Karnataka High Court
Nityananda Sing @ Nithyasing vs The State By Women Police on 29 April, 2026
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 616 OF 2022 (C)
BETWEEN:
NITYANANDA SING @ NITHYASING,
S/O LATE SATHYADEV SING,
AGED ABOUT 28 YEARS,
RESIDING AT MARAKADI VILLAGE,
RUDRAPURA POST,
DEORIA, UTTARPRADESH - 274 001.
...APPELLANT
(BY SRI. SAMPANGI RAMAIAH N.S., ADVOCATE)
AND:
1 . THE STATE BY WOMEN POLICE,
DAVANAGERE REPRESENTED,
Digitally BY STATE PUBLIC PROSECUTOR,
signed by HIGH COURT OF KARNATAKA,
SUMA B N
HIGH COURT BUILDING,
Location:
HIGH BENGALURU-560 001.
COURT OF
KARNATAKA
2 . FAREEDA BANU
W/O YOUNUS
R/O. 1431/1, 4TH CROSS,
AHAMAD NAGARA,
DAVANAGARE-570 005.
...RESPONDENTS
(BY SRI. B. LAKSHMAN, HCGP FOR R1;
R2 IS SERVED)
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THIS CRL.A FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 02.09.2020 PASSED BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE,
DAVANAGERE IN S.C.NO.44/2019 AND THE
APPELLANT/ACCUSED IS CONVICTED FOR THE OFFENCE P/U/S
506, 342, 363, 376 OF IPC AND SECTION 6 OF POCSO ACT;
AND ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 10.04.2026 FOR JUDGMENT COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
CAV JUDGMENT
This appeal is by the accused convicted of offences punishable under Sections 506, 342, 363, 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, (POCSO Act for short), being aggrieved by the judgment of conviction and order on sentence dated 02.09.2020 on the file of II Additional District and Sessions Judge and Special Judge, Davanagere in S.C.No.44/2019, by which the appellant has been convicted and sentenced to undergo imprisonment as under;
ORDER Acting under sec.235(2) of CrPC, accused is convicted for the offences punishable under Sec. 363,
376. 506 & 342 of IPC, and Sec. 6 of POCSO Act. -3- Acting U/Sec.235(2) of Cr.P.C., accused is convicted for the offence punishable U/Sec. 363 of IPC and sentenced to undergo R.I for three years, and to pay a fine of Rs.5.000/-, and in default of payment of fine he shall undergo simple imprisonment for six months.
Acting U/Sec.235(2) of Cr.P.C., accused is convicted for the offence punishable U/Sec. 376 2 IPC along with Sec.6 of POCSO Act, but he sentenced only under Sec.6 of POCSO Act, and he is sentenced to undergo Rigorous Imprisonment for 10 years, and to pay fine of Rs.15,000/-, and in default of payment of fine, he shall undergo S.I for one year.
Acting U/Sec.235(2) of CrPC, accused is convicted for the offence punishable under Sec. 506 of IPC, and he is sentenced to undergo R.I for a period of one year, and to pay fine of Rs.2.000/-, and in default of payment of fine, he shall undergo S.I for two months.
Acting U/Sec.235(2) of CrPC, accused is convicted for the offence punishable under Sec. 342 of IPC, and he is sentenced to undergo R.I for a period of one year, and to pay fine of Rs.1,000/-, and in default of payment of fine, he shall undergo S.I for a month.
Above sentences shall run concurrently. Payment of fine amount imposed against the accused is mandatory.
Out of total fine amount paid by the accused, a sum of Rs.20,000/- shall be paid to the victim PW.2, as compensation U/Sec.357 (1) of Cr.P.C. The Remaining fine amount shall be confiscated to the State.
Further this matter is referred to the District Legal Service Authority under Sec.357(A) of Cr.P.C, for awarding compensation to the victim girl/ PW.2, under Victim Compensation Scheme.
The Benefit of set off shall be extended to the accused as provided under Sec. 428 of Cr.P.C.
