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Karnataka High Court

Mallappa @ Malleshappa S/O Siddappa ... vs State Of Karnataka on 10 January, 2024

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                                                   CRL.A No. 100207 of 2020



                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 10th DAY OF JANUARY, 2024

                                          PRESENT
                          THE HON'BLE MR JUSTICE ASHOK S. KINAGI
                                             AND
                            THE HON'BLE MR JUSTICE RAJESH RAI K
                           CRIMINAL APPEAL NO. 100207 OF 2020
                   BETWEEN:

                   MALLAPPA @ MALLESHAPPA S/O. SIDDAPPA
                   SHIRASANGI,
                   AGE: 35 YEARS, OCC: COOLIE,
                   R/O: KAUDIKALLAPUR,
                   TQ: AND DIST: HAVERI.
                                                                ...APPELLANT

                   (BY SRI. A.M. GUNDAWADE, ADVOCATE)

                   AND:

                   STATE OF KARNATAKA,
                   BY STATE PUBLIC PROSECUTOR,
                   HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH, AT DHARWAD
                   THROUGH HAVERI RURAL POLICE STATION.
Digitally signed
by                                                            ...RESPONDENT
SHIVAKUMAR
HIREMATH
Date:
2024.01.11         (BY SRI. PRAVEENA Y. DEVAREDDIYAVAR, HCGP;
10:45:05 +0530
                   SMT. ANURADHA DESHAPANDE AMICUS CURIAE         FOR   PW1
                   (VICTIM))

                        THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
                   CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE
                   THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
                   DATED 07.05.2020, PASSED AGAINST THE APPELLANT/ACCUSED
                   NO.1 IN SPL.S.C.CASE.NO.182/2017, BY ADDITIONAL DISTRICT
                   AND SESSIONS JUDGE AND SPECIAL JUDGE, AT HAVERI, FOR
                   THE OFFENCES UNDER SECTION U/SEC.448, 450, 376(2)(I) AND
                   (N) OF INDIAN PENAL CODE AND U/SEC. 4, 6, 8 AND 12 OF
                   POCSO ACT.
                            -2-
                                 CRL.A No. 100207 of 2020



       THIS APPEAL, COMING ON FOR HEARING HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI
K, J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal filed by the convicted accused directed against the Judgment and order of sentence passed in Spl. S.C. Case No.182/2017 dated 07.05.2020 passed by the I Additional District and Sessions Judge and Special Judge, Haveri, wherein, the learned Sessions Judge has convicted the accused No.1/appellant for the offences punishable under Sections 448, 450, 376 (2) (i) & (n) of IPC and Sections 4, 6, 8 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and sentenced him to undergo imprisonment for 10 years and to pay a fine of Rs.5,000/- and in default of payment of fine he shall undergo simple imprisonment for 01 month for the offence punishable under Section 450 of IPC, sentenced to imprisonment for life and to pay fine of Rs.10,000/- and in default of payment of fine he shall undergo simple imprisonment for a period of 06 months for the offences punishable under Section 6 of POCSO Act and also under Section 376 (2)(i) and 2(n) of IPC and -3- CRL.A No. 100207 of 2020 Section 4 of POCSO Act together with Section 6 of POCSO Act. The appellant is also sentenced to undergo imprisonment for a period of 05 years and to pay fine of Rs.2,000/- and in default of payment of fine he is subjected to undergo simple imprisonment for a period of 10 days for the offence punishable under Section 8 of POCSO Act and further he is also sentenced to undergo imprisonment for a period of 03 years and to pay fine of Rs.2,000/- and in default of payment of fine he shall undergo simple imprisonment for a period of 10 days for the offence punishable under Section 12 of POCSO Act. Learned sessions judge also has order that all the sentences shall run concurrently with the life sentence.

