(Prayer: This criminal appeal is filed under Section 374(2) of Cr.p.c. seeking to set aside the Judgment of Conviction and Order of Sentence passed by the Addl. District and Sessions Judge FTSC-1 U.K. Karwar (special court for trial of cases filed under POCSO) Act in Spl Case No. 88/2019 dated 24.08.2022 and 25.08.2022 and acquit the appellant for the charges leveled and order of conviction passed for the offences punishable under sections 363, 366, 376, 506 of ipc., and under sections 4 and 6 of pocso act and under sections 3(ii)(v) of sc/st prevention of atrocities act, 1989 and amendment act, 2015 and etc.)

Oral Judgment:

H.P. Sandesh, J.

1. Heard the learned counsel for the appellant and the learned Addl. SPP for the respondent No.1/State and Amicus Curie appearing for respondent No.2/complainant.

2. This appeal is filed against the judgment of conviction dated 24.08.2022 and order on sentence dated 25.08.2022 passed in Spl.Case No.88/2019 on the file of learned Addl. District and Sessions Judge, FTSC-I, U.K., Karwar (Special Court for trial of cases filed under POCSO Act) (for short, ‘trial Court’) imposing the sentence of life imprisonment for the offence punishable under Section 3(2)(v) of the Schedule Castes/Schedule Tribes (Prevention of Atrocities Act) 1989 and Amendment Act 2015, Section 376 of IPC and Sections 4 and 6 of POCSO Act with fine of Rs.90,000/- and the accused was sentenced to undergo for a period of four years and to pay fine of Rs.15,000/- for the offence punishable under Sections 363 and 366 of IPC and also imposed default sentences for both the offences; the accused was also convicted for the offence punishable under Section 506 of IPC and sentenced to undergo simple imprisonment for six months with fine of Rs.5,000/- and given the benefit under Section 428 of Cr.P.C. and also directed that the fine imposed to the accused shall be recovered from him and shall be paid to the victim girl and apart from that, the trial Court directed to pay an amount of Rs.2,90,000/- under Section 357A of Cr.P.C. under the victim’s compensation scheme and directed the DLSA, Karwar to pay the compensation to the victim girl. The appellant prays to setaside the judgment of conviction and order on sentence.

3. This Court directed the Member Secretary, DLSA, Karwar as to whether the compensation is disbursed to the victim girl, for which the report is received from the Member Secretary, DLSA, Karwar stating that the amount of Rs.2,90,000/- is not disbursed to the victim girl.

4. The factual matrix of the case of the prosecution is that the accused knowing fully well that the victim girl is a minor and belongs to Hindu Holera community, which comes under SC category and the accused belongs to Muslim community, persuaded her saying that he is loving her and would marry her and on 18.09.2019 at 7.30 p.m., he pretended that the victim girl’s mother has met with an accident and making such statement, he took the victim girl to the road, which is near his house, situated at Bombay Chal, Dhandeli; from there, he took the victim girl on his motorcycle bearing reg. No.KA-31/V-5282 to old Dhandeli Forest Depot, Kumbarakoppa, Survey No.7A/1 forest area. The accused tied her legs with chudidar veil and tied her legs with rope and subjected her for sexual act and when the victim girl reacted that she will tell the same to her mother and police, the accused abused her in a filthy language and threatened her with dire consequences that if she tells the same to anyone, he is going to take away her life. Thereafter, the accused took her to the house of CW7-Anil, bearing No.B-1698 situated at Gandhinagar, Dandeli at 10.30 p.m. on his motorcycle and stayed in the said house and once again he committed forcible sexual intercourse with her on the same night. The accused in the evening, told the victim girl that he will leave her to her house and taken her in a motorcycle to various places and roamed with her. On 22.09.2019 at 12.00 p.m., the accused took the victim girl to Bomanagi village in Joida Taluk to the house of CW10-Mahesh, where he picked up quarrel with the victim girl saying that she has called the CW12-Anil and told him to take her back and making such allegations, invoked the offences under Sections 363, 366, 376, 504, 506 of IPC and Sections 4 and 6 of POCSO Act and Section 3(1)(r), 3(i)(w), 3(ii)(5) of SC/ST (POA) Act, 1989 and Amendment Act, 2015. Having noticed both of them were quarreling, one person by name Ramesh informed the police about the same and PW19- Polcie came to the spot and took the victim and the accused to the police station and from there, the mother came and took the victim girl to the Santhvana Kendra, Dandeli. Thereafter, case has been registered and mahazar was conducted, as shown by the victim girl the place of incident and different places, where the victim was subjected to sexual act. Further investigation was conducted by recording the statement of witnesses and the victim was also subjected to medical examination and thereafter, she was taken to Sirsi Court for recording her statement under Section 164 of Cr.P.C. and also recorded the statement of CW33. After completion of investigation, charge sheet is filed for the above offences. The accused was secured before the trial Court and having filed the charge sheet, he did not plead guilty and claims the trial. Hence, the prosecution examined PW1 to PW24 and got marked 47 documents as Ex.P1 to P47 and MO1 to MO3. The accused was subjected to 313 statement and he denied the incriminating circumstances and did not choose to lead any defence evidence. The trial Judge having considered both oral and documentary evidence and also the evidence of prosecution witnesses comes to the conclusion that the prosecution has proved the case against the accused for all the offences, convicted and sentenced him and also major punishment is for imprisonment for life for the offence punishable under Section 376 of IPC and Sections 4 and 6 of POCSO Act. Being aggrieved by the judgment of conviction and sentence, the present appeal is filed by the accused before this Court.

