(Prayer: This Crl.A is filed u/S 372 Cr.PC (filed u/S 413 of BNSS) praying to set aside the judgment datd 15.02.2025 passed by the Addl. District and Sessions Judge, FTCS-1 (POCSO) Shivamogga in Spl.C.No.168/2020 and etc.

This Crl.A is filed u/S 378(1) and (3) of Cr.PC praying to grant leave to appeal against the judgment and order of acquittal dated 15.02.2025 passed in Spl.C No.168/2020 passed by Addl. District and Sessions Judge, FTSC-I (POCSO) Shivamogga for the offence p/u/S 363, 366(A), 344, 323, 506, 376(2)(N), 419, 384 r/W Section 149 of IPC, Section 9, 10 and 11 of Prohibition of Child Marriage Act, Section 6 and 17 of POCSO Act and Section 66(C) of IT Act and etc.)

Oral Judgment

H.P. Sandesh, J.

1. Crl.A.No.1084/2025 is filed by the defacto complainant and Crl.A.No.257/2026 is filed by the State against he judgment of acquittal dated 15.02.2025 passed in Spl.C.No.168/2020 by the Additional District and Sessions Judge, FTSC-I (POCSO), Shivamogga for the offences punishable under Sections 363, 366(A), 344, 323, 506, 376(2)(n), 419, 384 read with Section 149 of IPC; Sections 9, 10 and 11 of the Prohibition of Child Marriage Act; Section 6 and 17 of POCSO Act and Section 66(c) of IT Act.

2. These appeals are listed for admission. heard the learned counsel appearing for the respective parties.

3. The factual matrix of case of the prosecution while making the allegations against the accused persons is that on 07.05.2020, the mother of the victim had filed first information statement before police alleging that victim was missing on the same day and she was kidnapped by accused No.1. Based on the said statement, an FIR was registered against accused No.1 for the offence punishable under Section 363 of IPC. Thereafter, on 14.06.2020, victim was secured and her statement was recorded by police. Victim in her statement made the allegation against accused Nos.1 to 12 as accused Nos.2 and 3 are parents of accused No.1; accused No.9 is the sister of accused No.1 and she was a child in conflict with law; accused Nos.4 and 5 are uncles of accused No.1; accused No.6 is wife of accused No.5; accused Nos.7 and 8 are relatives of accused No.1; accused No.10 is uncle of accused No.1 and accused Nos.11 and 12 are Mowlvis. Victim in her statement alleged that on 07.05.2020 at about 06.30 a.m., she and accused No.9 were playing shuttle badminton in a ground near her house and during such time, accused Nos.1, 5 and 6 came to the said place in a car and accused No.1 had brought two cake boxes and given to accused No.9 and in turn, accused No.9 gave one cake box to victim and forced her to eat the cake and after eating the said cake by victim, she became unconscious and then accused No.9 took the victim and made her to sit in the car brought by accused No.1 and thereafter accused Nos.1, 5 and 6 took the victim in car and went to some place and they stopped the car and thereafter accused Nos.2 to 4 came to said place and they took accused No.9 with them and they instigated accused No.1 to kidnap the victim. Hence, accused Nos.1, 5 and 6 took the victim with them and taken her to Kagekodamagge village and there took her to a room situated in the first floor belonging to the house of CW8 and with the help of accused No.11, he brought accused No.12 to said place.

4. It is further stated that accused No.12, being a Mowlvi had performed the marriage of victim with accused No.1 in accordance to their customs in presence of accused Nos.2 to 8 and 11. During such time, Nikanama was written and signatures of accused No.1 and victim were taken forcefully. During such time, accused No.6 had signed the said Nikanama from victim side. After marrying the victim, accused No.1 took the victim with him and along with accused Nos.5 and 6, he had taken her to the Sikandarabad and confined her in a house bearing No.T1 situated at Ravikiran Apartment, Maruthi Nagar, Sikandarabad and confined her till 29.05.2020. During such period, accused No.1 had sexual contact with victim on 4 to 5 times and accused Nos.1 and 6 had assaulted the victim. Thereafter, accused Nos.5 and 6 collected the gold ornaments from victim and pledged the same and given a sum of Rs.80,000/- to accused No.1 to take the victim to some other place. Then accused No.1 brought the victim to Bengaluru and confined her in his aunt's house and on 30.05.2020 accused No.1 brought her to the house of accused Nos.7 and 8 situated at Ambedkar Nagar, Bhadravathi and there accused Nos.1, 4, 7 and 8 have colluded each other and made the victim to write a letter saying that accused persons have not done anything and on her own will and wish, she went with accused No.1 and got married to him. During such time, accused No.8 has assaulted the victim in order to get the said document executed and sign it. Then accused No.1 took the victim to Bengaluru and confined her in his aunt's house from 31.05.2020 to 08.06.2020. Thereafter on 08.06.2020, he brought her in a Santro car from Bengaluru to Arasikere and then accused Nos.5, 7 and 8 brought the victim to Shivamogga and dropped her near Doddapete police station, Shivamogga. Then victim visited the said police station and her statement was recorded by police and victim narrated all these incidents before police.