2. The apothegm addressed by the prosecution are that, the victim (P.W.1) in this case being a minor and resident of Kaudikallapur village, was staying in Girls' Pre- Metric Hostel situated in Haveri and used to visit her house frequently. It is in this background, the appellant/accused No.1 used to visit her house oftenly and was talking to her on the pretext that, he had vowed to -4- CRL.A No. 100207 of 2020 marry her and on that context he used to behave with her cordially and further, it is the case of the prosecution that, accused No.2, in criminal conspiracy with the accused No.1, involved the victim to indulge in a telephonic conversation with the accused No.1 through her cell phone in the absence of her family members at her house and on 20.11.2016 at about 12.00 p.m., when the victim was alone in her house, the appellant/accused No.1 deceitfully barged into her house with an intention to commit offence. Further with the knowledge that, the victim was a minor, accused No.1/appellant committed sexual assault on the victim. Subsequently, it was also the case of the prosecution that the appellant used to go to the house of victim by knowing about the fact that victim's being alone in the house, from the accused No.2. He was committing frequent sexual assaults on the victim and thereafter used to threaten her with dire consequences as to she informing the same to any person. On the date of last alleged incident i.e., on 17.03.2017 at about 2.30 p.m., when the victim was alone in her house, the accused came -5- CRL.A No. 100207 of 2020 to her house and committed forceful coitus as against the will of the victim. With the above background, a complaint at Ex.P.1 came to be lodged by the victim-girl before the respondent-police on 03.05.2017. Based on the said complaint, PW.8, the then PSI of the respondent-police, registered the FIR against the accused for the aforesaid offences as per Ex.P.19. Subsequently, P.W.9 the CPI who conducted the investigation by drawing spot mahazar and also recorded the statement of the victim-girl under Section 164 of Cr.P.C and thereafter, he arrested the accused and based on the voluntary statement of the accused, recovery is said to have been done at the instance of the accused and after obtaining necessary documents from the concerned authorities, P.W.10 laid the charge-sheet against the accused No.1 and 2 for the aforesaid offences. Pursuantly, the learned Special Judge framed charges against the accused for the aforesaid offences and read over the same to the accused and the accused denied the guilt and claimed to be tried. -6- CRL.A No. 100207 of 2020

3. In order to prove the charges leveled against the accused, the prosecution in total examined 10 witnesses before the Sessions Court as P.W.1 to P.W.10 and got marked 20 documents as Ex.P.1 to Ex.P.20 and 16 Material Objects as MO1 to MO16. After completion of the prosecution evidence, the learned Special Judge read over the incriminating evidence of the material witnesses to the accused as contemplated under the provisions of Section 313 of Cr.P.C. However, the accused denied the charges and did not choose to examine any witness on their behalf and also has not got marked any documents. During the course of cross-examination of P.W.1, the defence got marked 06 documents as per Ex.D1 to D6.

4. After assessment of the oral and documentary evidence adduced by the prosecution, the learned Special Judge was pleased to convict the accused No.1/Appellant for the charges leveled against him except for the offence punishable under Section 506 of IPC and acquitted the Accused No.2 for the offence punishable under Sections 109 and 120B of IPC in the impugned Judgment and -7- CRL.A No. 100207 of 2020 sentenced the Accused No.1/Appellant as stated above. The righteousness of which is challenged under this appeal.

5. This appeal was heard by the Co-ordinate Bench of this Court on 07.06.2022 and by invoking the powers under Section 391 of Cr.P.C., this Court, directed the prosecution to lead evidence regarding the proof of age of the victim-girl, with reference to the documents produced before this Court and accordingly, remanded the matter back to the Special Court, with a direction to record evidence adverting to the documents produced before this Court and also other original records with the liberty to examine concerned witnesses regarding the said documents within a time bound period of two months from the date of receipt of the copy of the said order. Thereafter, before the learned Sessions Court, the prosecution led evidence of P.W.11 i.e., Assistant Teacher of Government Primary School, Devihosur, in order to prove the age of the victim in respect of Ex.P.15 . Further, the prosecution also examined the Tahasildar of Haveri -8- CRL.A No. 100207 of 2020 Taluk and he, in his evidence, deposed in respect of non- availability of the Birth Certificate of the victim-girl as per Ex.P.21. Though the prosecution examined P.W.11 and produced SSLC marks card of the victim-girl, the said document remained unmarked as an Exhibit. Accordingly, after complying the directions of the Co-ordinate Bench of this Court, the file was sent back to this Court.

6. We have heard the learned counsel Sri. A.M.Gundawade, appearing for the appellant/accused No.1, Sri. Praveena Y. Devareddiyavar, learned HCGP for the State and Smt. Anuradha Deshpande, learned Amicus Curiae for victim i.e., P.W.1.