Issue Conviction Warrant accordingly. MO.1 & 2 being worthless are ordered to be destroyed, after the appeal period.
Due to the Judgment Proceedings conducted through Video Conference and the presence of the -4- accused is secured from the jail through V.C. using Jitsimeet, the PDF Format of the judgment is sent to the Mail ID of the Jail with a direction to the jail authorities to take a print out of the same and to supply to the accused immediately free of cost, and to submit the acknowledgment and compliance report to this court forthwith".
2. Case of prosecution is that, accused had gained contact with the victim over mobile phone and made her to travel from Davanagere in a train on 02.11.2018 to Bombay. On 04.11.2018, victim reached Dadar Railway Station, Bombay and from there accused had taken the victim to the place called Morvi in Gujarat. He had confined the victim in a room and did not allow her to go out. Accused also stayed in the said room during which period under threat to her life, he had committed penetrative sexual assault on the victim. 2.1. Then on 30.11.2018 accused had told the victim that he would marry her and took her to his native place Rudrapura, Uttar Pradesh, and kept her in her relatives' room. There again he committed repeated penetrative sexual assault on the victim despite her resistance. Accused had also assaulted victim by hands and legs when she refused to cooperate with him. Thus, he had committed act of penetrative sexual assault on the minor victim by kidnapping and wrongfully confining her and also had assaulted putting her under life threat. -5- 2.2. That a complaint in this regard was filed by complainant- mother of the victim girl at Women Police Station, Davanagere which was registered under Crime No.191/2018. After the investigation charge sheet was filed against the accused for the offences punishable under Sections 363, 342, 506, 323 and 376 of IPC and under Section 6 of POCSO Act, 2012. The accused was arrested on 25.12.2018. Since then he was remanded to judicial custody. Charges were framed. Since the accused pleaded not guilty, matter was settled for trial.
3. Prosecution examined 27 witnesses as PW1 to PW27 and exhibited 34 documents marked as Ex.P1 to Ex.P34 and two material objects as MO.1 and MO2 and also Ex.C1 and closed their side. The statement of the accused was recorded under Section 313 of Cr.PC and he had denied the incriminating evidence brought against him.
4. The trial Court on appreciation of the evidence framed the following points for consideration;
"1. Whether the prosecution proves against the accused beyond all reasonable doubts that, the accused made contact with the victim/CW.2 through mobile phone, and he has secured her to Bombay in a train on 2.11.2018 from Davanagere, and on 4.11.2018 the victim reached Dadar Railway Station, Bombay, and from there the accused has taken the victim to a place called Morvi in Gujarath. without the -6- consent or permission of her parents, and thereby committed an offence punishable under Sec. 363 IPC?
2. Whether the prosecution further proves its case against the accused beyond all reasonable doubts that, on the aforesaid date, time and place the accused after taking the victim to Morvi in Gujarath, kept her in a room, and from there he has taken her to his native place Rudrapura, Devari district, Uttar Pradesh, and confined her in a room and not allowed her to go out, and thereby committed an offence punishable under Sec. 342 of IPC?
3. Whether the prosecution further proves its case against the accused beyond all reasonable doubts that, on the aforesaid date, time and place, the accused has told the victim not to talk with anybody, and committed criminal intimidation by putting a life threat to the victim if she talks with anybody, and thereby committed an offence punishable under Sec. 506 of IPC?
4. Whether the prosecution further proves its case against the accused beyond all reasonable doubts that, on the aforesaid date, time and place, the accused after taking the victim to Morvi, of Gujarath and then to his native place Rudrapura. Uttar Pradesh, he has kept her in a room and during his stay with her in the said room, he has committed forcible sexual intercourse on her without her consent and against her will, and thus raped her, on several days in that period, and thereby committed an offence punishable under Sec. 376 of IPC?