5. The counsel appearing for the appellant would vehemently contend that the trial Judge committed an error in convicting the accused for all the offences and no material before the Court that the victim was subjected to the sexual act and the medical evidence is very clear that there is no any recent sexual act, in spite of it, the trial Court comes to the conclusion that she was subjected to sexual act and convicted the accused for the offence punishable under Section 376 of IPC and Sections 4 and 6 of POCSO Act. The counsel would vehemently contend that merely because she belongs to the SC/ST, the trial Court ought not to have invoked Section 3(2)(v) of SC/ST(POA) Act. The counsel also would submit that the alleged incident took place on 18.09.2019 and victim girl traveled with the accused till 22.09.2019 and thereafter, she went to her house and from there she was sent to Balamandir, Karwar and complaint was lodged on 03.10.2019 and there was a delay of 15 days in lodging the complaint.

6. The counsel would further submit that the evidence of PW6-doctor is that she was not subjected to any sexual act and also no such sign, in spite of it, the trial Court committed an error and clinical findings are suggestive of no evidence of recent sexual assault and final opinion is also the same, inspite of it, the trial Court convicted the accused and imposed sentence for life imprisonment, and the same is not sustainable in the eye of law. He further submits that the accused and the victim girl are admittedly relatives and further as admitted by the victim girl, she was in relation with the accused since 2 years from the date of incident, but due to family disputes and quarrels, the false case has been registered against the appellant. Hence, prays this Court to set-aside the judgment of conviction and sentence.

7. Per contra, learned Addl. SPP for the respondent/State would vehemently contend that the trial Court considered the material available on record and the accused only taken the minor girl from the custody of her parents and the trial Court rightly taken note that it attracts Section 363 of IPC. He would also submit that material placed before the Court is very clear that she was a minor and she is aged about 17 years as on the date of the offence committed by the accused. Ex.P24 is the Birth extract of the victim girl and the prosecution has proved that she is a minor. The Addl. SPP also vehemently contended that the trial Court has taken note of the evidence available on record and the accused not only has taken her and subjected her for sexual act in the forest area, but also in the house of PW4 repeatedly subjected her for sexual act. He would vehemently contend that the trial Judge has not committed any error in convicting the accused for the offences of Section 376 of IPC as well as Sections 4 and 6 of POCSO Act. The Addl. SPP would further submit that when the victim was taken to the doctor, at that time, she was having menstrual period and hence, on that day, the victim was not examined but subsequently examined. Hence, there is no any positive evidence before the Court with regard to subjecting her for sexual act. It is also vehemently contended that the trial Court has not committed an error in appreciating both oral and documentary evidence. The Addl. SPP also submitted that on examination of the victim, it was found that hymen was absent and hence, it is clear that she was subjected to sexual act by the accused.