7. Learned counsel for the appellant would vehemently contend that, the Judgment under appeal totally suffers from perversity and illegality, the learned Sessions Judge failed to appreciate the evidences available on record, more particularly, the cross-examination of the victim-girl and her father P.W.2, wherein, they categorically admitted that the accused and the victim were in love and alleged act was a revel in furtherance of -9- CRL.A No. 100207 of 2020 the same. It is further contended that the prosecution has also totally failed to prove the age of the victim, that she was a minor at the time of the alleged incident. In such circumstance, it is the contention urged that the prosecution failed to prove the charges leveled against the accused for the offences punishable under Section 376 of IPC r/w the provisions of POCSO Act. He would further contend that, the learned Sessions Judge convicted the accused only based on the surmises and conjectures and suppositions and speculations by only relying on the denuded allegations made by the victim and her father. Learned counsel for the appellant urge that, except Ex.P.15 the certificate issued by P.W.11, Assistant Teacher who was examined after the directions issued by the Co- ordinate Bench of this Court, however, the said witness has failed to produce any Birth Certificate of the victim-girl which is vital to prove the prosecution case. As such, he would contend that there is absolutely no basis for issuance of Ex.P.15 by P.W.11, as the said document cannot be relied to prove the age of the victim, as per the

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settled principles of Hon'ble Apex Court. He would further contend that, the Tahasildar who examined in this case has categorically admitted about the non-availability of the birth certificate in the Revenue Department. To that effect, he issued Ex.P.21-report. In such circumstances, there is no authentic document to prove the age of the victim-girl. Learned counsel also contend that, though the prosecution has relied on the evidence of the Doctor i.e. P.W.5 who examined the victim, in her opinion, based on the dental age, she opined that, the age of the victim-girl is between 14 to 16 years, wherein, in the evidence of P.W.1 and P.W.2, they deposed that, the victim was aged about 15 years at the time of the incident. Hence, there is a total contradiction in respect of the age of the victim- girl. Hence, he would contend that the learned Sessions Judge has completely failed to appreciate the said aspect. Learned counsel also contends that, during the course of cross-examination of P.W.1, 06 documents were marked as per Ex.D1 to Ex.D6. Those documents are the letters written by the victim-girl to the accused. Those letters

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clearly depicts that the accused No.1 and the victim-girl were in love with each other. Nevertheless, P.W.1 in her cross-examination has categorically admitted that, she has herself scripted those letters addressing it to the accused No.1/appellant. In such circumstances, the prosecution has totally failed to prove that the accused has committed forceful coitus on the victim. He also contends that, since, the prosecution has failed to prove the age of the victim, she being the consenting party, the offence under the provision of 376 of IPC and offences under the provision of POCSO Act, does not attract against the accused. Accordingly, he prays to allow the appeal by setting aside the impugned Judgment.

8. On the other hand, learned HCGP would vehemently contend that, the Judgment under the appeal does not suffer from any perversity or illegality. He submits that, learned Sessions Judge after meticulously examining the evidence on record, passed the well reasoned Judgment. As such, absolutely there seems no reason to interfere with the findings recorded in the

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impugned Judgment. He would further contend that, on careful perusal of the evidence of P.W.1, the victim-girl and P.W.2 - father of the victim girl coupled with evidence of the Doctor i.e. P.W.5, the prosecution categorically proved that the accused has committed sexual assault on the victim by knowing-fully well that she was a minor. Hence, on these grounds he contends that the learned Sessions Judge has rightly convicted the accused for the aforesaid offences. He would also further contend that, the evidence of P.W.4 and P.W.11 further clarifies that, the victim was aged about 15 years at the time of alleged incident. Learned HCGP emphasized his arguments by relying Ex.P.15, the certificate issued by the School Authority. Hence, according to him, on the conjoint reading of Ex.P.11 and Ex.P.15, it can be easily concluded that, the victim was a minor at the time of the alleged incident. According to the learned HCGP, once the prosecution is able to prove that the victim was a minor at the time of the incident, then her consent cannot be

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termed as a legal consent. Hence, he prays to dismiss the appeal.

9. Having heard the learned counsel for the appellant/accused No.1, so also learned HCGP and on careful perusal of the evidence and documents available on record including the trial Court records, the points that would arise for our consideration are:

(i) Whether the Judgment under this appeal suffers from perversity or illegality?

