting attempt to commit rape. The learned Sessions Judge therein had found the accused guilty under Section 354 of IPC and went on granting the benefit of Probation of Offenders Act. Therefore, the finding of the learned Sessions Judge therein recording the respondent-accused was guilty of the offence under Section 354 of IPC is confirmed but granting of benefit of Probation under the Probation of Offenders Act is set aside.

36. Further the learned counsel for the appellant/accused had relied on the judgment of the Bombay High Court in the case of Sitaram Sambhaji Mane vs. The State of Maharashtra in Criminal Appeal No.147/2018 decided on 02.04.2019. In this cited case also the facts are that when the complainant 48 along with her mother-in-law and victim had been to their agricultural land for plucking the gross in the onion crop and they heard the voice of birds from the field of jawar crop and the complainant asked the prosecutrix to go to that field to flee the birds and then the prosecutrix went there to flee away the birds and after 10-15 minutes the complainant was feeling thirsty and proceeded towards Well for bringing the water at that time the complainant heard shouting of prosecutrix "Aayo, Aayo" and immediately the complainant noticed that prosecutrix was lying on the ground and the appellant/accused was lying on her body and appellant/accused saw the complainant and ran away. Under these factual matrix in the above cited case the Bombay High Court had held that the offence under Section 354 of IPC is made out but not the offence under Section 376 read with Section 511 of IPC.

37. Therefore, the learned counsel for the appellant by placing reliance on the above cited 49 judgments and considering the factual matrix involved in the present case submitted that it is also similar to the facts involved therein and in the present case at the most the offences are proved against the appellant/ accused is that he has committed outraging the modesty of victim - PW.1 but certainly not the offence of commission of attempt to commit rape. The facts in the judgment of State of Rajasthan v. Sri Chand supra, the offence was committed on 31.07.2002 and in Sitaram Sambhaji Mane's case stated supra before the Bombay High Court, the alleged incident was taken place on 03.01.2014. Both these cases have not involved the offence of POCSO Act as the prosecutrix were not the children so both were dealt with as per the provisions of IPC.

38. Therefore, it was held under the facts and circumstances in the above cited case that the offence constituted was under Section 354 of IPC. But in the present case, the PW.1 - victim is minor below the age 50 of 18 years and thus is a child as per definition of Section 2(d) of the POCSO Act. Even though the Sessions Court framed the charge under Section 4 and 18 of the POCSO Act but while convicting the appellant/accused has not mentioned the appellant/accused is convicted for the offence under Section 4 of the POCSO Act. But simply convicted for the offence under Section 18 of the POCSO Act. Further Sessions Court had not convicted the appellant/ accused under Sections 376 and 511 of IPC and against which the State has not preferred the appeal.

39. Section 4 of the POCSO Act deals with the punishment for penetrative sexual assault. Section 3 of the POCSO Act defines the substantive office against the child which is the offence of penetrative sexual assault. What are the acts constitute the offence of penetrative sexual assault is defined under Section 3 of the POCSO Act. Upon considering the offences alleged in the 51 present case that the appellant/accused has committed the offence in the present case as discussed above does not attract any elements of the acts as defined under Section 3 of the POCSO Act. Therefore, Section 4 of the POCSO Act is not attracted in the present case. But upon considering the offences of sexual assault as defined under Section 7 of the Act, the act of the appellant/accused is coming within the definition of Section 7 of the POCSO Act. For easy reference Section 7 of the POCSO Act is extracted as below ;-

"7. Sexual Assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

40. For proving the offence under Section 7 of the POCSO Act the following ingredients must be proved;-

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i) Whoever, with sexual intent touches the vagina, penis, anus or breast of the child;

ii) Or makes the child touch the vagina, penis, anus or breast of such person;

iii) If such person does any other act with sexual intent which involves physical contact without penetration.