8. The Amicus Curie appearing for the respondent No.2 would vehemently contend that it is clear that she was taken without the permission of her parents and hence, it attracts Section 363 of IPC and other material available on record also clearly discloses that when the hymen was not intact and even though the evidence of the doctor is not clear that she was not subjected to sexual intercourse, but the Court has to take note of the circumstances under which she was taken and subjected to sexual act in the forest area and also in the house of PW4. He further submits that the trial Court has taken note of the evidence of the victim and believed the case of the prosecution and hence, it does not require any interference of this Court, as the hymen was absent.

9. Having heard the counsel appearing for the appellant and also the learned Addl. SPP for the State as well as the Amicus Curiae and having considered both oral and documentary evidence available on record and on reappreciation of the same, the points that would arise for the consideration of this Court are: 1) Whether the trial Court committed an error in convicting the accused for the offence punishable under Section 376 of IPC and Sections 4 and 6 of POCSO Act and also under Section 3(2)(v) of SC/ST(POA) Act, sentencing the accused for life imprisonment with fine of Rs.90,000/-? 2) Whether the trial Court committed an error in invoking Section 363 of IPC and imposing the sentence for 4 years imprisonment and to pay a fine of Rs.15,000/- with default sentence and whether the trial Court committed an error in invoking Section 506 of IPC imposing the imprisonment for 6 months with fine of Rs.5,000/- with default sentence? 3) What order?

10. Having heard the respective counsels and also on perusal of material available on record, this Court has to re-appreciate both oral and documentary evidence available on record. The PW1-victim girl, in her evidence, has stated that she belongs to Hindu Holera community and the accused is the son of her aunt and her aunt married the Muslim and converted to the Muslim and the accused was known to her. She further states that the accused was visiting her house and telling that he is going to marry her and loving her, but she was refusing. That on 18.09.2019 at 07.30 p.m., the accused came and took her saying that her mother met with an accident and when she enquired about the place where she was met with an accident, he took her in his motorcycle stating that he will point out the place where her mother was met with an accident and he took her near the forest depot of old Dandeli, where he made her to lie on the ground and tied her legs with the veil and also tied her hands with the rope and removed her cloth and in spite of her resistance, he committed sexual intercourse with her. She further deposed that when she threatened him that she is going to inform the same in the family, the accused threatened her with dire consequences and also taken her to the house of PW4, wherein, he subjected her for sexual act at 10.30 p.m. as well as 02.00 a.m., thereafter on the next day, he took her to Belagavi and Sankeshwar and made her to roam with her and also took her to Kakkeri temple and made her to stay in the said temple and on the next day also, he took her to the Bomanagi village, Dandeli and took her to the house of CW10- Mahesh and when she informed that she is going to tell everyone, she was subjected to assault and CW10 informed her elder uncle's son CW12-Anil Chogule i.e. PW8. PW1 further says that her mother and police came to Bomanagi and she was taken to Santwana Kendra, wherein she revealed about the incident and Santwana Kendra people have informed Dandeli police and took the complaint from her in terms of Ex.P1 and she was also taken to the Sirsi Court, wherein her statement was recorded and she was also subjected to medical examination. She further states that police have conducted the mahazar in the forest area, photos were taken and also taken to the house of PW4 at Gandhi Nagar, Dandeli and also mahazar was drawn in terms of Ex.P2, and she identifies the photos, which were taken, as Ex.P3 to P7, CD also marked as per Ex.P8 and she has handed over the veil and rope, which were in Balamandira and the same were seized by drawing mahazar in terms of Ex.P9 and MO1-rope is also identified and veil as MO2 and motorcycle as MO3. This witness was subjected to cross-examination. In the cross- examination, she admits that the accused has taken her from Haliyala to Kakkeri temple and it was around 07.30 to 08.00 p.m. Thereafter, he took her to Beedi and it was around 11.00 p.m. and then to Belagavi. On the next day, they left Belagavi and reached Sankeshwar and thereafter to Bomanagi. She further says that she cannot tell how long they traveled in the motorcycle. The accused took her in the highway and also admits that in the said highway, people and vehicles were moving. But PW1 volunteers that she was threatened by the accused that he will take away her life, hence, did not inform the public. It is suggested that no such incident has taken place and the said suggestion was denied. However, she admits that the accused's mother is her aunt. It is suggested that her mother was addicted to alcohol and demanding the money and when the amount was not paid, falsely implicated the accused. It is suggested that the accused first tied her hands and thereafter her legs and she denies tying the same with rope. But she says that hands and legs were tied with rope. Making these suggestions, it is suggested to the witness that if hands and legs are tied, it was not possible to remove the cloth and the same was denied.

