(Prayer: This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C praying to grant leave to appeal against the judgment and order dated 07.11.2019 passed by the LIII Additional City Civil and Sessions Special Judge, Bengaluru, in Special C.C.No.328/2017.)

Oral Judgment

H.P. Sandesh, J.

1. This matter is listed for admission. Heard Smt. Rashmi Jadhav, the learned Additional SPP appearing for the appellant/State, Sri R. SureshBabu, the learned counsel for respondent Nos.1 and 2 and Sri Javeed S, Amicus Curiae for respondent No.3.

2. The factual matrix of the case of the prosecution against the accused persons is that accused No.1 had kidnapped the minor victim girl on 26.04.2017 at about 2:00 p.m. from Nayandahalli Metro Station and committed rape on her in his house and subsequently, committed penetrative sexual assault and hence, invoked the offences punishable under Section 376 of IPC and Section 3 read with Section 4 of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short). The charges levelled against accused No.2, who is the mother of accused No.1, is that she being the mother of accused No.1, has abetted her son i.e., accused No.1 to commit rape on the victim and hence, invoked Section 114 of IPC. The accused persons did not plead guilty and claimed trial and hence, the prosecution examined P.W.1 to P.W.12 and got marked the documents at Exs.P.1 to 8. The defence have not led any evidence, but 313 statement was recorded after conclusion of the trial. The defence also relied upon the evidence of D.W.1 i.e., accused No.2 and got marked the documents at Exs.D.1 to 9 and those documents are confronted to P.W.7 during the course of cross-examination.

3. The Trial Court having considered both oral and documentary evidence available on record, in paragraph No.33 onwards, considering the evidence of the prosecution witnesses, comes to the conclusion that alleged kidnap of the victim cannot be accepted as she herself voluntarily went with accused No.1 on 31.03.2017. Afterwards, both of them went to Tirupathi and Tamil Nadu on 02.04.2017. The entire evidence of victim clearly establishes that she was capable of understanding the further consequences as both herself and accused No.1 were loving each other since three years prior to 2017. The Trial Court also taken note of the alleged rape committed by accused No.1 for the first time in the month of November 2016 and the same was not informed to the police or to the parents. The Trial Court taken note of that if really she was taken forcibly by accused No.1 on 31.03.2017, certainly she should have informed the same to her mother. But on the same day, when she voluntarily went with accused No.1, both of them were in Sagar hotel, thereafter went to park, where at about 8:00 p.m. called her over phone and she has informed that she was with accused No.1 in the park and hence, not accepted the contention of kidnap. The Trial Court also taken note of date of birth of the victim is shown as 09.06.2000 and she is aged about 16 years 10 months as on 31.03.2017. The important aspect is that she was meeting accused No.1 and going with him frequently even prior to 31.03.2017. However, though she has stated alleged rape committed by accused No.1 in the month of November 2016, subsequently also she was going with him to many places.

4. A detailed discussion was made in paragraph No.34 by the Trial Court that complaint was given only with respect to her missing from the house on 31.03.2017, which is marked as Ex.P.8, which is given by her parents. The Trial Court also taken note of medical evidence. The victim was examined on 01.04.2017 and report Ex.P.4 was given, whereas she was alleged to be forcibly raped by accused No.1 on 31.03.2017. The Trial Court in paragraph No.37 taken note that she was visiting with accused No.1 to different places, hotels and outside Bangalore and they were not strangers and both of them were loving each other from three years and even mother had knowledge about the same. The Trial Court also discussed the evidence of accused No.2 in paragraph No.39 and also taken note of Section 114 of IPC with regard to abetment is concerned and the same is discussed in paragraph No.36. The Trial Court taking into note the totality of the evidence, comes to the conclusion that the prosecution was not able to prove the case against the accused, both for the offences invoked against accused No.1 as well as accused No.2 and acquitted the accused.

5. Being aggrieved by the acquittal of the accused persons, the present appeal is filed by the State.

6. The learned Additional SPP, Smt. Rashmi Jadhav, appearing for the appellant/State would vehemently contend that Special Court has failed to appreciate the fact that the prosecution has proved the age of the victim P.W.2 as on the date of the offence and when she was a minor, the Trial Court ought to have considered that it is not a case of consent and the accused only in a deceitful manner took her and had sexual intercourse with her. The Trial Court given the reasons magnifying that they were in a love affair and with consent of the victim, sexual act was done and there is no material to come to a conclusion that there was a forcible act and failed to take note of the age of the victim under Section 2(d) of the POCSO Act. In the present case, the evidence of the prosecutrix and other material witnesses not only supported the case, but the same corroborates with each other and the same is not considered.