5. Whether the prosecution further proves its case against the accused beyond all reasonable doubts that, on the aforesaid date, time and place, the accused knowingly that the victim is a minor girl, has committed forcible penetrative sexual assault on the victim on several occasions and thereby committed an offence punishable under Sec. 6 of POCSO Act ?
6. Whether the prosecution further proves its case against the accused beyond all reasonable doubts that, on the aforesaid date, time and place, the accused has assaulted the victim with his hands and legs when she resisted the act of sexual assault on her, and thus caused bodily hurt to her and thereby committed an offence punishable under Sec. 323 of IPC ?
7. What Order?"-7-
5. On appreciation of the evidence, trial Court answered the point Nos.1 to 5 in the affirmative and point No.6 in the negative and consequently passed the impugned judgment and order as noted above. Being aggrieved by the same the present appeal.
6. Learned counsel for the accused-appellant at the outset submitted;
6.1. that in order to bring the case within the provisions of Section 6 of the POCSO Act, 2012 the prosecution has to establish the age of the victim to be below 18 years. 6.2. In this regard he refers to the deposition of PW16-Dr. Anupama. The said witness has deposed that on examination of the victim she had not found any injuries. She has also spoken about she having referred the victim to the Dentist and Radiologist. According to Radiologist age of the victims is shown as 17 to 19 years and as per the Dentist her age is shown to be between 18 to 19 years. The FSL report was negative. She has given her opinion stating that there is no evidence of suggestive of recent sexual intercourse. -8- 6.3. Thus, referring to the said deposition of PW.16- Dr. Anupama, the counsel for the accused-appellant vehemently submits that since the report of the Radiologist as well as the Dentist indicate age of the victim between 17 to 19 years and 18 to 19 years respectively, the benefit of this ambiguity has to be held in favour of the accused.
6.4. He refers to document at Ex.P22, which is a certificate dated 19.12.2018 issued by Vice Principal of Rajanahalli Seethamma Girls' High School, Davanagere. The date of registration in the said document is shown to have been made in the year 2015-16. He submits except these documents, the prosecution has not produced any evidence to prove the age of the victim to be below 18 years.
6.5. He refers to the judgment of the Apex Court in the case of Rajak Mohammad v. State of Himachal Pradesh reported in (2018) 9 SCC 248 wherein at paragraph 9, the Apex Court has held as under;
"9. While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with a report of the radiological examination leaves the room for ample doubt with regard to the correct age of prosecutrix. The benefit of aforesaid doubt naturally must go in favour of the accused. "-9-
6.6. In the instant case, since the age of the victim as noted above is shown to be between 17 to 19 years, 18 to 19 years, without there being any sufficient margin, and in the absence of any material evidence, the prosecution as rightly pointed by the counsel for the accused-appellant has failed to prove the case falling within the provisions of POCSO Act, 2012.
7. Heard. Perused the records.
8. Point that arise for consideration is;
"Whether the trial Court is justified in convicting the appellant for the offence punishable under Sections 506, 342, 363, 376 of IPC and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012?"
9. In order to establish the guilt of the accused-appellant for the offence punishable under Section 6 of POCSO Act, 2012 the prosecution is required to prove the age of the victim to be below 18 years. In this regard the prosecution has examined PW.23- Manjappa, the Vice Principal of Rajena Halli Seethamma Girls' High School, Davanagere who in his evidence has deposed that he has issued document namely School Confirmation certificate at Ex.P22 based on the transfer certificate pertaining to 7th standard of the victim. He has also
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admitted that he has not furnished the original register. Perusal of document in Ex.P22 indicate that the same has been issued on 19.12.2018 based on the Transfer certificate pertaining to 7th standard of the victim. It refers to Registration No.01/2015
-16, wherein the date of birth of the victim is shown as 18.05.2002.
10. The doctor PW16 is Dr. Anupama, who in her evidence has deposed that she had referred the victim to Dentist and Radiologist. According to Radiologist her age is shown as 17 to 19 years and as per the Dentist her age is between 18 to 19 years. Thus, based on this material evidence the trial Court has come to the conclusion that the age of the victim was below 18 years, falling within the provisions of POCSO Act, 2012.
