Karnataka High Court
Shekhar vs State Of Karnataka on 23 September, 2021
1 CRL.A.No.578/2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.578/2015
BETWEEN:
SHEKHAR
S/O BASAPPA BHUJANGE,
AGE: 27 YEARS,
OCC: DRIVER,
R/O: KUMBARWADA,
BIDAR-585403. ... APPELLANT
(By SRI. NANDKISHORE BOOB, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH THE POLICE SANTHAPUR,
BIDAR POLICE STATION, BIDAR,
REPT. BY ITS SPP
HIGH COURT OF KARNATAKA. ... RESPONDENT
(By SRI. GURURAJ V. HASILKAR, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO ALLOW THE APPEAL OF
THE APPELLANT AND SET ASIDE THE JUDGMENT AND
ORDER PASSED BY THE PRINCIPAL DISTRICT & SESSIONS
JUDGE CONCURRENT CHARGE OF ADDITIONAL DISTRICT
& SESSIONS JUDGE, BIDAR AND SPECIAL JUDGE (POCSO
ACT) IN SPL. CASE NO.48/2014 DATED 06.04.2015 AND
ORDER OF SENTENCE PASSED ON 10.04.2015 FOR THE
2 CRL.A.No.578/2015
OFFENCES PUNISHABLE U/S 366, 376 OF IPC AND U/S 4 &
6 OF POCSO ACT 2012 AND ACQUIT THE APPELLANT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 02.09.2021, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/accused has filed this appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short), 1973, challenging his conviction and sentence for the offences punishable under Sections 366, 376 of the Indian Penal Code (hereinafter referred to as 'IPC' for short) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act' for short), 2012.
2. For the sake of convenience, the parties are referred to their ranks before the Trial Court.
3. The charge sheet came to be filed against the accused for the offences punishable under Sections 354A, 366, 376 of IPC read with Sections 4, 5 and 6 of POCSO Act.
3 CRL.A.No.578/2015
4. It is alleged that accused who is a married person was staying along with his wife and children in Kumbarwada, Bidar, where the prosecutrix who was minor was living along with her parents and siblings. Since about 4-5 months prior to the date of incident, accused was pestering the prosecutrix saying that he is in love with her and that he would marry her. About two months prior to the filing of the complaint, accused enticed the prosecutrix and took her to the house of CW.8 and committed rape on her. On 22.07.2014 while the prosecutrix was at her grandmother's house at Santapur and was sleeping outside the house along with her grandmother and others, accused went there, woke her up by throwing a small stone and took her near 7th day Church and committed rape on her and thereby committed the offences punishable under Sections 354A, 366 and 376 of IPC r/w Sections 4, 5(m) and 6 of POCSO Act, 2012.
5. In respect of the incident dated 22.7.2014 the complaint is lodged by Smt.Hullabai, the grandmother of prosecutrix on 23.07.2014. Based on it, the case is 4 CRL.A.No.578/2015 registered in Crime No.98/2014 for the offences punishable under Sections 354A and 366 of IPC. During the course of investigation, the accused was arrested. Both the prosecutrix and accused were subjected to medical examination. The material objects namely clothes of the prosecutrix as well as the accused were subjected to chemical examination. The statement of the prosecutrix is recorded by the Investigating Officer as well as through the Judicial Magistrate under Section 164 of Cr.P.C. After recording the statements of the material witnesses and on completing the investigation, charge sheet is filed against the accused. Throughout the proceedings before the trial Court, the accused was in judicial custody. Charge is framed for the offences punishable under Sections 366, 376 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act, 2012' for short). The accused pleaded not guilty and claimed to be tried.
6. In support of the prosecution case in all 20 witnesses are examined as PWs.1 to 20 and Ex.P1 to 25 5 CRL.A.No.578/2015 are marked. Ex.P16 and Ex.P17 are marked twice and material objects are marked at MOs.1 to 15.
7. During the course of his statement under Section 313 of Cr.P.C. the accused has denied the incriminating material arising in the evidence of the prosecution witnesses.
8. Accused has not led any defence evidence on his behalf.
9. After hearing the arguments from both side, the learned trial judge has convicted the accused for the offences punishable under Sections 366, 376 of IPC and Section 4 and 6 of the POCSO Act 2012.
