Karnataka High Court
Ismail vs State Of Karnataka on 19 January, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1445 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1445 OF 2022
BETWEEN:
ISMAIL
AGED ABOUT 45 YEARS
S/O LATE K MOHAMMED
R/AT PORIMELU HOUSE
PILATHABETTU VILLAGE,
BANTWAL TALUK
D K DISTRICT-574233
...APPELLANT
(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)
AND:
STATE OF KARNATAKA BY
SHO PUNJALKATTE POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560001
...RESPONDENT
Digitally signed by (BY SMT.N.ANITHA GIRISH, HCGP)
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
COURT OF
KARNATAKA ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 28.07.2022, PASSED BY THE ADDITIONAL
DISTRICT AND SESSIONS JUDGE/FTSC II (POCSO) D.K.,
MANGALURU IN S.C.NO.125/2019 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 4 OF THE
POCSO ACT AND SEC.506 OF IPC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1445 of 2022
JUDGMENT
This appeal is filed by appellant/sole accused praying to set aside the judgment of conviction and order of sentence dated 28.07.2022 passed in Spl.Case No.125/2019 by the Additional District and Sessions Judge, FTSC-II, Dakshina Kannada, Mangalore.
2. The appellant/accused has been convicted for offence punishable under Section 6 of the Protection of Child from Sexual Offences Act, 2012 (for short hereinafter referred to as 'POCSO Act') and Section 506 of Indian Penal Code (for short hereinafter referred to as `IPC') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.20,000/- for offence punishable under Section 6 of the POCSO Act and sentenced to undergo simple imprisonment for a period of six months for offence punishable under Section 506 of IPC.
3. The factual matrix of the prosecution case is as under:
The appellant/accused is father of the PW-1/victim girl and they were residing together in residential house.-3-
NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 On 08.02.2019 in between 11.30 p.m. to 12 'o' clock in the midnight, the victim girl sleeping in the separate room at that time accused has gone to the said room and closed room and had forcible penetrative sexual intercourse.
Even, thereafter had sexual intercourse for 3-4 times which resulted the victim girl is 4 and half months pregnant. Charge sheet has been filed against this appellant/accused for offence punishable under Section 376 of IPC and Sections 5(l) and 5(n) r/w Section 6 of the POCSO Act. The Special Court has framed charges for the said offences. The prosecution in order to prove the charges has examined PW-1 to PW-11 and got marked EX.P1 to P24. The trial Court, after hearing arguments both sides formulated the points for consideration and after appreciating the evidence on record, convicted the appellant/accused for offence punishable under Section 6 of the POCSO Act and Section 506 of the IPC. The said judgment of conviction and order of sentence has been challenged in this appeal.-4-
NC: 2024:KHC:2617 CRL.A No. 1445 of 2022
3. Heard arguments of learned counsel for the appellant/accused and learned High Court Government Pleader for the respondent -State.
4. Learned counsel for the appellant/accused has argued that the age of the victim girl has not been proved. EX.P14 is certificate and EX.P16 is extract of admission register issued by the PW-6/Vice Principal will not establish the age of the victim girl as required under Section 34 of the POCSO Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short hereinafter referred to as `JJ Act') as held by the Hon'ble Apex Court in the case of Marlinga @ Mariyappa Vs State of Karnataka1. He further contends that the Trial Court only based on the DNA report has convicted the appellant/accused. The said DNA report is not substantial piece of evidence. He contends that the DNA report can be relied where there is separate conception but it cannot be accepted in islotation or sole piece of evidence to record conviction in rape cases. He contends that there is 1 2022 SCC OnLine Kar 1644 : ILR 2022 KAR 3377 -5- NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 delay of two days in sending conception to FSL and the Investigation Officer has not followed the guidelines for collection, storage and transportation of the crime scene DNA samples. He contends that the DNA Paternity Testing Form is not prepared. The conception was sent through plastic box and stored in salt. The victim girl was aborted on 01.07.2019, aborted Foetus was received on 03.07.2019 at FSL, Bangalore and analysis started on 03.05.2020 to 30.05.2020. There is no evidence to show that how it was stored by FSL, Bangalore till the said date. He contends that blood sample of the appellant and victim was not drawn as per guidelines. The PW-10/Doctor has not prepared Blood Sample Authentication Form as per guidelines. PW-9/I.O was not prepared Chain of Custody as per guidelines. There is no positive evidence that the appellant/accused had sexual intercourse with PW- 1/Victim girl without her consent or against her will. He placed reliance on that as under
1) Prakash Nishad @ Kewat Zinak Nishad Vs. State of Maharastra reported in AIR 2023 SC 2938 -6- NC: 2024:KHC:2617 CRL.A No. 1445 of 2022
2) Nagappa Vs. State of Karnataka reported in 2019 SCC OnLine 3880
3) Premjibhai Bachubhai Khasiya VS State of Gujarat and Another reported in 2009 SCC OnLine Guj 12076
4) Rajesh Prasad Yadav @ Chootu Vs State of Karnataka by the Co-Ordinate Bench of this Court in Crl.A.No.388/2019.