5. Based on the statement of victim, accused Nos.1 to 12 were implicated in this case. During the investigation, accused Nos.1 and 11 were arrested and produced before the court and remanded to judicial custody. Accused Nos.2 to 4, 6 to 8 and 12 have obtained anticipatory bail. Accused No.5 was absconding and hence, a separate split charge sheet was registered against him. Accused No.9 is a juvenile and hence, charge sheet was filed before juvenile justice court and accused No. 10 was dropped in the charge sheet. Therefore, trial was proceeded against accused Nos.1 to 4, 6 to 8, 11 and 12. The accused persons who have been secured before the court, did not plead guilty and claims the trial. Hence, the prosecution in order to prove the charges levelled against the accused persons, examined PW1 to PW20 and got marked the documents at Ex.P1 to P76(a). The accused persons were subjected to 313 statement but not led any defence evidence. However, documents at Ex.D1 to D7 were confronted and MO1 to MO1(d) were also marked on behalf of the prosecution.

6. The Trial Court having considered the material available on record particularly with regard to the kidnapping is concerned taken note of the fact that victim had accompanied the accused from Shivamogga to Sikandarabad and also stayed along with the accused and not made any hue and cry during the stay with accused No.1 and also she came back to Bengaluru and then went to Shivamogga and during this period also, she nowhere made any hue and cry. The Trial Court also taken note that the vehicle was passed through the different check posts and nowhere, victim made any alarm. The Trial Court also taken note of the medical evidence which discloses that on examination of the victim, not found any material of suggesting the victim for subjecting her for sexual act and also not found any injuries on the private part of the victim and victim's evidence was also taken note of with regard to the age is concerned and same is discussed in paragraph 21 of the judgment. Apart from that the Trial Court taken note that victim was staying along with accused No.1 from 07.05.2020 till she was brought to police station on 14.06.2020 i.e., almost more than a month victim was with the accused persons. The Trial Court also taken note that victim admitted that she telephoned to her father and spoken to him on multiple times. During such time also, she did not complained to her parents against accused persons and also she did not made any efforts to escape from accused persons or tried to complain to the neighbour house at Sikandarabad or at Bengaluru. These are the facts taken note of by the Trial Court.

7. The Trial Court also relied upon the judgment reported in 2019 Cr.R. 705 (Kant) (DB) in the case of State Of Karnataka vs Hanamant @ Chebbeppa and so also the judgment of this Court passed in Crl. A.No.100345/2018 dated 23.07.2019 in between State of Karnataka vs Hanumantha @ Chebbappa which clearly discloses that when victim has joined the accused voluntarily and gone him with, the question of invoking the offence of Section 366 of IPC does not arise. The Trial Court also taken note that while cross examining the victim, confronted Ex.D6 and D7 and those documents are letters written by victim and she admitted her signatures on the said documents. In the said documents, it shows that the victim wrote the love letters to accused No.1 complaining against her parents. These facts clearly show that there was a love affair between accused No.1 and victim and due to this, victim went with accused No.1 and got married and there, she went with him to Sikandarabad and stayed in a house with him and thereafter, she came to Bengaluru with accused No.1 and stayed in his aunt's house. All these materials were considered by the Trial Court. With regard to invoking of POCSO Act is concerned, FSL report was also taken note of and Trial Court comes to the conclusion that there is no medical evidence before the court to substantiate the very case of prosecution.

8. The very contention of the counsel appearing for the State as well as counsel appearing for the defacto complainant that the Trial Court committed an error in relying upon the document of the matriculation certificate. For that, Trial Court in paragraph 21, discussed that the victim and parents have deposed the very date of birth mentioned in document at Ex.P35 i.e., 17.08.2003 and the same is only a true copy of SSLC Marks card. Having considered the evidence of PW9 i.e., teacher who deposed about issuance of true copy of SSLC marks card at Ex.P35 and taken note of Section 94 of Juvenile Justice Act, the study certificate issued by school where victim had first studied will prevail over the certificate issued by the secondary education. The said document of first admission was not placed before the court. However, the Investigating Officer has not explained as to why he did not collect the study certificate of victim from the school where victim had studied. Even Investigating Officer has not collected the birth certificate of victim to establish that said date of birth as mentioned in Ex.P35 is correct one. Even otherwise the true copy is furnished as per Ex.P35, is not an original document. There is no proper explanation as to why he is not producing the other document i.e., study certificate where victim has studied first or birth certificate of victim. When there is no proper evidence on record, it can be rightly held that prosecution failed to prove the correct date of birth.

9. The main focus made by the counsel appearing for the defacto complainant as well as the State that document has been proved with regard to the age is concerned and Trial Court considering the material on record in detail, in paragraph 21 comes to the conclusion that prosecution has failed to prove the correct date of birth of the victim or age in accordance with Section 94 of Juvenile Justice Act and not accepted the case of the prosecution.

10. Having perused the material on records, it discloses that there is no any medical records and there is no suggestive of subjecting her for sexual act as per the report of the doctor. When the victim girl accompanied with the accused, the Trial Court taken note that Ex.D6 and D7-the love letters were written by the victim girl herself and she was along with accused No.1 from 07.05.2020 till 14.06.2020 and no attempt was made either to bring the neighbours or any of the persons when she was travelling along with accused for a long distance from Shivamogga to Sikandarabad that too during COVID period when entire country was almost vigilant with effect of COVID attack. When victim was able to travel along with accused No.1 from Shivamogga to Sikandarabad and stayed without making any hue and cry and all these factors were taken note of by the Trial Court while considering the matter on merits, we do not find any grounds to admit these appeals filed by the defacto complainant as well as the State for reconsideration since there is no error in the judgment of the Trial Court.

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

ORDER

The appeals are dismissed.