10. During the course of argument, the learned counsel representing the accused submitted that the impugned judgment and order of sentence is illegal, arbitrary and against the principles of natural justice. He would submit that the impugned judgment is perverse being against the oral and documentary evidence on record. He further submitted that even though the 6 CRL.A.No.578/2015 prosecutrix as well as her parents i.e. PWs.7 and 8, her grand mother PW6 have not supported the prosecution case, the learned trial judge has proceeded to convict the accused.
11. He would further submit that the judgment of the trial court is not based on sound legal principles. He has not appreciated the evidence on record in proper perspective and the conviction is based on assumption and presumptions. The trial court has erred in holding that the accused persons might have been pressurized the prosecutrix and as such she has turned hostile. This observation is based on presumption and assumption and it has no basis.
12. The learned counsel further argued that as on the date of the alleged incident, even though the prosecutrix is aged more than 18 years, the trial court has not appreciated the evidence on that aspect and in the absence of evidence to the contrary has come to a wrong conclusion that she was aged 16 years. The prosecution has failed to establish that as on the date of alleged 7 CRL.A.No.578/2015 incident, the prosecutrix was below the age of 18 years. He would further submit that the findings of the trial court is contrary to the medical evidence. In the absence of medical evidence and in the light of the material witnesses having turned hostile, the trial court has erred in convicting the accused and prays to allow the appeal and acquit the accused of all the charges.
13. On the other hand, learned Addl. SPP submitted that after considering the oral and documentary evidence in proper perspective the learned trial Judge has rightly convicted the accused and sentenced him appropriately and prays to dismiss the appeal.
14. Heard the arguments of learned counsel representing the appellant as well as learned Addl. SPP and perused the records.
15. According to the prosecution as on the date of the incident, the prosecutrix was below the age of 18 years and as such, coming under the definition of child under the 8 CRL.A.No.578/2015 POCSO Act. Therefore, the provisions of the POCSO Act are applicable.
16. On the other hand, the defence has taken up a specific contention that as on the date of the alleged incident, the prosecutrix was major and as such, the provisions of POCSO Act, 2012 are not attracted. It is further contention of the defence that even where the alleged sexual intercourse has taken place between the accused and the prosecutrix, having regard to the fact that the prosecutrix was major, she was consenting party. In the light of the specific defence taken by the accused, the burden is on the prosecution to prove that as on the date of the incident, the prosecutrix was below the age of 18 years.
17. According to the prosecution, the accused enticed the prosecutrix and had forcible sexual intercourse with her twice. The second incident being dated 22.07.2014, the complaint is lodged by the grandmother of the prosecutrix, namely, Hullabai, who is examined as PW.6. The complaint filed by her is marked as Ex.P4, 9 CRL.A.No.578/2015 wherein she has not stated the fact that prosecutrix is a minor. Consequently, the case was registered for the offences punishable under Sections 366 and 354A of IPC. The Investigating Officer has also recorded the statement of the prosecutrix on 23.07.2014 at Government Hospital, Aurad, wherein she has given her age as 18 years.
18. The Investigating Officer has also got the statement of prosecutrix recorded before the Judicial Magistrate as per Ex.P1 dated 26.07.2014, wherein she has given her age as 19 years. While giving evidence before the Court also, which is recorded on 26.11.2014. the prosecutrix has given her age as 19 years. While giving the requisition at Ex.P8 for medical examination of the prosecutrix, the Investigating Officer has also requested the Medical Officer to determine the age of the prosecutrix. In her report at Ex.P9 the Medical Officer i.e. PW.9- Dr.Gayatri has stated that the prosecutrix is aged between 18 to 19 years.