5) State of Karnataka Vs. R. Allabhakshi @ Bhakshi and others by the Division Bench of this Court in Crl.A.No.623/2017
6) Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and Others reported in (2022) 12 SCC 657
7) Madan Gopal Kakkad Vs Naval Dubey and Another reported in (1992) 3 SCC 204
5. He contends that in the statement of the victim girl recorded under Section 164 of Cr.P.C which is at EX.P4 there is no allegations of any forcible sexual intercourse by this appellant/accused on her. He further submits that without considering all these aspects the learned Special Judge has held erred in convicting the appellant/accused only based on the DNA report without corroborating -7- NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 evidence. Even though the victim girl and mother of the victim girl have not supported the case of the prosecution.
On these grounds, he prayed to allow the appeal.
6. Learned High Court Government Pleader argued that on appreciation of evidence on record, the Trial Court has rightly convicted appellant/accused. She has supported reasons assigned by the Trial Court. She has further argued that the DNA report is sufficient to hold that this appellant/accused had committed sexual intercourse on the victim girl who is his daughter. The school records namely EX.P14 and 16 will prove the age of the victim girl and victim girl is aged bellow 18 years. On these grounds, she has sought for dismissal of the appeal.
7. On the grounds made out and considering arguments advanced, the following point that arises for consideration is, "Whether the Trial Court has held erred in convicting appellant/accused for offence punishable under Section 6 of the POCSO Act and Section 506 of IPC."?
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8. My answer to the above point is in the Affirmative for the following reasons In order to attract offence under the POCSO Act the prosecution has to establish that the victim girl is a child as defined under Section 2(1)(d) of the POCSO Act. As per Section 2(1)(d) of the POCSO Act child means any person below the age of eighteen years. In order to ascertain whether the prosecution has proved whether the victim girl is a child or not, it is necessary to consider the following provisions of law.
9. Section 34 of the POCSO Act 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, 2000 (56 of 2000).-9-
NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 (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."
10. In view of Section 34(1) of the POCSO Act, Section 94 of JJ Act becomes relevant and applicable. Therefore the same is extracted and it reads as under:
"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
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 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 concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
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(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."
11. It is evident from a conjoint reading of the above provisions that to resolve whatever dispute with respect to the age of a person that 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 the order of which the JJ Act requires consideration is that the concerned Court has to
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 determine the age by considering the following documents:
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a 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:
Section 94 of the JJ Act clearly indicates that the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board has to be firstly preferred in the absence of which date of birth
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 certificate issued by a Corporation or Municipal Authority or a Panchayat can be considered and it is only thereafter, in the absence of these documents, age is to be determined through 'ossification test' or by any other latest medical age determination test conducted on the orders of the concerned authority, i.e., Committee or the Board or Court'.
12. In the present case only certificate (Ex.P14) issued by the Vice Principal, Karnataka Public School, Punjalakatte, Belthangady and extract of the admission register of that school (EX.P16) and not the date of birth certificate or matriculation or equivalent certificate are considered. EX.P14 and EX.P16 have been issued by the PW-6/Vice Principal of the said school. As per EX.P14, PW-1/victim girl is studying in said school in 10th standard for the academic year 2019-2020 and her admission No. 136/18-19. As per EX.P16 extract of the admission register, the PW-
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 1/Victim girl has taken admission in the said school in the year 2018-19 and she was earlier studied in Government Higher Primary School, Punjalakatte upto 8th standard. The date of birth as mentioned in EX.P14 and P16 is 01.06.2002. Date of her admission is on 01.06.2018 in the said High school.
13. PW6 - the Vice Principal who has issued Exs.P14 and P16, in his cross examination stated that PW1
- the victim girl was admitted to their school for 9th Standard, based on the transfer certificate and they have not asked their birth certificate at the time of admission. The documents produced at Exs.P14 and 16 do not answer the description of any of the class of documents mentioned in Section 94(2)(i) of the J.J. Act, as they were issued based on the Transfer Certificate issued by the Primary School. Therefore, the Trial Court could not have placed reliance on those documents to hold that the victim girl was below 18 years at the time of commission of the offence.