(ii) Whether the learned Sessions Judge is justified in convicting the appellant/accused No.1 for the offences punishable under Sections 448, 450, 376 (2)(a)(i) and (n) of IPC and Sections 4, 6, 8 and 12 of the POCSO Act.?

10. Point Nos.1 and 2 are interlinked with each other. Hence, they are taken up together for common discussion in order to avoid repetition of facts.

11. On a cursory glance of the evidence deposed by the witnesses before the trial Court, P.W.1 the victim who lodged the complaint as per Ex.P.1, reiterated the version of Ex.P.1-complaint and deposed that the accused on the

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pretext of marrying her, had committed forceful coitus on her several times and on several occasions and as such, she has lodged the complaint against him as per Ex.P.1.

P.W.2 the father of the victim-girl deposed that, his daughter informed her about the forceful sexual act committed by the accused on her. Posteriorly, he took her to the jurisdictional police station and lodged the complaint.

Further, P.W.3 was a witness for the spot mahazar drawn on 06.05.2017 as per Ex.P.2 and he has identified the signature on Ex.P.2.

P.W.4 is the Assistant Teacher of the Government Primary School, Haveri and has deposed that, P.W.1 informed her that the accused was shadowing her and as such she informed the said aspect to the Warden of the Hostel, where the victim-girl was staying.

P.W.5 - Doctor who examined the victim and issued her preliminary medical report as per Ex.P.9 and also identified the FSL report as per Ex.P.10 and based on

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Ex.P.10, she has also proffered her final opinion as per Ex.P.11. Wherein, in the final opinion rendered, she opined that "evidence of sign of recent sexual intercourse is absent".

P.W.6 is an independent witness who is residing in the same village where P.W.2 is residing and deposed that, P.W.2 informed him about the love affair of accused and the victim and also requested him to perform the marriage of the accused with the victim-girl.

P.W.7 the then Woman Police Sub-Inspector at Haveri Police recorded the statement of victim at the Government Hospital. P.W.8, is the then Police Sub- Inspector of Haveri Police Station, who received the complaint from P.W.1 and registered the FIR in Crime No.66/2017 against the appellant and another. P.W.9 is the then Circle Police Inspector of the Haveri Rural Circle conducted the further investigation and arrested the appellant and recorded his voluntary statement and also drawn the spot mahazar and seizure mahazar. P.W.10 is the then in-charge CPI of Haveri who conducted further

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investigation and after obtaining FSL report, also has laid the charge-sheet against the accused.

12. On careful perusal of the above evidences available on record, in order to prove the charges leveled against the accused, the prosecution mainly relied on the evidence of P.W.1 - victim girl and P.W.2 her father. It is the case of the prosecution that, at the time of the alleged incident, the victim-girl was aged about 15 years. In order to prove the age of the victim, the prosecution has relied on Ex.P.15 i.e., School Certificate issued by the Head Master.

13. The prosecution examined P.W.11 i.e., Author of Ex.P.15, pursuant to the direction issued by the Co- ordinate Bench of this Court. However, on perusal of the evidence of P.W.11, he has stated that, he had issued Ex.P.15 based on the School Register. Hence, it could be gathered that, Ex.P.15 was not issued based on the Birth Certificate of the victim-girl. Even otherwise, the prosecution has failed to produce the Birth Certificate of the victim girl, issued by the Competent Authority.

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Further, as per the directions of this Court, the Tahasildar of the concerned Taluk was examined in order to ascertain the age of the victim-girl. However, he has categorically deposed in respect of non-availability of the Birth Certificate of the victim, he issued report to that effect as per Ex.P.21. In such situation, the prosecution failed to produce authenticated document to prove the age of the victim girl. Hence, we are of the considered opinion that, Ex.P.15 issued by P.W.11 is only based on the oral say of the parents of the victim-girl. Further, the prosecution has relied upon the evidence tendered by P.W.5 - Doctor and her report at Ex.P.11, wherein, the Doctor has also opined that, the victim's age is between 14 to 16 years by examining her dental age. Hence, there is a contradiction in respect of the age of the victim girl on the Medical Evidence and the School Certificate. The Hon'ble Apex Court interpreting the provisions of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015, in the case of P. Yuvaprakash v. State, reported in 2023 SCC OnLine SC 846 held that,

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"14. 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 concerned examination board 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 concerned authority, i.e. Committee or Board or Court........"