19. During the course of investigation, the Investigating Officer has collected certificate at Ex.P13 10 CRL.A.No.578/2015 regarding the entry of date of birth of prosecutrix in the Admission Register of Smt.Ittamma Rayappa Ballur Higher Primary School, Kumbarwada, Bidar, where the prosecutrix allegedly studied. PW.12-Rachayya Swami is the Head Master of the said school. During the course of his evidence, he has deposed that he has issued this document based on the entries made in the school records. According to this document, the date of birth of the prosecutrix is 20.03.1998. If the entry in the Admission Register is taken into consideration, then, prosecutrix was aged 16 years 5 months on 22.07.2014. Admittedly, while giving the evidence this witness has not produced the school admission register based on which Ex.P13 is issued. As per the evidence of this witness the entry regarding the date of birth of prosecutrix was made based on the information furnished by her mother. It is not the case of the prosecution that PW.12 was the one who made entry in the said register. Admittedly, the one who has made entry is not cited as witness and examined before the Court. Moreover, there is no evidence as to which class the prosecutrix was admitted as per admission No.02/02-03. If 11 CRL.A.No.578/2015 the date of birth of prosecutrix is taken as 20.03.1998, during the year 2002-03, when she was supposed to have admitted to the school she was aged about 4-5 years. For admission to 1st standard child is required to complete 5 years 10 months.
20. At this stage, it is relevant to refer to the decision of the Hon'ble Supreme Court in the matter of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another reported in (2013) 14 SCC 637. In this decision, the Hon'ble Supreme Court making reference to the statutory provisions contained in the Juvenile Justice (Care and Protection) Rules, 2007 (hereinafter referred to as 'Rules, 2007' for short), wherein under Rule 12, the procedure to be followed in determining age of the juvenile have been set out, held that in every case concerning a child or juvenile in conflict with the law, the age determination enquiry shall be conducted by the Court or the Board or, as the case may be, by the committee seeking evidence by obtaining:
12 CRL.A.No.578/2015
a(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 municipal authority or a Panchayat.
21. The Juvenile Justice Act is amended in 2015 i.e., Juvenile Justice (Care and Protection) Act 2015 (hereinafter referred to as 'Act, 2015' for short). The State Government has not framed the Rules. But, the procedure for determining age of the juvenile is incorporated in Section 94 of the Act, 2015.
22. However, in case of Sanjeevkumar Gupta vs. State of Uttar Pradesh and another, reported in (2019) 12 SCC 370, the Hon'ble Supreme Court while deciding the claim of juvenility of the accused in a criminal trial held that Section 7A of Act, 2000 provides the procedure to be followed when a claim of juvenility is 13 CRL.A.No.578/2015 raised before a Court. Upon a claim being raised that an accused was juvenile on the date of commission of the offence, the Court is required to make an enquiry, take evidence and to determine the age of the person. The Court has to record a finding whether the person is a juvenile or a child, stating the age as nearly as may be. Rule 12(3) of Rules, 2007 contains a procedural provision governing the determination of age by the Court or by the Board. On appreciation of the facts the Hon'ble Supreme Court rejected the entry in the matriculation certificate and by considering the voluntary disclosure made by the accused while obtaining both Aadhaar Card and driving licence, held that the accused was not a juvenile as on the date of the commission of the offence.
23. Similar view is taken by the Full Bench of the Hon'ble Supreme Court in Crl.A.No.175/2021 in the case of Ramvijay Singh Vs. State of Uttar Pradesh. In this decision also the accused has taken the plea of juvenility. Referring to Rule 7A of Act, 2000 and Section 94 of the Act, 2015, wherein procedure for determining the age of a 14 CRL.A.No.578/2015 child in conflict with law is incorporated, the Hon'ble Supreme Court observed that the procedure prescribed in Rule 12 of Rules, 2007, is not materially different than the provisions of Section 94 of Act, 2015, to determine the age of the person. There are minor variations as the Rule 12(3)(a)(i) and (ii) having clubbed together with slight change in the language. Section 94 of the Act, 2015, does not contain the provision regarding the benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules, 2007. At para-16 of the judgment the Hon'ble Supreme Court held that the Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section 2 of Section 94 of the Act, 2015 are either not available or are not found to be reliable and trustworthy.
24. Thus, in view of the above three referred judgments of the Hon'ble Supreme Court, the procedure contemplated under Rule 12 of Rules, 2007 and Section 94 of the Act, 2015, are only directory and the Court may 15 CRL.A.No.578/2015 examine any other evidence including the documents referred to in Rule 12 of Rules, 2007 which is synonym with Section 94 of the Act, 2015, and determine the age of the juvenile or a victim under POCSO Act.
