Karnataka High Court
State Of Karnataka vs Hadapada Manjunatha S/O Shekharappa on 28 February, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO.100331 OF 2018
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE
SUB-INSPECTOR OF POLICE (L&O),
HADAGALI POLICE STATION,
DIST: BALLARI,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(By Sri.V.M.BANAKAR, ADDL SPP)
AND
HADAPADA MANJUNATHA
S/O SHEKHARAPPA
AGE: 21 YEARS,
OCC: WORKING IN CLOTH SHOP,
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R/O: WARD NO.4,
MUDUKANA KATTE AREA,
KOTTURU CITY,
KUDLIGI TALUK.
...RESPONDENT
(By Sri.SATHISH M S, ADVOCATE )
---
THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF
CR.P.C. SEEKING TO
A) TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 02.04.2018 PASSED BY THE I-
ADDL. DIST. & SESSIONS JUDGE, BALLARI, IN
S.C.NO.127/2013;
B) TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 02.04.2018 PASSED BY THE I-ADDL. DIST. & SESSIONS
JUDGE, BALLARI, IN S.C.NO.127/2013; AND
C) CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
P/U/S 366, 376 OF IPC AND U/S 3 & 4 OF POCSO ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 10.02.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THOUGH VIDEO
CONFERENCING, THIS DAY, S.RACHAIAH J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The Appellant has preferred this appeal against the acquittal order passed by the learned Special Judge, Bellary, in S.C.No.127/2013 for the offence punishable under Sections 366 and 376 of Indian Penal Code (hereinafter for brevity referred to as, 'IPC') and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as, 'POCSO').
2. For the purpose of convenience, the ranking of the parties is considered as that of the Trial Court.
Brief facts of the case:
3. On 07.03.2013, at about 6.00 pm, the complainant and victim had been to Hadagali for Gyaravi festival. They have traveled in a bus and alighted at Hadagali bus stand. The accused had also traveled in the said bus and got down at Hadagali bus stop.
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4. The complainant had gone to bring the fruits and asked the victim to watch the luggage and stand there. The complainant after returning noticed that, the victim was not there. On thorough enquiry and search, she noticed that, the accused had taken the victim along with him in a bus. The complainant noticed them in the bus which was moving and she was unable to stop the bus.
5. After returning home, she, her husband (PW4) and many elderly persons of the community approached the elders of the accused family and informed them about the incident. The brother of the accused i.e. PW7 assured them that he would secure them within three to four days and requested them not to lodge any complaint as the reputation of the family would be at stake. Believing his version, the complainant and her husband along with the elders returned to their respective homes and they kept quite till 14.03.2013. On that day, the complainant again approached the elders and informed that, the brother of the accused had not kept his assurance and he had not made any efforts to secure the presence of the accused and victim. 5
Crl.A.NO.100331 OF 2018 The elders of the community advised her to lodge a complaint. Accordingly, she lodged the complaint before the police. The police registered the case in Crime No.19/2013 for the offence punishable under Section 366 of IPC and Sections 12 and 18 of the POCSO Act.
6. After investigation, the charge sheet came to be filed. The Trial Court framed the charge against the accused. Accused pleaded not guilty and claimed to be tried.
7. In order to prove its case, the prosecution has examined 16 witnesses, from PWs.1 to 16 and got marked Exs.P1 to P16 but no properties were marked as MOs. However, the defence has got marked two documents i.e. Ex.D1 and D2.
8. The Special Court after considering the oral and documentary evidence on record and also the arguments of the parties opined that the prosecution has failed to prove its case beyond all reasonable doubt and acquitted the accused. Being aggrieved by the said judgment of acquittal, the complainant- appellant has preferred this appeal.
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9. Sri. V.M.Banakar, learned Additional State Public Prosecutor has advanced his arguments and sought to set aside the order of acquittal on the following grounds:-
The trial Court has not appreciated the evidence of victim -
PW1, mother of the victim-PW2 and father of the victim-PW4 and also some other independent witnesses. The trial Court should have considered the evidence of PW11 who is the Head Master where the victim had studied. The Head Master has submitted a document, i.e. Transfer Certificate of the victim which is marked as Ex.P11. On perusal of the Transfer Certificate, it appears that the victim girl was a minor as on the date of incident. However, the trial Court ignored these points while appreciating the evidence and considering the document of Ex.P5 which was issued by the Doctor who examined the victim and opined that she was major as on the date of incident which is highly erroneous and arbitrary. The trial Court has not applied judicious mind while appreciating the oral and documentary evidence.7
Crl.A.NO.100331 OF 2018
10. In support of his contention, the learned Additional State Public Prosecutor has relied upon the following judgments for our consideration:-
i) Phool Singh Vs. State of Madhya Pradesh reported in AIR 2022 SC 222
ii) Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC
iii) B.C.Deva @ Dyava Vs. State of Karnataka reported in (2007) 12 SCC 122
11. Per contra, Sri Satish M.S., the learned counsel for the respondent submits that there is inordinate delay in lodging the complaint. The Doctor has not mentioned or noticed any injuries on the victim girl and the certificate-Ex.P5 is silent about any sexual act committed by the Accused. The victim has not stated before the learned Judicial Magistrate about the rape which is said to have been committed by the accused. There are lot of inconsistencies and improvements between the witnesses. As such, the trial Court has rightly acquitted the accused.