(Emphasis supplied by us) Admittedly, in the case on hand, the prosecution has failed to produce the Birth Certificate of the victim-girl and original Transfer Certificate or the SSLC Marks Card. The prosecution has also failed to conduct ossification test of the victim-girl to determine her age.

14. Further, the Hon'ble Apex Court in the case of Vinod Katara Vs. State of Uttar Pradesh, reported in 2022 SCC Online SC 1204 at paragraph Nos.57 to 60 has held as under:

"57. The bone ossification test (hereinafter "ossification test") is a test that determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the

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bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an Individual which assists in the determination of age. The most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive.

58. The 2015 Act under Section 94(2)(iii) read with Rule 12(3) of the 2007 Rules provides the legislative sanction for the conduct of ossification test or other medical age determination test available in the absence of other documentary proof of age i.e. matriculation certificate or birth certificate, which has to be given within 15 days from the date of such order. The test is to be conducted by the Child Welfare Committee (CWC). The provision mentioned herein is the basis for determining the age of a child under the 2000 Act which even includes a child who is a victim of crime in addition to a child in conflict with the law.

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59. In Vishnu v. State of Maharashtra, (2006) 1 SCC 283, this Court clarified that the ossification test by the medical officer is to assist the court which falls under the ambit of medical expert opinion i.e., advisory in nature and not binding.

However, such an opinion cannot override ocular or documentary evidence, which has been proved to be true and admissible as they constitute "statement of facts". This Court in Vishnu (supra) placed reliance on Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, to hold that a medical witness is not a witness of fact therefore the opinion rendered by such a medical expert is merely advisory until accepted by the Court, however, once accepted, they become the opinion of the Court.

Margin of error principle

60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681: (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223: (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination

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leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt."

(Emphasis supplied by us) The Hon'ble Apex Court in the above said Judgment has held that, the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test, irrespective of whether the ossification test of multiple joints is conducted or not. In the case on hand, on perusal of the records made available, we find that the prosecution has failed to prove the age of the victim, that she was minor at the time incident, either by producing the authenticated documents like Birth Certificate, or Transfer certificate nor by conducting ossification test. The report issued by the Doctor i.e., Ex.P.9 depicts that, the age of the victim-girl was between 14 to 16 years at the time of the alleged

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incident. The same was based on the dental examination of the Victim-girl. As per the settled principles laid down by the Hon'ble Supreme Court supra, if the victim-girl was considered to be of 16 years of age as per Ex.P.9, then two years margin can be extended on either side.

15. Further, Co-ordinate Bench of this Court in the case of Haji Kareem Vs. State of Karnataka, through Chittapur P.S., reported in 2021 SCC Online Kar. 15914 has also opined that in the absence of any authenticated certificate proving age of the victim-girl, same can be determined by examining the victim girl through a radiological or dental examination (i.e., in the absence of birth certificate or SSLC marks card). Admittedly, in the case on hand, the prosecution has failed to produce the Birth Certificate or SSLC Marks Card and the prosecution has also failed to examine the Radiologist or Dentist.

16. Further, the Hon'ble Apex Court in the case of K.P.Thimmappa Gowda Vs. State of Karnataka, reported in (2011) 14 SCC 475, in paragraph Nos.4 to 6

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of the Order has held that offence under Section 376 of Indian Penal Code cannot be called for, as the coitus with the human above the age of 16 years with consent is not rape. In the case on hand, while considering the evidence of Doctor i.e. P.W.5 and the certificate at Ex.P.9, the age of the victim is 16 years. In such circumstances, looking into the merits of the appeal so also the circumventing event that has lead to the alleged crime, we are of the congruent opinion that the prosecution has failed to prove age of the victim girl that she was minor at the time of alleged incident.