25. Moreover, as discussed earlier, the date of birth certificate issued by the school where the prosecutrix allegedly studied primary school is not proved in accordance with law. The person who has made the entry in the said register is not examined. Since, at the time of alleged incident, the prosecutrix has completed II PUC and was pursuing Diploma in Education, the SSLC marks card would have clinched the issue. For reasons best known to the Prosecution, the said document is not placed on record. If the entry in the SSLC marks card had tallied with the date of birth as stated in Ex.P.13, it would have corroborated the case of prosecution. In the absence of SSLC marks card / certificate and the prosecution having failed to prove Ex.P13 in accordance with law and in view of the age of the prosecutrix as given in the complaint, statement of prosecutrix before the Investigating Officer as 16 CRL.A.No.578/2015 well as before the Judicial Magistrate, who has recorded her statement under Section 164 Cr.P.C and the age of the prosecutrix, as given by her mother and her grand mother, I hold that the age of the prosecutrix as stated in the medical certificate is to be taken into consideration. The medical certificate at Ex.P9 states that at the time of her examining she was aged 18 to 19 years. This also corroborate with the statement of the prosecutrix as well as her mother and grand mother that at the time of incident, she had completed 18 years. Consequently, at the time of incident, the age of prosecutrix is taken as having completed 18 years and as such was a major. Therefore, the provisions of POCSO Act are not attracted.
26. When the provisions of POCSO Act are not attracted, this Court is left to examine whether the offence punishable under Sections 366 and 376 of IPC are made out against the accused.
27. It is definite case of the prosecution that two months prior to 22.07.2014 accused who is a married person having children used to eve tease the prosecutrix. 17 CRL.A.No.578/2015 It is alleged that with a request to guide his sister about the college in which she was studying PUC, as his niece is intending to take admission, accused took the prosecutrix to the house of his sister. However, no one was present in the house and after sometime, he locked the main door and committed rape on her and he gave threat not to disclose the same as he has videographed the incident. It is further case of the prosecution that after the said incident, accused started harassing the prosecutrix and to prevent the said harassment, prosecutrix went to her grand mother's house at Santapur, but accused followed her to Santapur also and on 22.07.2014 while she along with her grand mother and others was sleeping outside the house, accused came there, woke up her by throwing a small stone and took her near 7th day Church and there he committed rape on her - forcibly and against her will and while they were returning, the beat police met them and her grand mother also came in search of her and after coming to know about the incident, the police took the accused to the police station while she returned with her grand mother. In respect of the incident, the grand 18 CRL.A.No.578/2015 mother of the prosecutrix has filed the complaint. In addition to the Investigating Officer recording the statement of the prosecutrix, at the request of the police, her statement is also recorded under Section 164 of Cr.PC by the Judicial Magistrate.
28. It is relevant to note that before the trial court all the material witnesses including the grand mother, parents as well as the prosecutrix have turned hostile. PW.6 Hullabai the grand mother of the prosecutrix has denied that on 22.07.2014 her grand daughter i.e. prosecutrix had come to her home and she went missing and when she went in search of her, the prosecutrix was found in the company of accused and in this regard she has lodged the complaint. Similarly, PW.7-Sham the father and PW.8 Sunita the mother of the prosecutrix have denied that the accused raped the prosecutrix twice and they came to know about it through the prosecutrix.
29. The prosecutrix was examined as PW1. At one breath she has deposed that on 22.07.2014 near the Church and about two months prior to 22.07.2014 at the 19 CRL.A.No.578/2015 house of his sister, accused committed rape on her against her consent. She has stated that in this regard the Judicial Magistrate has recorded her statement. However, during the course of cross examination she has deposed that while she gave statement before the Magistrate, her grand mother tutored her as to how the statement should be given and accordingly she has given the statement. She has also deposed that except having seen the accused at the Santapur police station, she has no information about him. She has also deposed that even with regard to the alleged rape committed by the accused, she has given evidence as tutored by her grand mother. Once again she states that she gave evidence as directed by the Santapur police. In her re-examination by the prosecution, she has deposed that the allegations that the accused took her to his sister's house and committed rape and that he took her near the Church and committed rape on her are false.
