- 1 - CRL.A No.100549/2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 02ND DAY OF MAY 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100549 OF 2022 BETWEEN: THE STATE OF KARNATAKA BY MUNDAGOD POLICE STATTION, DIST: UTTARA KANNADA, THROUGH THE ADDL. STATE PUBLIC PROSECTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. ...APPELLANT (BY SRI. M.B.GUNDAWADE, ADLL. SPP) AND: MARDANSAB NEGALUR S/O. MUKTHUMASAB NEGALUR, AGE: 23 YEARS, R/O. INDUR, MUNDAGOD TALUK- 581349, U.K.KARWAR DISTRICT. …RESPONDENT (BY SRI. MAHESH WODEYAR, AMICUS CURIAE; PW1 AND PW14 (MOTHER OF PW1)-SERVED) THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378 (1) AND (3) OF CRPC SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.02.2022 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE -FTSC-1 U.K KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER POCSO) ACT IN SPECIAL CASE NO.11/2016 AND TO SET ASIDE THE JUDGMENT AND ORDER DATED 16.02.2022 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE -FTSC U.K. KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER POCSO) ACT IN SPL.C. NO. 11/2016 AND TO CONVICT THE RESPONDENT/ ACCUSED FOR THE OFFENCE PUNISHABLE U/S 363,366,376 OF IPC AND UNDER SECTIONS 4 AND 6 OF POCSO ACT 2012, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.04.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench Date: 2025.05.23 11:31:58 +0530 - 2 - CRL.A No.100549/2022 CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) The State has preferred this appeal against the judgment of acquittal passed by the Additional District and Sessions Judge, FTSC 1, Uttara Kannada, Karwar [Special Court for Trial of Cases filed under POCSO Act] in Special Case No.11/2016 dated 16.02.2022 [for short, “Trial Court”]. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The brief facts leading to this appeal are that Mundagod Police have submitted the charge sheet against the accused for the commission of offences punishable under Sections 363, 366, 376 of the Indian Penal Code [IPC] and Sections 4 and 6 of the Protection of Children from Sexual Offences Act [for short “POCSO Act”]. It is alleged by the - 3 - CRL.A No.100549/2022 prosecution that the accused within the jurisdiction of Mundagod Police knowing that victim girl is a minor, contacted CW8 through mobile and told her that he is coming from Dandeli to Mundagod bus stand. The accused had called victim girl to Mundagod bus stand on 01.12.2015 at 01:30 p.m. persuaded victim girl saying that they have to go to Bachaniki Dam, so saying taken the victim girl in an auto belonged to PW4 (CW12) to Bachaniki Dam. Their, the accused taken victim girl in Chippada and accused committed forcible sexual intercourse with her on and often and thereby committed the offences punishable under Sections 363, 366, 376 of IPC and Sections 4 and 6 of the POCSO Act. 4. After filing the charge sheet, the learned Sessions Judge has taken cognizance against the accused for the alleged commission of offences and case was registered in Special Case No.11/2016. On hearing the charges, the Trial Court has framed the - 4 - CRL.A No.100549/2022 charges against the accused for the offences punishable under Sections 363, 366 and 376 of IPC and Sections 4 and 6 of POCSO Act. Same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried. 5. To prove the case of the prosecution, in all, 17 witnesses were examined as PWs.1 to 17, 31 documents were marked as Exs.P1 to P31 and five material objects marked as MOs.1 to 5. On closure of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. The accused has totally denied the evidence of prosecution witnesses, but he has filed his written statement. However, he has not adduced any defence evidence on his behalf. Having heard the arguments on both sides, the Trial Court has acquitted the accused. Being aggrieved by this judgment of acquittal, the State has preferred this appeal. - 5 - CRL.A No.100549/2022 6. The learned Additional State Public Prosecutor Sri. M.B. Gundawade would submit that the judgment and order of acquittal passed by the Trial Court is contrary to law, facts of the case and evidence on record. PW1 is the victim girl and she has categorically stated regarding sexual act committed by the accused. She has stated before the Court that she has given a complaint through PW8. That in the cross- examination of this witness, the defence has admitted the presence of the accused at the place of incident on relevant date and time. With regard to incident is concerned, the suggestions put to the PW1 has clearly denied by her. The same has not been properly appreciated by the Trial Court at the time of analyzing the evidence in the case and thereby erred in discarding the evidence of PW1 victim girl and acquitted the accused. 7. Further, it is submitted that, at para No.25 of the judgment, the Trial Court, after elaborately - 6 - CRL.A No.100549/2022 discussing the evidence of PWs.1, 14 and 7 and relying Exs.P13 to P15, has rightly come to the conclusion that the victim was minor as on the date of incident and also opined that, the POCSO Act attracts the case of the prosecution. But at the same time, the Trial Court has not appreciated the evidence and documents in its proper perspective in the light of the provisions of POCSO Act and thereby mechanically passed the impugned judgment and order. Hence, the same is not sustainable and liable to be set aside. 