11. The other witness is the doctor-PW6 and he says that the victim stated that she knows the accused since 2 years and on 18.09.2019, the accused took her to the old Dhandeli in jungle area at about 08.30 p.m. and assaulted with hand and tied her with dupatta and committed forcible sexual intercourse and also she says that she was subjected to sexual act in the house of PW4 also and thereafter, she was taken to the different places. On examination, the victim was having old healed abrasion on the left little finger measuring 1.05 cm and she showed that she is on menstrual period and she has examined the external genital and there was bleeding and hymen was absent. On 15.10.2019, the victim was further examined and she gave report in terms of Ex.P14 and opined that there is no recent sexual assault. But in the cross examination, an admission is elicited that the injury mentioned in Ex.P14 on the left finger may likely be caused at the time of routine works. Further admits that the bleeding mentioned by her in Ex.P14 is on account of menstrual bleeding and hymen can be torn by cycling but will not be ruptured and fungal infection can be occurred due to nonmaintaining hygiene. She further admits that in her report, she has not mentioned that hymen was ruptured and looking to the history and her examination, she can say that she used to act like that of sexual intercourse. Further she admits that she has not mentioned in her report that victim is used to act like that of sexual intercourse and she has not examined the victim after giving her report as per Ex.P14 and Ex.P17.

12. The witness PW4 also turned hostile. The case of the prosecution is that the accused took the victim girl to the house of PW4, but PW4 did not support the case of the prosecution with regard to taking the victim girl to his house and he categorically says that the accused did not bring the victim to his house. Nothing is elicited from the mouth of PW4 to substantiate the case of the prosecution.

13. PW5 has also turned hostile stating that the accused did not bring her to his house and nothing is elicited in the cross examination of PW5. PW2 is the mahazar witness to Ex.P2 and Ex.P10. PW3 is also a panch witness to Ex.P9.

14. PW7 says that the victim as well as her mother came to Santwana Kendra and during consultation, she came to know about the victim girl was not heeding to the advice of her mother and also she was not attending the school and she only instructed to admit her to Balmandir. PW8, according to the prosecution, only informed the police and the mother about the incident, but witness not supports the case of the prosecution. PW9 says that the mother of the victim girl is no more and also not aware of the accused and not supported the case of prosecution. The PW10 is a doctor, who examined the accused and given the report in terms of Ex.P20 that there is nothing to suggest that the accused person is incapable of performing sexual intercourse. The PW11 also not supported the case of the prosecution, so also PW12. PW13-Assistant Commissioner in his evidence says that he gave the report in terms of Ex.P24 regarding birth certificate of the victim girl. PW16 is the Head Master of the School and information given by him is marked as Ex.P34, according to which, the date of birth of the victim is 27.06.2002, the incident was taken place on 18.09.2019 and age of the victim was 17 years.

15. Having reassessed both oral and documentary evidence, this Court has to examine the evidence available on record i.e. victim's evidence-PW1 and no doubt, the victim- PW1 and her mother went to the Santwana Kendra, but mother is no more and hence, not examined before the trial Court. Hence, the Court has to take note of evidence of PW1- victim girl only.