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14. As per Rule 12(3)(ii) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the date of birth certificate from the school (other than the play school) first attended can be taken into consideration in the absence of matriculation or equivalent certificate. Exs.P14 and 16 are not date of birth certificates from the school first attended by the victim girl. The Trial Court has erred in placing reliance on Exs.P14 and 16 to establish the date of birth of the victim girl. In Ex.P16, there is a specific mention that the victim girl has studied upto 8th Standard in the Government Higher Primary School, Punjalakatte and she came to be admitted to Karnataka Public School, Punjalakatte on 01.06.2018 for 9th Standard. There is no matriculation or equivalent certificate as the victim girl has not studied the matriculation. There is no birth certificate issued by the Corporation or the Municipal Authority or the Panchayath, as the Investigating Officer has not collected any such documents. There is no birth certificate issued by the Corporation or Municipal Authority or Panchayath as the
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 Investigating Officer has not collected any such documents. The evidence on record does not reveal that any ossification test was conducted to ascertain the age of the victim girl. The Hon'ble Apex Court in the case of P.Yuvaprakash Vs. State by Inspector of Police reported in 2023 INSC 626, after considering the provisions of Section 34 of the POCSO Act, Section 94 of the J.J. Act, and the decisions of the Hon'ble Apex Court in the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh reported in 2021 (12) SCR 502, Sanjeev Kumar Gupta Vs. The State of Uttar Pradesh and others, reported in 2019 (9) SCR 735 and Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal reported in 2012 (9) SCR 224 has observed thus:
"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate"
from the concerned examination board or certificate by a corporation, municipal authority or a Panchyat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 the victim's age was below 18 years as per Section 94(2)(iii) of JJ Act. ... ... ... "
15. Even the victim girl in her cross examination has stated that her age is 23 years and she was examined on 12.04.2022. Mother of the victim girl who has been examined as PW2 has not stated the date of birth of the victim girl. The documents Exs.P14 - certificate and Ex.P16 - extract of the admission register are not what Section 94(2)(i) of the J.J.Act mandates and they are not in accordance with Section 94(2)(ii) of the J.J.Act. In these circumstances, the only piece of evidence accorded under Section 94 of the J.J. Act was the medical ossification test. The said ossification test has not been conducted. Therefore, under these circumstances, there is no material on record to establish the date of birth of the victim girl as per Section 94(2) of the J.J.Act and the prosecution has failed to establish that the victim girl was a child as defined under Section 2(1)(d) of the POCSO Act.
PW1 - is the victim girl. She has not supported the case of the prosecution. PW2 is mother of the victim girl
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 and she has also not supported the case of the prosecution. Even evidence of the other witnesses will not help in any manner to the prosecution, because they have not spoken anything about the alleged incident and they have spoken regarding the investigation and the other aspects.
16. The only material which is available before the Court is that of the opinion of PW10 who has issued the D.N.A report - Ex.P22. PW10 opined that the accused is included being the biological father and the victim girl's sample blood is included being the biological mother of the produce of conception.
17. The Co-ordinate Bench of this Court in a similar case where the victim and the appellant have not supported the case of the prosecution and the accused has been convicted only based on the D.N.A report has held that it is highly unsafe to convict a person only by relying upon the D.N.A test report and further held that the D.N.A result must be corroborated by the independent evidence
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 before the same can be relied upon ie., in the case of Nagappa Vs. State of Karnataka reported in 2019 SCC Online Kar 3880. Gujrat High Court in the case of Premjibhai Bachubhai Khasiya Vs. State of Gujarat & Anr. reported in 2009 SCC OnLine Guj 12076 has held as under:
"25. The science of DNA is at a developing stage and when the Random Occurrence Ratio is not available for Indian Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the accused in the offence."
18. Learned counsel for the appellant has contended that there is non compliance of guidelines for collection, storage and transportation of crime scene D.N.A samples by the Investigating Officers - Central Forensic Science Laboratory, Directorate of Forensic Sciences Services, Ministry of Home Affairs, Government of India. Learned counsel submitted that the said guidelines have
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 been taken into consideration by the Hon'ble Apex Court in the case of Prakash Nishad @ Kewat Zinak Nishad Vs. State of Maharashtra, reported in AIR 2023 SC Page 2938 and observed as under;
"59. As has been hitherto observed, there is no clarity of who took the samples of the appellant. In any event, record reveals that one set of samples taken on 14.6.2010 were sent for chemical analysis on 16.6.2010 and the second sample taken, a month later on 20.7.2010 is sent the very same day. Why there exist these differing degrees of promptitude in respect of similar, if not the same- natured scientific evidence, is unexplained.