30. At this stage, she was treated hostile and cross-examined by prosecution, wherein she has denied that her evidence in the examination-in-chief is voluntary 20 CRL.A.No.578/2015 and it was not at the behest of any person. She has also deposed that before the Magistrate she has stated as though it is her voluntary statement. Examining the evidence of the prosecutrix makes it evident that she is most unreliable witness. She has no regard for truth and no reliance could be placed in her evidence, especially when her evidence is not corroborated and supported by any other witnesses.
31. PW.10 - Hullur Hemlata Basappa, Judicial Magistrate of First Class has recorded the statement the prosecutrix under Section 164 of Cr.P.C. She has given evidence to that effect and stated that before recording her evidence, she enquired whether the prosecutrix is giving the statement voluntary or is there any pressure from any one to give the statement. She has also deposed that the prosecutrix has given statement voluntarily and she has recorded it as per Ex.P1. During her cross- examination PW.10 has deposed that before recording statement of the prosecutrix she did not administer oath. 21 CRL.A.No.578/2015
32. The learned Sessions Judge has relied upon the evidence of PW-10 and swayed away by the fact that she has recorded the statement of the prosecutrix under Section 164 of Cr.P.C and come to the conclusion that the statement in question is proved despite of the fact that prosecutrix has not stood by her statement given before the PW-10 or before the Investigating Officer. He has observed that since the statement was recorded within 3 days of the incident and it corroborates with the examination-in-chief of PW1 and therefore reliance could be placed on it. As already discussed, prosecutrix has not at all which stood by her statement under Section 164 as well as under Section 161 of Cr.PC. She is most unreliable witness and she is not ready to stand by her statement given during examination-in-chief or cross-examination. She goes on changing her version from time to time and ultimately stated that her statement before the police as well as before the JMFC were tutored by her grand mother. Such being the case, the prosecution has failed to prove the allegations against the accused through the testimony 22 CRL.A.No.578/2015 of the prosecutrix and her evidence is not corroborated by her statements under Sections 161 and 164 of Cr.PC.
33. A statement under Section 164 of Cr.PC is not a substantive peace of evidence. It is a statement similar to the one recorded under Section 161 Cr.PC by the Investigating Officer. The only difference is that a statement under Section 164 Cr.PC is recorded by a Magistrate. At the most it may give a guarantee that a Judicial Magistrate, unlike an Investigating Officer is not interested in the out come of the case and he / she will be a neutral person and therefore has not influenced the witness while giving the statement. However, this will not absolve the responsibility of prosecution to prove the contents of such statement as any other statement given before the police. Therefore, unless and until the contents of the statement under Section 164 of Cr.PC are proved either by the witness or through any other supporting evidence, it cannot be held that such a statement is proved merely because the learned Magistrate who has 23 CRL.A.No.578/2015 recorded it has appeared before the Court and given evidence.
34. In this regard, in the Full bench decision of the Hon'ble Supreme Court, reported in AIR 1960 SC 490 in the matter of State of Delhi V/s Shri Ram Lohia, held that the statements recorded under Section 164 Cr.PC is not a substantive evidence in a case and cannot be made use of except to corroborate or contradict a witness. An admission by a witness that a statement of his was recorded under Section 164 of Cr.PC and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case. A judge commits an error of law in using the statement of the witness under Section 164 as a substantive evidence in coming to the conclusion that the witness has been won over. Similar view is taken in AIR 1972 SC 468, in the matter of Ramkishan Singh Vs/ Harmit Kaur and others, ILR 2006 Kar 4632 and Crl.A.No.158/2003 (Madras High Court.
24 CRL.A.No.578/2015
35. In the absence of evidence of the prosecutrix as well as her parents and grand mother supporting the case of the prosecution, the statement under Section 164 of Cr.P.C and the evidence of PW-10 is not sufficient to hold that the charges leveled against the accused are proved beyond reasonable doubt.
36. Now coming to the medical evidence. PW9- Dr.Gayatri has examined the prosecutrix and given report at Ex.P9. The victim is examined on 23.07.2014 at about 3.30 p.m. The report at Ex.P9 is to the following effect.