12. Heard both the counsels and perused the materials on record.
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13. The points that arises for our consideration are:
a. Whether the trial Court has justified its judgment of the acquittal passed in S.C.No.127/2013 for the offence punishable under Sections 366 and 376 of Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012?
b. Whether the complainant-State has made out any ground to interfere in the impugned judgment of acquittal passed by the trial Court?
14. Before going into the details of the case, it is necessary to have a cursory look of all the witnesses and their role in the case.
15. PW1- she is the victim and supported the case of the prosecution. PW2-mother of the victim and she has lodged a complaint. The complaint is marked as Ex.P2 and she is the witness to the spot Mahazar which is marked as Ex.P3 and supported the case of the prosecution. PW3 is the independent 9 Crl.A.NO.100331 OF 2018 witness. He has stated that he accompanied PW2 and CW7 and met the brother of the accused. He has supported the case of the prosecution. PW4 is father of PW1 who supported the case of the prosecution to the extent that he along with his wife and elders of his community had approached the brother of the accused and informed him about the incident. The brother of the accused has assured them that he would secure the presence of the accused and victim within two to three days. PW5 is the police constable of Hoovina Hadagali police station. He has stated that on 14.03.2013, he was deputed along with other staff member to apprehend the accused and bring back the victim. He has supported the case of the prosecution. PW6 is the Doctor who has examined the victim and issued certificate as per Ex.P5 and also issued Ex.P6 which is a police requisition. Mallesh is the brother of the accused. He is supposed to depose that PW2, PW3 and PW4 had approached him and informed him about the incident. He has turned hostile. PW8 is the police constable of Hoovina Hadagali police station. He has taken the accused for examination from the Doctor. Ex.P4 items said to have been seized got marked. He has supported the case. PW9 10 Crl.A.NO.100331 OF 2018 is the Head Master of the Government Higher Primary School, Kottur. He has stated that on requisition made by the I.O., he has issued date of birth certificate which was got marked as Ex.P9. PW10 is the witness supposed to depose about the incident and about the members of victim's family approaching the brother of the accused. He has not supported. PW11-is the witness to Ex.P3 and Ex.P11. He supported the case of the prosecution. PW12 is the Doctor who was working at Government Hospital, Hoovina Hadagali. He has stated that on requisition, he has examined the accused and submitted his report as per Ex.P12. PW13-Police Constable at Hoovina Hadagali. He has stated that he was deputed to trace the accused and victim. He has accompanied PW5 and secured the accused and victim. PW14- Police Sub-Inspector of Hoovina Hadagali. He has stated that on the complaint made by PW2, he has registered the case in Crime No.19/2013 and the same was sent to higher officials and Court. He has conducted investigation and submitted charge sheet. PW15- is the Doctor and she has examined PW1 and submitted her report as per Ex.P6. PW16- 11 Crl.A.NO.100331 OF 2018 the Doctor who examined the victim has submitted a report as per Ex.P16.
16. Before proceeding further, it is necessary to consider as to whether the trial Court has justified in taking the age of the victim as aged 18 - 20 years and considering her as major as on the date of incident. Now, it is necessary to go through the provision under section 7A of the Juvenile Justice Act, 2000, which was inserted by an amendment with effect from 22.08.2006. The following documents are suggested to determine the age and claiming the juvenility, such are:-
(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 municipality or a panchayath;
(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.12
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17. In the present case, the Trial Court has committed an error by considering the medical certificates-Ex.P5 to determine the age of the victim as 18 to 20 years which is erroneous and against the law. The trial Court ought to have considered the evidence of PW9 who is the Head Master of the school, where the victim girl has studied and also the admission register extract produced by him which is marked as Ex.P9 and transfer certificate Ex.P11 which indicates the date of birth of the victim as 08.02.1998. As per the provision under section 7A of the Juvenile Justice Act, the primary document to determine the age of the victim is the date of birth certificate issued from the school. The document which the prosecution relied upon is the Transfer certificate, issued by the school. The document reveals her date of birth as 08.02.1998. As per the above said document, the age of the victim was below 16 years as on the date of incident. This Court opines that the said victim is minor as on the date of incident.