17. As far as the evidence of the victim-girl i.e., P.W.1 and father of the victim-girl i.e., P.W.2 are concerned, their evidence does not inspire confidence of this Court, since there are material contradictions in their evidence and the complaint lodged by P.W.1 as per Ex.P.1. Nevertheless, on careful perusal of Ex.D.1 to Ex.D.6 marked during the course of cross-examination of P.W.1, clearly depicts that, the accused and the victim-girl were in love, prior to the incident and they both used to

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exchange love letters and also they occasionally meet each other in the absence of elders. In such circumstances, it can be easily concluded that, the victim- girl was acceding party and since the prosecution has failed to prove that the victim-girl was minor at the time of incident, the reasoning drawn by the learned Sessions Judge to prove the charges leveled against the accused cannot be accepted. The Hon'ble Apex Court in the Judgment rendered in the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi), reported in (2012) 8 SCC 21, referring to the Judgment in Krishan Kumar Malik Vs. State of Haryana, reported in (2011) 7 SCC 130, has held that in the cases involving forceful sexual coitus, the Court can rely on the sole witness of the prosecutrix provided, the same can only be relied upon when the evidence circumvents the rigors and also inspires confidence on this Court as to its trustworthiness, unblemished and also the same shall be of sterling quality. On careful perusal of the evidence of P.W.1-victim girl and her father P.W.2, it is difficult to act on their testimonies

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and to cast the vote, since, their testimony does not inspire any confidence and is hereby for the reasons aforesaid found to be not reliable. It is on these footings, we are of the congruence that the evidence of P.W.1 does not pass the test of sterling quality as propounded by the Hon'ble Apex Court in the Judgment cited supra.

18. Ex.P.9 i.e., certificate issued by P.W.5 the Doctor who examined P.W.1, gave a final opinion that, on local genital examination, "evidence of sign of recent sexual intercourse is absent". He further opined that, the "individual is used to an act like of that sexual intercourse". Even on perusal of the RFSL certificate marked as per Ex.P.10 in the evidence of P.W.5, the Doctor has stated that, "seminal stains were not detected on the item Nos.1 to 5 and 7 to 15, skin tissue was not detected on item Nos.6 and 16, blood stains were not detected on item Nos.1, 2, 3 and 4". In such circumstances, it cannot be concluded that, the contents of Ex.P.1 i.e., complaint lodged by the P.W.1 is a gospel truth for the reason that, according to her on 17.03.2017

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at about 2.30 p.m., the accused came to the house of the victim-girl and committed rape on her. The Doctor examined the victim-girl on 03.05.2017 at about 7.50 p.m. and opined that, there was no recent sexual act. Admittedly, there are no other injuries found on the body of the victim-girl. Even P.W.2, in his evidence has categorically admitted that, there is a delay in lodging the complaint and while lodging the complaint, he has invited the media personnel to the concerned police station. Further, it is observed in the evidence of P.W.2 also that, there was a political rivalry between the family of the accused and the family of the victim girl. In such circumstances, the evidence of P.W.2 also does not inspire confidence of this Court. Though P.W.6 is an independent witness, he partly turned hostile to the prosecution case. In such circumstances, the learned Sessions Judge convicted the accused only based on the evidence of P.W.1 and P.W.2, which does not holds good for the aforesaid reasons.

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19. The learned Sessions Judge also has failed to appreciate the above material aspects and in such circumstances, the impugned Judgment is liable to be set aside. Accordingly, we answer point No.1 in the affirmative and point No.2 in the negative and proceed to pass the following:-

ORDER

(i) The appeal filed by the accused is allowed;

(ii) The impugned Judgment and order of sentence dated 07.05.2020 passed by the Sessions Court in Special S.C. Case No.182/2017 for the offences punishable under Sections 448, 450, 376(2)(i) & (n) of IPC and Sections 4, 6, 8 and 12 of the POCSO Act, is set aside;

(iii) The Appellant/accused No.1 is acquitted from the charges for the offence under Section 448, 450, 376(2)(i) & (n) of IPC and Sections 4, 6, 8 and 12 of the POCSO Act;

(iv) Fine amount is paid, if any, by the accused shall be refunded to the accused;

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                                             CRL.A No. 100207 of 2020




        (v)     The Jail authorities i.e., Superintendent of
                Central   Prison,     Dharwad     is   directed   to

release the accused forthwith, if he is not required in any other cases.

(vi) This Court vide order dated 10.01.2023, appointed learned counsel Smt. Anuradha R. Deshpande, as Amicus Curia for the alleged victim-girl/P.W.1. Hence, a sum of Rs.25,000/- is fixed as fees for the services rendered by the Amicus Curia. The legal services authority is directed to pay a sum of Rs.25,000/- as fees in favour Smt. Anuradha R. Deshpande, Amicus Curia, appearing for the alleged victim-girl.

Sd/-

JUDGE Sd/-

JUDGE SVH LIST NO.: 1 SL NO.: 46