16. Having considered the evidence of PW1, it is very clear that the accused took the victim girl to the forest area and though story of the accused tying the legs and hands and removing the cloth and subjecting her for sexual act, appears to be an improvement in the evidence of PW1, this Court has to take note of the evidence of PW6, doctor and her evidence is not positive that she was subjected to sexual act and also it is categorically elicited from the mouth of PW6 that the victim girl gave the history and also she was having an injury in the little finger. According to the evidence of PW6-doctor in the cross examination, it is clear that the injury mentioned in Ex.P14 to the left finger may likely to be caused at the time of routine work. Further she admitted that bleeding mentioned by her in Ex.P14 is because of menstrual bleeding and also admits that hymen can be torn by cycling but will not rupture. But in the chief evidence, it is stated that hymen was absent. But in the cross-examination, she categorically admits that in the report, she has not mentioned that hymen was ruptured. Hence, the very evidence of the doctor that hymen was ruptured cannot be accepted and only in the chief evidence, she says that hymen was absent. Though an attempt is made by the doctor that the victim was subjected to a sexual act, but she categorically admits that she has not mentioned in her report that the victim is used to act like that of sexual intercourse. When such evidence is available before the Court, there is no any positive evidence before the Court that she was subjected to sexual act. No doubt, PW1 in her evidence says that she was subjected to sexual act in the forest area as well as in the house of PW4 and thereafter, taken to the house of PW8 and both PW4 and PW8 have not supported the case of the prosecution and the evidence of PW1 not inspires the confidence of the Court and not reliable considering her demeanor with regard to the incident and the same is not believable, since she roamed along with the accused for four days after she was taken to the forest area and the complaint was given after 15 days. The evidence of PW7 is also clear that she was not heeding to the advice of the mother and hence, she was sent to Balamandir.

17. It is also important to take note that the very admission on the part of PW1-victim gilr is very clear that even after the said sexual act, she was roaming along with the accused on different places of Belagavi, Sankeshwar, Kakkeri, Beedi and Khanapur and also they have visited temple. Having taken note of the very conduct of PW1 with regard to the allegation of sexual act is concerned, in view of doctor's evidence, no such sign of subjecting her for sexual act is found. The very evidence of PW6-doctor is not properly considered by the trial Court while invoking Section 376 of IPC and so also Sections 4 and 6 of POCSO Act. Merely because she was aged about 17 years and in the absence of medical evidence, the trial Court committed an error in invoking Section 376 of IPC and Sections 4 and 6 of the POCSO Act. However, it is the evidence of PW1 that she was threatened not to reveal the same. But the fact is that she has categorically given the admission that the accused took her in a motorcycle, that too in a highway and she did not bring it to the notice of any of the movers of vehicle and also the general public. Considering these admissions on the part of PW1, the very evidence of PW1 is not trustworthy and also not credible with regard to invoking of offence under Section 376 of IPC as well as Sections 4 and 6 of POCSO Act and so also the offence under Sections 366 and 506 of IPC.

18. The Court has to take note of the fact that Section 3(2)(v) of the SC/ST(POA) Act was invoked by the trial Court and no doubt, she belongs to SC category and also she categorically admits that the accused is the son of PW1’s aunt and her aunt married to a Muslim person. When such material available before the Court, when the victim went along with the accused and stayed along with him on several dates and also roaming with him for a longer period and also knows the relationship between the accused that he was the son of her aunt, the question of invoking of Section 3(2)(v) of SC/ST(POA) Act also does not arise. However, the Court has to take note of the evidence available on record particularly, PW13 and PW16 that the victim girl was aged about 17 years as per Ex.P24 and Ex.P34 and the age of the victim was also proved by examining PW13 and PW16. The fact is that she was a minor and she was taken from the custody of her parents/natural guardian without their permission. When such being the case, the evidence of PW1 is very clear that she was taken to the forest area and thereafter, they visited different places and in the absence of medical evidence with regard to subjected her for sexual act and PW1 is the only evidence available before the Court. Considering the evidence of PW1, since she is a minor, the question of invoking Section 366 of IPC does not arise and only Section 363 of IPC attracts when the minor girl was taken without the permission of the natural guardian.