18. As regards, the offence under Section 376 of IPC is concerned; it is the trite law that the sole testimony of the 13 Crl.A.NO.100331 OF 2018 prosecutrix can be relied upon for conviction, if it inspires confidence of the Court in a rape case. However, such evidence of the prosecutrix should be of sterling quality.
19. Now, it is relevant to place reliance on the judgment in the case of Phool Sing Vs. State of Madhya Pradesh, reported in AIR 2020 SC 222. Para 6 reads thus:
"6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults."14
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20. Further, the reliance is placed on the judgment of the Hon'ble Supreme court in the case of Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC 191. Paragraph 9 reads thus:
"9. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain AIR 1990 SC 658, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:-
16. "A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is 15 Crl.A.NO.100331 OF 2018 necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
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21. A careful reading of the above two judgments of the Hon'ble Apex Court, reveals that the sole evidence of the prosecutrix is sufficient to base a conviction rather than seeking corroboration provided, the evidence of the prosecutrix should inspire confidence in the Court. In the sense, the statement of the prosecutrix, if found to be worthy of credence and reliable, require no corroboration. However, the solitary evidence of the prosecutrix should inspire the confidence of the Court and it should be of sterling quality.
22. As regards the solitary evidence and sterling quality is concerned, it is necessary to place reliance on the Judgment of the Hon'ble Supreme Court, in the case of Krishan Kumar Malik Vs. State of Haryana reported in (2011) 7 SCC 130. The Hon'ble Supreme Court observed that, to hold an accused guilty of the commission of the offence of rape, the solitary evidence of prosecutrix is sufficient provided, the same inspires confidence and appears to be trustworthy, unblemished and should be of sterling quality.
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23. Now, the question that would arises for our consideration is as to how we should consider the "sterling quality" of the evidence. The same is answered by the Hon'ble Supreme Court, in the case of Rai Sandeep Vs. (NCT) of Delhi, reported in 2012 8 SCC 21 in para 22, wherein the Hon'ble Supreme Court has observed that, the definition "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such witness the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such witness. What would be relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court, it should be natural and consistent with the case of the prosecution qua the accused.
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24. In the present case on hand, PW1-victim has been consistent in her evidence about the commission of alleged rape and kidnap by the accused. She has stated that, she was taken to different places and the accused had sexual intercourse with her despite her resistance. In spite of the lengthy cross examination, she has withstood it and supported the case of the prosecution. Now, the question is whether her evidence inspires confidence in the Court to believe her evidence to base the conviction with respect to Section 376 of IPC. Though, PW1 had given her statement under section 164 of Cr.P.C., before the learned Judicial Magistrate, it appears that, she has not whispered about the alleged commission of rape before the learned Magistrate. However, for the first time, she has deposed before the Court about the alleged commission of rape. This creates serious doubt in the mind of the court about the alleged rape.
25. The omission to state the fact before the learned Judicial Magistrate and stating the same for the first time before the Court in her examination - in - chief amounts to 19 Crl.A.NO.100331 OF 2018 improvement. Such improvement is considered as material component. Hence, we are of the opinion that the prosecution has failed to prove the alleged commission of rape said to have been committed by accused No.1 through the evidence of PW1.
26. However, in order to take corroboration if any, it is necessary to consider the evidence of the Doctor who had examined the victim and submitted the report and the same has been marked as Ex.P5. The incident said to have been occurred on 08.03.2013, the victim had been secured by the police and subjected her for medical examination on 14.03.2013. The Doctor who examined her has opined that the victim has not been subjected for recent sexual intercourse. However, P.W.1 in her examination - in - chief has stated that, the accused used to have sexual intercourse with her on everyday. But, the opinion clearly establishes that, no sexual intercourse has taken place recently. Hence, the alleged commission of rape has not been established through the medical record also. Such being the fact, it would be inappropriate to arrive at a conclusion that the 20 Crl.A.NO.100331 OF 2018 prosecution has proved the case of alleged rape beyond all reasonable doubt.
27. As regards the offences under the POCSO Act is concerned, it is necessary to go through the provisions of Sections 3 and 4 of the POCSO Act which read thus:
"3. Penetrative sexual assault -A person is said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
4. Punishment for penetrative sexual assault:- 21
Crl.A.NO.100331 OF 2018 (1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than *ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.