Therefore, upon considering the ingredients as defined under Section 7 of the POCSO Act, the third ingredient shows that doing any other act with sexual intent which involves physical contact without penetration but with sexual intent to do with the act is amounting to constituting offence of sexual assault.

41. In the present case the appellant/accused had falsely stated to PW.1-victim that her father had suffered snake bite and with intent to commit sex with PW.1-victim had taken her on his motorcycle to a land and then tied the hands and legs of the victim, and at that time it was interrupted by PW.7. Therefore, this act 53 of the appellant/accused attracts that the appellant/accused had committed the offence under Section 7 of the POCSO Act which attracts the punishment as per Section 8 of the POCSO Act. But the Sessions Court had recorded the conviction under Section 18 of the POCSO Act which is attempt to commit the offence under the definition of POCSO Act without making any reference which substantive offence the appellant/accused has committed, whether it is Section 3 or Section 5 or Section 7 of the POCSO Act. In order to record conviction that such person has committed the offence attempting to commit crime but what crime that has been committed is to be stated but in the present case the Special Court had not stated what offence the appellant/accused has attempted to commit crime. Therefore, in the present case as discussed above marshalling the facts and evidences revealed that the appellant/accused had induced the victim as above stated and taken the victim to the land 54 with sexual intent to commit rape but interrupted at that point of time but only was in successful in tying the hands and legs of the victim. Therefore, which proves the appellant/accused has sexual intent to do the crime but unsuccessful in penetration. Therefore, this constitutes that the appellant/accused had committed the offence under Section 7 of the POCSO Act which is made punishable as per Section 8 of the POCSO Act. Therefore, even though the Special Court had held that the appellant/accused is guilty of the alleged offences but the act of the appellant/accused is to be held after careful by analyzing what are the elements of acts of appellant/accused are proved with reference to definition as stated in the POCSO Act. Therefore, I am of the opinion it is not only just outraging the modesty of PW.1 but also amounting to sexual assault on PW.1 - victim attracting under Section 7 of the POCSO Act. 55

42. The Special Court has not complied with Section 40 of the POCSO Act. Section 40 of the POCSO Act stipulates as follows :-

"40. Right of child to take assistance of experts, etc. - Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973 (2 of 1974), the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act.
Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them."

43. Therefore, as per this provision of law the parliament has conferred the right on the child or family or the guardian of the child are entitled to the assistance of legal counsel of their choice for any offence under this Act or where the family or the guardian of the child are unable to afford their own legal counsel, then the Legal Services Authority shall provide a Lawyer to them. Therefore, it is incumbent upon the Special Court to make known the law to the family or the guardian of 56 the child for taking assistance of an Advocate of their own choice or if they are unable to take their own Advocate then the Special Court shall make an arrangement providing a competent Advocate from the Panel list of the Legal Services Authority and in this regard the Special Court has to direct the concerned District Legal Services Authority to provide an Advocate from their Panel list to assist the family or the guardian of the child and also in the court. But upon considering the entire records of the Special Court there is no material found that the Special Court had followed the mandatory stipulations contained in Section 40 of the POCSO Act.

44. Further the Special Court has not granted any compensation under the Victim Compensation Scheme as per Section 357-A of the Code of Criminal Procedure and under the Karnataka Victims Compensation Scheme, 2011. It is mandatory upon the Special Court as per sub-section (8) of Section 33 of the POCSO 57 Act and also as per Rule 7 of the Protection of Children form Sexual Offences Rules, 2012 compensation shall be awarded to the victim. But in the present case the Special Court has not followed these mandatory provisions for awarding compensation to the victim.

45. Section 29 of the POCSO Act stipulates regarding presumption as to certain offences. For ready reference, Section 29 of the POCSO Act is extracted as under;

"29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

46. Section 30 of the POCSO Act stipulates regarding presumption regarding culpable mental State which reads as follows;

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"30. Presumption of culpable mental state.1(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charges as an offence in that prosecution.
(2) For the purpose of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.- In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact"

47. Therefore, as per Section 29 of the POCSO Act, a presumption can be raised so far as commission of offences under Section 3, 5, 7 & 9 of the POCSO Act and the Special Court shall presume that such person has committed or abetted or attempted to commit the offence unless the contrary is proved. In the present 59 case, the special Court has not discussed anything about this legal provision as enunciated under the provisions of the POCSO Act.