11. As rightly pointed out by learned counsel for the accused- appellant, the aforesaid evidence to establish the age of the victim below 18 years falls short of the statutory requirement.
12. Apex Court in the case of P. YUVAPRAKASH V. STATE REPRESENTED BY INSPECTOR OF POLICE reported in 2023 SCC Online SC 846 wherein at paragraphs 11 to 19 has held as under;
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"11. The prosecution, however, did not provide any evidence to establish that the victim's age was under 18. It was argued that, given the totality of these circumstances and that the victim had changed her version and deposed contrary to what she stated in her statement under Section 164CrPC, the appellant could not have been convicted for the offences he was charged with. It is lastly argued that the High Court acquitted the appellant of the charge under Section 366IPC which gives a complete lie to the prosecution story about the kidnapping or forceful abduction of the victim.
12. Mr V. Krishnamurthy, learned Additional Advocate General appearing for the State, supported the concurrent conviction and sentence recorded by the courts below; he submitted that even though the victim and the appellant knew each other, and even if it was accepted that they had feelings for each other, the fact remains that the victim was below the statutory age, and consent is irrelevant. He submitted that the findings of the courts below with respect to the age of the victim were supported or corroborated only by the testimony of DW 2, the Headmistress of the school where 'M' had studied. She had deposed that according to the school records, M's date of birth is 11-7- 1997.
Analysis and conclusions
13. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the Pocso Act which reads as follows:
"34. Procedure in case of commission of offence by child and determination of age by Special Court.--
(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."
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14. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
"94. Presumption and determination of age.--
(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the examination Board concerned, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a Panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
15. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice
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Act requires consideration is that the court concerned has to determine the age by considering the following documents:
"94. (2)(i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the examination Board concerned, if available; and in the absence thereof;
(ii) The birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) And only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board."
16. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the examination board concerned has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the authority concerned i.e. Committee or Board or Court.
17. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ext. C-1 i.e. the school transfer certificate showed the date of birth of the victim as 11-7-1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness i.e. CW 1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW 3, the Revenue Official (Deputy Tahsildar) concerned had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ext. C-1 could not have been relied upon to hold that 'M' was below 18 years at the time of commission of the offence.
18. In a recent decision, in Rishipal Singh Solanki v. State of U.P. [Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC 602 : (2022) 3 SCC (Cri) 703] , this
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Court outlined the procedure to be followed in cases where age determination is required. The Court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: (SCC p. 616, para 22) "22. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
19. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this Court held in Sanjeev Kumar Gupta v. State of U.P. [Sanjeev Kumar Gupta v. State of U.P., (2019) 12 SCC 370 : (2019) 4 SCC (Cri) 379] that: (SCC p. 381, para 17) "17. ... Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the examination board concerned in the same category, [namely, (i) above.] In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category."
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13. Clearly the documents produced by the prosecution to establish the age of the victim fall short of the aforesaid statutory requirement of law. Therefore, the trial Court in the considered view of this Court erred in holding the age of the victim below 18 years. Consequently, the judgment of conviction and order on sentence passed against the accused- appellant for the offence punishable under Section 6 of POCSO Act, 2012 cannot be sustained.