(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."
28. From a reading of the above provisions, as we have already discussed supra, the prosecution has not proved the case of rape beyond all reasonable doubt through the evidence of PW1. As the evidence of P.W.1 with regard to the alleged offence of rape has failed, invocation of provision under Sections 3 and 4 of the POCSO Act is would not arise. Accordingly, we answer it in negative for the above said offences. 22
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29. As regards Section 366 of IPC is concerned, it reads as follows:-
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.
30. There are two parts of the definition, one is, the person who abducts the woman to compel her to marry and have illicit intercourse, secondly, by means of criminal intimidation induces any woman to go from any place with intent 23 Crl.A.NO.100331 OF 2018 that she may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. In the present case, from the reading of the evidence of PW1, PW2, PW3 and PW4 it establishes that the accused had induced her and taken her away from the lawful custody of her mother. However, there is no evidence to that effect that, the accused has forced or seduced the victim to have illicit intercourse with another person. Such being the fact, Section 366 Part II would not be attracted. The first part that, the person who abducts the woman and compels her to marry and have illicit intercourse with him, is squarely applicable to the case on hand. PW1 in her evidence is consistent right from the very beginning with regard to the kidnap and the same has been corroborated by the evidence of PWs.2, 3 and 4 and also the police officials like PW5 and PW13. According to the evidence of PW5 and 13 it emerges from the record that, they have secured the presence of the victim and apprehended the accused near Bagalkot bus stand. It is proved fact that, the victim was in the company of the accused and she was away from her parents. No attempts are made by the defense to discredit the evidence of PW1, PW5 and PW13 24 Crl.A.NO.100331 OF 2018 with regard to arrest and securing their presence from Bagalkot. Hence, this court after considering the age of the victim, opined that, she was a minor as on the date of incident and the offence under Section 366 of IPC has been clearly established and proved by the prosecution. Accordingly, we hold that the accused has committed offence under Section 366 of IPC.
31. As regards the delay in lodging the complaint is concerned, now, it is necessary to analyze the delay by considering the evidence on record. The date of incident as per the prosecution is on 07.03.2013. PW2 the mother of the victim soon after the incident gone to her house and informed the incident to her husband and also the elders of the community. All of them had been to the house of PW7 who is the brother of the accused and informed about the incident. The independent witness -PW3 has stated that he and PW2 and PW4 had approached the PW7. The said PW7 stated that he would take three to four days to search and secure the presence of the victim and accused. As a result, the elders of the community have advised PW2 and PW4 not to lodge a complaint. Even, PW2 25 Crl.A.NO.100331 OF 2018 and PW4 being the mother and father of the victim have thought it appropriate not to lodge a complaint as the reputation of the family is involved and they kept quite till 14.03.2013. As a last resort, since they could not find out the victim even after lapse of eleven days, except lodging a complaint there was no other way to secure her presence, accordingly, they decided to lodge complaint. As a result, delay of eleven days has been caused to lodge the complaint. Such delay is acceptable and it has been satisfactorily explained by PW2 and PW4 and also corroborated by evidence of PW3. Hence, the delay in lodging FIR has been satisfactorily explained and accepted.
32. For foregoing reasons, the evidence of PW1 and PW9 and also the document which is marked as Ex.P9 would indicate that, she was a minor as on the date of incident. The evidence of PW1 inspires confidence of the Court with regard to the offence punishable under Section 366 of IPC but, not under Section 376 of IPC and also Sections 3 and 4 of POCSO Act. The trial Court has adopted erroneous method to arrive at a conclusion that the age of the victim girl was 18 to 20 26 Crl.A.NO.100331 OF 2018 years by considering the medical certificate issued by the Doctor, which has been marked as Exs.P5 and passed the impugned judgment. Hence, the prosecution has made out grounds to interfere in the impugned order of acquittal.
a) Accordingly, the Appeal is allowed-in-
part.
b) The accused is convicted for the offence punishable under Section 366 of IPC and is sentenced to undergo simple imprisonment for four years and pay the fine of `5,000/- (Rupees Five Thousand only) for the offence punishable under section 366 of IPC and in default to pay the fine, the accused shall undergo one year rigorous imprisonment.
c) The acquittal of the accused for the offence punishable under Section 376 of 27 Crl.A.NO.100331 OF 2018 IPC and Sections 3 and 4 of the POCSO Act is confirmed.
d) Further, it is directed that, the accused shall surrender before the Special Court within 15 days from the date of expiry of the appeal period. Otherwise, the Special Court to take necessary action in this regard.
Sd/-
JUDGE Sd/-
JUDGE Vmb