7. The learned counsel for respondent No.3 i.e., defacto complainant, Mr. Javeed S, who is appointed as amicus curiae, would submit that Ex.P.6 age certificate clearly discloses that she was a minor and the certificate is also marked with consent. When the victim was subjected to sexual act, the Trial Court committed an error in considering the material in paragraph No.37.

8. The learned counsel for respondent Nos.1 and 2 would vehemently contend that the Trial Court in detail considering the evidence of each of the witnesses, appreciated the material available on record from paragraph Nos.33 to 40 and comes to the conclusion that the case of the prosecution was not proved and there was no any forcible sexual act. The Trial Court also taken note of that the victim along with accused No.1 was visiting to different places and also visiting frequently to the hotel and she was aged about 16 years 10 months even as on the date of first sexual act and all these factors were taken note of by the Trial Court while acquitting the accused persons.

9. Having heard the respective learned counsel and also considering the material available on record, in terms of Ex.P.6 birth certificate, the victim is aged about 16 years 10 months. It is emerged during the course of evidence of P.W.1 that both the victim as well as accused No.1 had sexual intercourse in the room, which belongs to accused No.1. Having considered the evidence of P.W.1 during the course of evidence before the Trial Court, nowhere she has stated that by taking the advantage of her age that she was a minor, accused No.1 had sexual intercourse. But on perusal of the evidence of P.W.1, it is very clear that both the victim and accused No.1 had sexual intercourse and there is no material that it was a forcible intercourse or taken the advantage of that she was a minor. No doubt, under Section 2(d) of the POCSO Act, child below the age of 18 years is a minor and the Court has to take note of the age of the victim on the date of the alleged incident and she was aged about 16 years 10 months. Considering the evidence of P.W.2 victim girl, nothing is stated with regard to that her consent was taken in a deceitful manner by the accused and even whenever she was called by the mother, she was along with accused No.1 only and the same is also known to the mother.

10. The doctor who examined the victim girl stated that her hymen was not intact. The doctor also opined in terms of Ex.P.4 that there was no any external injuries. The victim girl along with accused No.1 went to Tirupathi, Tamil Nadu and other places and also to the hotel. All these factors were taken note of by the Trial Court while appreciating the evidence available on record after considering the evidence of each of the witnesses, who have been examined before the Trial Court. The Trial Court taken note of in paragraph No.33 that the victim girl voluntarily went with accused No.1. But the charges levelled against the accused is that he had kidnapped the victim. But in order to prove the material with regard to kidnap is concerned, no ingredients. The alleged kidnap of the victim was not accepted by the Trial Court, since she herself voluntarily went with accused No.1 on 31.03.2017. Having considered the evidence of P.W.2 also it is very clear that there was no any force. Apart from that, the Trial Court also taken note in paragraph No.33 that both of them went to Tirupathi and Tamil Nadu and entire evidence of the victim clearly establishes that she was capable of understanding the further consequences as both herself and accused No.1 were loving each other since three years prior to 2017. It is the case that the first sexual act was done in the year 2016 and subsequently on 31.03.2017, but the same was not brought to the notice of the mother or to the police. When the phone call was made by the mother, she was along with accused No.1 in the park and all these factors were taken note of by the Trial Court while appreciating the evidence. P.W.2 victim girl was capable to understand the consequences, though she was a minor and the material available on record is very clear that she was loving accused No.1 from last three years and both travelled together outside Bangalore. Apart from the evidence which has been led by D.W.1, statement of victim marked in the cross-examination of P.W.7 i.e., Ex.D.1 is taken note of by the Trial Court. The photographs at Exs.D.2 to 8 is very clear that both were visiting different places and they were loving each other. When such material is considered by the Trial Court, we do not find any ground to admit the appeal, as the same is devoid of merits and each circumstance were appreciated by the Trial Court while acquitting the accused.

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

ORDER

The appeal is dismissed.

The Registry is directed to pay the fee of Rs.5,000/- to the amicus curiae.