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3. The appellant was the accused before the trial court.

4. It is alleged that on 18.10.2015 at about 07:30 p.m. when the victim/minor, daughter of complainant who belongs to Korachara caste which comes under the SC/ST Act, was waiting for her mother near Yallamma Temple situated near her house at Sogi Village, at that time, appellant/accused lured the victim stating that he will give chocolate, then took her to his hotel, gave Rs.20/- and asked her to bring brandy bottle. The appellant/accused consumed brandy, removed the clothes of victim, when she tried to escape from him, he dragged her, made her to fall on the ground and committed penetrative sexual assault on her. When victim was shouting, the complainant came there, rescued her daughter/victim. The appellant/accused gave life threat to the complainant and victim stating that if she files any complaint, he will take away their life. Accordingly, the complainant gave complaint to the concerned police which came to be registered in Cr.No.58/2015 of Itagi police station for the offence under Section 376 IPC and also for the other offence. The investigating officer after investigation, filed the charge sheet against the accused for the offence under Section 376(2)(f) IPC and also for the offence under the provisions of SC/ST (POA) Act. The appellant/accused was arrested and he is in custody.

6. Heard Sri. Prashant S.Kadadevar, learned counsel for the appellant and Smt. Girija Hiremath, learned HCGP for respondent/State.

7. Learned counsel for the appellant/accused argued that the impugned judgment of conviction and order of sentence is illegal and not based on evidence on record. The trial court has not properly appreciated the report of scientific officer and the evidence of Dr.Kamalalmma/PW.14. It is alleged that false allegations are made against the appellant/accused. There are material contradictions in the evidence of prosecution witnesses. The theory of prosecution that the appellant/accused asked the victim girl to bring the brandy bottle, cannot be believed at all. Independent witnesses are not examined. Admittedly, when other children were playing at the place of offence, why the mother of the victim only came to rescue her daughter and even the complainant can scream and seek for anybody's help. PW.10

- Chilagodu Basavaraj has turned hostile to the case of the prosecution, wherein he has denied that victim came to his shop and purchased the brandy bottle. Therefore, the trial court has not appreciated the evidence of prosecution witnesses in proper perspective. The sentence imposed on the appellant/accused is exorbitant. Therefore, learned counsel prayed to set aside the judgment of conviction and order of sentence.

8. Learned HCGP argued that the trial court has appreciated the evidence of prosecution witnesses in proper perspective. The evidence of medical officer and FSL report prove the charge against the appellant/accused. There are no reasons assigned to disbelieve the statement of witnesses examined on behalf of the prosecution. There are minor contradictions and inconsistencies in the evidence of the prosecution witnesses. But the same are bound to occur, as the witnesses are giving evidence after lapse of a time. There are no material contradictions and inconsistencies found in the evidence of prosecution witnesses. On the other hand, there is corroboration in the evidence of each prosecution witnesses with regard to the charge leveled against the appellant/accused. Hence, she prayed to dismiss the appeal.

13. PW.2 - victim girl has stated that she is aged about 08 years. The court cannot simply believe the evidence of child witness, as there is possibility of tutoring the child witness by others. As per section 118 of the Indian Evidence Act, 1872, all persons shall be competent of testify unless the Court considers that they are prevented from understanding questions put to them or from giving rational answers to those questions, by tender years, old age, disease, or any other cause of the same kind. As per the said provision, the courts to verify whether the witness is competent to testify. It appears the learned sessions judge has ascertained competency of PW.2/victim girl and her evidence was recorded in the year 2017. The incident occurred in the year 2015. As on the date of giving evidence, PW.2 is aged around 10 years. PW.2 stated that she was playing with her friends near Yallamma temple. The appellant was sitting there and all the friends of PW.2/victim went away. It was about 08:00 p.m. the appellant/accused took PW.2 to a room and asked her to bring brandy bottle, then he did not leave her to go home, the appellant/accused slept on her and he closed her mouth with his hands, then her mother/PW.1 came and pushed the accused and procured her. PW.2 also stated that because of the act of the accused, she got a pain in her private part. Then it was informed to the villager and on the next day, the appellant/accused left the shop. Then she was taken to hospital. PW.2 has given her statement under Section 164 of Cr.P.C. before the Judicial Magistrate as per Ex.P5. In the cross-examination, nothing is elicited from her evidence. Further, PW.2 stated that she will not go with any unknown persons. She also stated that accused used to sell meals in his hotel. PW.2 stated that her mother/PW.1 also knew him very well as she would go the hotel of appellant/accused for taking breakfast and meals. It is suggested to her that she fell down on the ground, while she was playing and sustained injuries, which she has denied. So evidence of PWs.1 and 2 corroborates with each other. Absolutely there is nothing to show that they are deposing falsely.