14. As regard to the offence committed under Sections 363, 376, 506 and 342 of IPC is concerned, it is relevant to refer to the deposition of the victim- PW2; In her examination in chief the victim has deposed that she came in acquaintance with the appellant-accused through phone. That upon his instruction she travelled from Davanagere to Bangalore in a train. That while travelling to Bangalore, she had taken a SIM card of one Manjula who has been examined as PW.4. That through the SIM card of said PW.4 -Manjula she has spoken to the accused who had represented himself and she travelled from Bangalore to Dadar at Bombay. She travelled on 02.11.2018 and reached Dadar on 04.11.2018. That during the two days of her travel she had sufficient money with her to have her food and other
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expenses; That she met the accused at Dadar. From Dadar she travelled with the accused to a place called Morvi in Gujarat and stayed at a place called Kirawit Tiles Factory. The victim has also deposed that they stayed in workers quarters and there were several families residing in the said locality. She has pleaded ignorance if anybody knew about she being there. However, she has alleged that the accused did not allow her to meet with anyone. She has admitted accused used to bring food and other eatables; On a question as to if she had resisted against accused committing sexual assault, she has deposed that accused had threatened her and had caused life threat to her. On a question whether she attempted to call anyone when the accused was asleep, she has replied that accused has kept the SIM card with him to avoid the identification of location. The witness has further deposed that on 30.11.2018 she travelled along with the accused from Gujarat to Uttar Pradesh. She reached Uttar Pradesh on 03.12.2018 at 03.00 p.m. at a place called Rudrapura. She travelled for 3 nights 2 days. She travelled in a general compartment. On a question as to whether she complained to any persons travelling along with her or did she try to escape, she has replied that the accused had instructed her not to talk to anyone and had threatened
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her. On a question as to whether she tried to escape when the accused went out she has said the accused was always with her and never allowed her; She has further deposed that she stayed with the accused in Rudrapura in a room which was in a huge building. There were no other persons residing there. She could not escape from there as the accused had closed the shutters. The victim has deposed that she travelled from Davanagere to Bangalore on 02.11.2018 and from Bangalore to Dadar between 02.11.2018 to 04.11.2018. That she stayed between 02.11.2018 to 30.11.2018 at Morvi of Gujarat. That she travelled from Morvi to Uttarpradesh, Rudrapur on between 03.11.2018 and 03.12.2018. Finally she was traced at Gorakhpur railway station on 13.12.2018.
15. Thus, the victim has stayed with the accused between 04.11.2018 to 13.12.2018. It becomes improbable to accept and countenance the deposition of the victim that during all these days when she has travelled from Dadar to Morvi in Gujarat and Morvi to Rudrapur at Uttar Pradesh in a general compartment and during the said period she having stayed amongst various other workers she did not raise any alarm and that accused had constantly kept her under threat. This version has not been appreciated by the trial Court.
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16. Sections 342, 506 and 376 of the IPC reads as under;
"342. Punishment for Wrongful confinement - Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
376. Punishment for rape.--(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 3 [shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine] (2) Whoever,--
(a) being a police officer, commits rape--
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence;
or
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(h) commits rape on a woman knowing her to be pregnant; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
506. Punishment for criminal intimidation.--Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1 [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
17. The Apex Court in the case of S. VARADARAJAN V. STATE OF MADRAS, reported in 1964 SCC ONLINE SC 36 at paragraphs 9 and 10 has held as under;
"9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not
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synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
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18. Since this Court has already held that the prosecution has failed to prove that the victim was below age of 18 years, the only other ground which was available for the prosecution to prove that she was subjected to sexual assault against her will as contended under Section 376 of IPC, the facts noted above and the undisputed fact of she staying with the accused between 04.11.2018 to 13.12.2018 without any resistance makes it improbable and creates a doubt in the case of prosecution, the benefit of which has to be given to the accused.
19. Accordingly, the following;
ORDER
i. Criminal Appeal is allowed.
ii. Judgment and order of conviction dated 01.09.2020
and order on sentence dated 02.09.2020 in
S.C.No.44/2019 passed by the II Additional District and Sessions Judge & Special Judge, Davanagere, is set aside.
iii. The appellant/accused is acquitted of the charges for the offences punishable under Sections 506, 342, 363 and 376 of IPC and Section 6 of POCSO Act, 2012.
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iv. The bail bond of the accused and his surety shall stand cancelled.
v. The fine amount deposited, if any, by the appellant/accused shall be refunded to him. vi. Communicate copy of this order to the trial Court and concerned Prison authorities forthwith.
Sd/-
(M.G.S. KAMAL) JUDGE RU, List No.: 1 Sl No.: 16