60. We may observe that the Maharashtra Police Manual, when speaking of the integrity of scientific evidence in Appendix XXIV states-
"The integrity of exhibits and control samples must be safeguarded from the moment of seizure upto the completion of examination in the laboratory. This is best done by immediately packing, sealing and labeling and to prove the continuity of the integrity of the samples, the messenger or bearer will have to testify in Court that what he had received was sealed and delivered in the same condition in the laboratory. The laboratory must certify that they
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 have compared the seals and found them to be correct. Articles should always be kept apart from one another after packing them separately and contact be scrupulously avoided in transport also."
61. In the present case, the delay in sending the samples is unexplained and therefore, the possibility of contamination and the concomitant prospect of diminishment in value cannot be reasonably ruled out. On the need for expedition in ensuring that samples when collected are sent to the concerned laboratory as soon as possible, we may refer to "Guidelines for collection, storage and transportation of Crime Scene DNA samples For Investigating Officers-Central Forensic Science Laboratory Directorate Of Forensic Sciences Services Ministry Of Home Affairs, Govt. of India" which in particular reference to blood and semen, irrespective of its form, i.e. liquid or dry (crust/stain or spatter) records the sample so taken "Must be submitted in the laboratory without any delay."
62. The document also lays emphasis on the 'chain of custody' being maintained. Chain of custody implies that right from the time of taking of the sample, to the time its role in the investigation and processes subsequent, is complete, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 that the integrity is uncompromised. It is recommended that a document be duly maintained cataloguing the custody. A chain of custody document in other words is a document, "which should include name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, dated the items were collected or transferred, agency and case number, victim's or suspect's name and the brief description of the item.
63. Indisputably, these "without any delay" and "chain of custody" aspects which are indispensable to the vitality of such evidence, were not complied with. In such a situation, this Court cannot hold the DNA Report Ext.85 to be so dependable as to send someone to the gallows on this basis."
19. Even the Co-ordinating Bench of this Court in the case of Nagappa (supra), noting that the blood samples were not sent immediately and storage for more than six days would vary the final result and also considered that there is possibility of tampering the blood sample of the accused which creates a suspicion about the D.N.A report and held that it is unsafe to convict the accused only relying upon the D.N.A test report for the
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 offence under Section 376 of IPC. Learned counsel for the appellant has pointed out that PW5 - doctor has given the product of conception to the Investigating Officer on 01.07.2019 and the Investigating Officer sent the same on 02.07.2019 and they have been received in Forensic Science Laboratory, Bengaluru on 03.07.2019. The blood sample of the appellant - accused and the victim girl were collected on 01.08.2019 and sent to the Investigating Officer on 02.08.2019 and received in Forensic Science Laboratory, Bengaluru on 03.08.2019. He contended that the product of conception has to be stored in the ice as per the guidelines, but it was stored in the salt, which might affect the result of D.N.A test. The D.N.A paternity testing form has not been prepared. There is no evidence to show that how the product of conception has been stored in the Forensic Science Laboratory, Bengaluru between 03.07.2019 to 03.05.2020, the date on which the analysis of D.N.A was commenced. Even the blood sample of the appellant - accused and the victim were collected on 01.08.2019 by PW10 and they were sent on
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 02.08.2019 and received at Forensic Science Laboratory, Bengaluru on 03.08.2019. PW10 - doctor has not prepared the blood sample authentication as per the guidelines. PW9 - Investigating Officer has not prepared the chain of custody as per the guidelines. Therefore, in view of the above, without corroborating evidence of the victim girl and her mother, it is not safe to rely solely on the D.N.A report to hold that the appellant - accused has committed sexual intercourse on the victim girl. Even the victim girl - PW1 has not deposed anything regarding the appellant - accused having sexual intercourse on her. As observed above, the prosecution has failed to establish the age of the victim girl as required under Section 34 of the POCSO Act, Section 94 of the J.J.Act and Rule 12 of the J.J.Rules, 2007. Therefore, the Trial Court ought to have given the benefit of doubt to the appellant - accused and acquitted him for the offence under Section 6 of the POCSO Act. Sofar as the offence under Section 506 of IPC is concerned, there is no charge for the said offence. PWs.1 and 2 who are the victim girl and her mother have
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NC: 2024:KHC:2617 CRL.A No. 1445 of 2022 not deposed anything with regard to giving threat by the appellant - accused to the victim girl. Therefore, the Trial Court has erred in convicting the appellant - accused for the offence under Section 506 of IPC. In view of the above, the following;
ORDER The appeal is allowed. The judgment of conviction and order of sentence passed in Special Case No.125/2019 by the Additional District and Sessions Judge, F.T.S.C-II, Dakshina Kannada, Mangaluru dated 28.07.2022 is set-aside. The appellant - accused is acquitted of the offence under Section 6 of the POCSO Act and Section 506 of IPC.
Sd/-
JUDGE DSP,GH List No.: 1 Sl No.: 11