48. Upon considering the factual matrix involved in the present case, a presumption can be raised that the accused has committed the offence alleged. This presumption can be raised after the facts in issue are proved by the prosecution as discussed above. There is no straightaway jacket formula to raise the presumption, but the prosecution has to establish the fact in issue that such and such offence has been committed, then presumption can be raised. Accordingly, the prosecution in the present case has established the fact that the appellant has committed the offence. If the accused is able to rebut presumption by way of placing probable evidence that is sufficient to say that presumption is successfully rebutted. For rebutting presumption by accused, there is no need to rebut beyond reasonable doubt, but mere believable 60 probable evidence is/are sufficient. But the appellant has not placed any contra evidence to rebut this presumption in the present case.

49. Further Section 30 of the POCSO Act deals regarding culpable mental State of the accused and as per explanation provided therein that culpable mental state includes intention, motive, knowledge of a fact and belief therein or reasons to believe a fact. The culpable mental state is a collective intention or knowledge or motive in the mind of the person who is prosecuted before the court having committed such crime. The culpable mental state of the appellant can be presumed on the basis of proven facts which is proved in the given case which can be by beyond reasonable doubt. But such culpable mental state cannot be presumed by preponderance of probability.

50. Therefore, for the reasons stated above and the discussions made above since the Special Court had 61 failed to record the conviction for such substantive offence the appellant/accused is convicted under the POCSO Act but simply convicted for the offence under Section 18 of the POCSO Act which defines the attempt to commit offence under this POCSO Act. But this recording of conviction is not sufficient without recording conviction of which of the substantive offence defined under the POCSO Act is committed. Therefore, the appellant/accused is hereby convicted as defined under Section 7 of the POCSO Act which is punishable as per Section 8 of the POCSO Act.

51. For the offence under Section 7 of the POCSO Act, as punishment prescribed is under Section 8 of the POCSO Act, the punishment is ranging from 3 to 5 years. Whoever is convicted for the offence under Section 7 of the POCSO Act, the convicted offender shall not be imprisoned less than three years but the imprisonment may be extended to five years. Considering the gravity of the offence as alleged in the 62 present case as the appellant/accused is convicted for the offence under Section 7 of the Act, therefore, upon hearing the question on sentence from the learned counsel for the appellant/accused that the appellant/accused is having wife and minor children and is having old age parents and also considering the submission made by the learned counsel for the appellant/accused that the appellant does not have any criminal antecedents and also at the same time the respondent State has not placed any material before the court to show that the appellant/accused is having criminal antecedents. Therefore, considering all these mitigating factors, I deem fit it is appropriate to direct the appellant/accused to undergo simple imprisonment for a period of three years with fine of Rs.50,000/- as fine imposed by the Special Court. Hence, I proceed to pass the following :-

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ORDER The Criminal appeal filed by the appellant/accused is hereby allowed in part.
The judgment of conviction and order on sentence dated 15.03.2018 passed in Special Case (POCSO) No.55/2017 by the Court of the Sessions Judge, Yadgiri is hereby modified to the extent that the appellant/accused is convicted for the offence under Section 7 of the POCSO Act which is punishable under Section 8 of the POCSO Act and accordingly, it is ordered that the appellant/accused shall undergo simple imprisonment for a period of three years with fine of Rs.50,000/-. If the appellant/accused fails to pay the above said fine amount then further he shall undergo simple imprisonment for a period of six months.
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Out of the fine amount as above stated a sum of Rs.40,000/- is to be paid to PW.1-victim as compensation to her.
Sd/-
JUDGE sn/BL