1) The age of Victim was 18 to 19 years.
2) The victim is able to perform Sexual
intercourse.
3) Victim had experienced sexual intercourse.
4) There is no forceful Sexual intercourse and no
injuries found on the private part and Public hairs were collected.
5) No incriminating material found in the nails of the victim and nails were collected.
25 CRL.A.No.578/2015
6) No blood stain on the private part and blood group is B+.
7) Her mental status is normal.
37. Perusal of Ex.P9 makes it evident that there was no evidence of forcible sexual intercourse and no injuries were found on the person of prosecutrix including her private part. According to the prosecution on 22.07.2014 at around 11.00 p.m. accused committed forcible sexual intercourse with the prosecutrix in the open area outside the Church and during the cross-examination of the police constable who apprehended the accused and the prosecutrix immediately after the incident disclose that the said place consists of rough ground and thorns. The medical evidence also belies the case of the prosecution that few hours prior to the lodging of the complaint, accused committed rape on the prosecutrix against her will.
38. The conduct of the prosecutrix after both the incidents of accused allegedly sexually assaulting her is inconsistent with the allegations made by her. So far as 26 CRL.A.No.578/2015 the first incident is concerned, after the alleged rape committed by the accused, the prosecutrix has not raised any hue and cry. She has not informed her parents and relatives about the alleged incident. After the said incident, the prosecutrix has alleged that accused used to eve tease her and unable to bare the harassment, she had to go to her grand mother's place at Santapur and there also he followed her. If the first incident in question had taken place without consent of the prosecutrix, it is very unnatural for her to respond to accused, that too when she was sleeping outside the house along with her grand mother and others and go with him to the secluded place. There also she has not made any attempt to run away from the accused as it was a open area. Even after the alleged second incident of rape committed by the accused against her will, she has not raised any hue and cry. On the other hand, beat police has found both of them moving together.
39. Only after the police questioned her presence at the wee hour, she has chosen to make allegation 27 CRL.A.No.578/2015 against the accused. The testimony of the prosecutrix that accused was threatening her saying that he has videographed the first incident is also not trust worthy and acceptable. If at all the accused had videographed the said incident, she would be the first person to know it. From the manner in which the prosecutrix has conducted herself and given evidence and having regard to the fact that the prosecutrix is not proved to be a minor at the time of alleged incident, it appears she is a consenting party. In Crl.A.No.1439/2011 in the matter of State of Karnataka Vs F.Nataraj and Crl.A.No.1395/2015 in the matter of Rajak Mohammad Vs. The State of Himachal Pradesh on appreciation of suspicious conduct of the prosecutrix in not rising any hue and cry and contradicting her own evidence, the Hon'ble Supreme Court held that the prosecution has failed to prove the allegations against the accused and acquitted them.
40. In the present case also, the prosecution has miserably failed to prove that as on the date of alleged incident, the prosecutrix was a minor and accused 28 CRL.A.No.578/2015 committed the offences punishable under Sections 366 and 376 I.P.C. Having regard to the fact that all the material witness including the prosecutrix have turned hostile and there is also no corroboration from the medical evidence to bring home guilt to the accused, the trial Court has erred in relying upon the evidence of PW-10 - the Judicial Magistrate who has recorded the statement of the prosecutrix under Section 164 Cr.P.C. and to convict the accused. The conclusions arrived at by the trial Court is contrary to the evidence placed on record and it is perverse. Therefore, the impugned judgment and order of conviction is not sustainable and liable to be set aside. Consequently, the appeal succeeds and accordingly I proceed to pass the following.
ORDER Appeal filed by the appellant/accused is allowed. The impugned judgment of conviction dated 06.04.2015 and order of sentence dated 10.04.2015 for the offence punishable under Sections 366, 376 of 29 CRL.A.No.578/2015 IPC and 4 and 6 of POCSO Act 2012 in Spl. Case No.48/2014 is set aside.
During the pendency of the appeal, the sentence was stayed and accused was ordered to be released on bail. Consequently, his bail bond stand discharged.
If accused has deposited fine amount, he is entitled for refund of the same.
Registry shall transmit the trial Court record along with copy of this order forthwith.
Sd/-
JUDGE sdu/smp