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The aforesaid judgment which was delivered on 30th December, 2014 has been assailed by the accused in this appeal.

6. We have heard the learned senior counsel, Shri.Hashmath Pasha, for the appellant-accused and learned High Court Government Pleader, Shri.S.Rachaiah, for the State and perused the material on record as well as the original record.

7. While drawing our attention to the facts of the case and the evidence on record, learned senior counsel for the appellant contended that the trial court was not right in convicting the accused under Sections 366A and 302 IPC as well as under Section 3(2)(v) of the Act. He contended that the prosecution has failed to prove any of the offences alleged against the accused. Elaborating his submissions, learned senior counsel drew our attention to the evidence of PW-2--Nethravati (wife of the accused) and particularly to the examination-in-chief wherein she has categorically stated that on the date of the incident, she had gone for coolie work and returned from work at about 04.30 or 05.00 p.m. She tapped the front door of her house and found that it was bolted from inside. The accused did not respond nor did he open the door. So, she went to the backside of the house and entered the house from the backdoor which was open. At that time, Pratiksha came out of the room by wearing her clothes. She found that her husband-accused was inside the room. Pratiksha was terrified on seeing her and she ran inside the room and stood by the side of the accused. Later Pratiksha ran outside and Netra chased her. Pratiksha and the accused entered a bushy area and the accused came to the house through the front door. That the accused, who went out from the backdoor, came through the front door. The accused abused Netra and thereafter, went away and he did not return home that day. Therefore, the offence under Section 366A has not been made out at all. This is because PW-2 in her cross-examination has categorically admitted that the accused and Pratiksha did not go out of the house together.

11. Per contra, learned HCGP, appearing for the respondent-State, supported the impugned judgment and sentence and contended that in the instant case, Section 366A of I.P.C. is attracted. That the evidence of PW-2 is categorical in that regard. That there were two complaints: one as per Ex.P-1 and thereafter, the statement as per Ex.P-19, after the dead body of Pratiksha was traced from the tank bund; that Pratiksha and the accused were last seen together by PW-2 and hence, an offence under Section 366A IPC was proved. In this case, the conduct of the accused is also of significance as he absconded soon after the dead body of Pratiksha was traced and he was apprehended only on 09th August, 2013.

16. At the outset, we note that the State has not preferred any appeal against the acquittal of the accused for the offences punishable under Section 376 IPC read with Section 4 of the POCSO Act. Therefore, our attention in this appeal is only with regard to correctness or otherwise of the judgment of conviction and order of sentence passed by the trial court under Sections 366A and 302 IPC and Section 3(2)(v) of the Act.

17. We have perused the complaint-Ex.P-1 filed by PW-1 Hanumanthaiah/father of Pratiksha on 23rd July, 2013. According to the said complaint, his daughter Pratiksha, who was about sixteen years old, was residing with Durgamma--his mother-in-law. That on 22nd July, 2013 at about 06.00 p.m., Netra (PW-2--wife of the accused) went near the well in order to commit suicide. When she was asked the reason, she stated that her husband--Ravi and Durgamma's grand-daughter Pratiksha were in her house and when she returned from coolie work, she found them together and both of them ran away from the backdoor of the house. That during the whole night on 22nd July 2013, the complainant, his neighbour-- Smt.Lakshmamma and others searched for his daughter Pratiksha, but she was not found. That the accused had kidnapped Pratiksha. The said complaint as per Ex.P-1 was lodged before Hosanagar Police Station on 23rd July, 2013 and the first information report (Ex.P-2) in Crime No.111 of 2013 for the offence punishable under Section 366A IPC was registered. On the next day i.e., on 24th July, 2013 at about 07.00 a.m., a person by name Raghu had noticed a dead body in the water tank and it was identified by the complainant as that of his daughter Pratiksha and a second report was made by adding Sections 302 and 376 IPC read with Section 3(2)(v) of the Act. Thereafter, inquest was conducted on the dead body of Pratiksha followed by an autopsy conducted by PW- 13/Dr.Vrunda Bhat and the opinion of the doctor as to the cause of death was due to drowning.

40. The evidence of PW-2 clearly indicates that no case under Section 366A IPC has been made out. This is because, there is no evidence to the effect that the accused accompanied by Pratiksha ran out of the house of the accused and PW-2. According to this witness, Pratiksha ran out of her house and she chased her. The accused also went out of the house towards a bushy area but he returned to the house. Therefore, we find that the evidence of PW-2 is of no assistance so as to make out a case under Section 366A of I.P.C. Hence, the trial court was not right in convicting the accused under Section 366A IPC.