19. The trial Court has also taken note of the said fact into consideration and also invoked Section 428 of Cr.P.C to set off the same and when all these materials are available on record, the question of invoking Section 3(2)(v) of SC/ST (POA) Act as well as Section 376 of IPC and Sections 4 and 6 of POCSO Act does not arise and hence, the trial Court committed an error. However, the trial Court taking into note of minor girl was kidnapped without the consent of the natural guardian, this Court also found that it attracts the ingredient of Section 363 of IPC and hence, this Court confirms the conviction and sentence for the offence punishable under Section 363 of IPC. Section 506 of IPC also does not attract for the reason that the evidence of PW1 with regard to causing of threat is not acceptable in view of she was roaming along with the accused, even after the said incident. Hence, Section 506 of IPC also does not attract.

20. The evidence of PW19 is also very clear that both victim girl and also the accused were quarrelling with each other and the same was noticed by him and informed the parents by sending her to her house and later on when the victim girl did not heed to the advice of the mother, she was taken to the Santhvana Kendra and the same is also spoken by the PW7. When such being the case, it is very clear that in view of the admission on the part of PW1 that she was having contact with accused No.1 from last 2 years, the question of invoking other offences does not arise. Hence, it requires interference of this Court and accordingly, we answered the same.

21. Having considered the conviction and sentence and when this Court comes to the conclusion that offence of Section 3(2)(v) of SC/ST(POA) Act and also the offence under Section 376 of IPC and Sections 4 and 6 of the POCSO Act does not attract, the imposition of fine for those offences as well as directing the DLSA to pay the amount of Rs.2,90,000/- also does not arise. The trial Court awarded the compensation only in coming to the conclusion that she was subjected to sexual act and hence, it requires interference of this Court. The offence under Section 363 of IPC remains with fine and sentence of 4 years. However, considering that the accused was in custody for a period of 1 year 8 months during trial and with regard to remaining sentence is concerned, this Court felt that only when the offence of Section 363 of IPC is committed, instead of sending him once again to suffer the remaining period of imprisonment, it is appropriate to compensate the victim by imposing an amount of Rs.3,00,000/- and the same is payable by the accused and the accused is directed to deposit the said amount before the trial Court within one week from today. On such deposit, the trial Court is directed to disburse the amount in favour of the victim on proper identification by securing her. Failing which, he shall undergo balance imprisonment for the offence punishable under Section 363 of IPC.

22. In view of the discussions made above, we pass the following:

                                                                  ORDER

               i. The appeal filed by the accused is allowed in part.

               ii. The judgment of conviction and sentence for the offence punishable under Sections 376, 366 and 506 of IPC, Sections 4 and 6 of POCSO Act, Section 3(2)(v) of SC/ST (POA) Act, are set aside. Consequently, the fine imposed by the trial Court for those offences is ordered to be refunded in favour of the appellant on proper identification.

               iii. The order passed by the trial Court to pay the amount of Rs.2,90,000/- under Section 357(A) is also set aside in view of this Court coming to the conclusion that the accused has not committed the offence of rape and other aiding offences under the POCSO Act.

               iv. The victim appeared before the Court and made the statement that she has received an amount of Rs.2,00,000/- from Social Welfare Department and having taken note of the same, the appellant/accused is also directed to pay an amount of Rs.3,00,000/- instead of going for remaining sentence, since he has already undergone 1 year 8 months during the time of trial.

               v. The accused is directed to deposit the amount within one week from today before the trial Court and the trial Court is directed to secure the victim and disburse the amount in her favour on proper identification.

               vi. The registry is directed to pay an amount of Rs.10,000/- to the Amicus Curiae for the able assistance given to this Court for disposal of this case.

               vii. The registry is directed to communicate this order to the Member Secretary, District Legal Services Authority, Karwar forthwith.

               viii. If the accused fails to deposit the amount within one week as directed, the trial Court is directed to secure him and subject him for sentence by issuing the conviction warrant for the remaining period in respect of the offence under Section 363 of IPC.

                ix. The fine amount of Rs.15,000/- imposed by the trial Court for the offence under Section 363 of IPC shall vest with the State.