8. It is submitted that, PW2 was very much present, at the time of recording the statement of the victim by PW8 – CDPO and also she was very much present at the time of filing compliant as per Ex.P6. PW4 is the autorickshaw driver who has given lift to the accused and victim girl on 01.12.2015 and he has identified the accused and victim before the Court. The said evidence is also corroborated with the evidence of PW1 and that in the cross-examination - 7 - CRL.A No.100549/2022 also he withstood the same evidence as stated in the examination-in-chief. It is further submitted that the Trial Court has failed to examine the materials placed on record in accordance with law and facts and sought for allowing this appeal. 9. As against this, the learned Amicus Curiae Sri. Mahesh Wodeyar, would submit that the prosecution has not produced the birth certificate issued by the concerned authority. The Investigating Officer has produced only Exs.P13 and P14 – School Admission Register extracts and examined PW7 that the date of birth of the victim was 27.11.1999. During the course of cross-examination of PW7, he has clearly admitted that the Police have not collected the Declaration Form and Birth Certificate. During the course of cross-examination of PW6, it was suggested that at the time of commission of alleged crime, the age of the victim was more than 18 years. But the same was denied by this witness. However, the - 8 - CRL.A No.100549/2022 prosecution has not obtained the Ossification Test Certificate from the Medical Officer. The Medical Officer has not taken any steps to determine the age of the victim. However, without any legally acceptable evidence, the Trial Court has held that the prosecution has proved that as on the date of alleged incident, victim was not minor, which is not sustainable under law and that has to be re-examined by this Court. With regard to other evidence is concerned, the Trial Court has properly appreciated the evidence on record in accordance with law and facts. On all these grounds, the learned Amicus Curiae sought for dismissal of the appeal. 10. We have examined the materials placed before us. 11. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding - 9 - CRL.A No.100549/2022 scope and power of Appellate Court in appeal against the order of acquittal. 12. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus: “23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate - 10 - CRL.A No.100549/2022 court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, - 11 - CRL.A No.100549/2022 reaffirmed and strengthened by the Sessions court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Sessions court.” 13. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: “16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the Sessions court is capricious or its conclusions are without - 12 - CRL.A No.100549/2022 evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the Sessions court has led to a miscarriage of justice. …” 14. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus: “4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-appreciation of the evidence - 13 - CRL.A No.100549/2022 on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a Sessions court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned Sessions Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…” - 14 - CRL.A No.100549/2022 15. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under: “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 16. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016) 10 SCC 220, at paragraph 12 of the judgment, it is observed thus: “12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged Sessions, and once the Sessions court by cogent reasoning acquits the accused, then the - 15 - CRL.A No.100549/2022 reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” 17. It is alleged by the prosecution that the accused within the jurisdiction of Mundagod Police knowing that victim girl is a minor contacted CW8 through mobile and told her that he is coming from Dandeli to Mundagod bus stand. The accused had called victim girl to Mundagod bus stand on 01.12.2015 at 01:30 p.m. persuaded victim girl to got to Bachaniki Dam and come back, so saying taken victim girl in an auto belonged to PW4 (CW12) to - 16 - CRL.A No.100549/2022 Bachaniki Dam. Their, the accused taken victim girl in Chippada and accused committed forcible sexual intercourse with her on and often and thereby committed the offences punishable under Sections 363, 366, 376 of IPC and Sections 4 and 6 of the POCSO Act. 18. To prove the guilt of the accused, the prosecution has examined 17 witnesses as PWs.1 to 17 and 31 documents marked as Exs.P1 to P37. with regard to the age of the victim is concerned, PW1 victim has stated in her evidence that her date of birth is 27.11.1999. Ex.P1 – complaint does not reveal as to the age of this victim. PW8 – Poornima Doddamani who has prepared the complaint – Ex.P6, has not disclosed the date of birth of the victim. But it shows that the age of victim was 17 years. Ex.P13 – the Admission Register extract reveals the date of birth of the victim 27.11.1999. On the basis of this, PW7 has issued the certificate Ex.P14. During the course of - 17 - CRL.A No.100549/2022 cross-examination of PW7, he has clearly stated that the school authorities have not collected the declaration form and birth certificate of the victim at the time of admission. Further, he has clearly admitted that he do not know on what basis the date of birth of the victim entered as 27.11.1999. 19. At this juncture, it is necessary to refer to the decisions in the case of Sunil vs. State of Haryana reported in 2009 AIR SCW 7656, wherein the Hon’ble Apex Court has held thus; “Penal Code (45 of 1860), S. 376 – Rape- Minority of prosecutrix - Prosecutrix in love with accused and consenting party - Close and careful determination of age of prosecutrix become imperative – Clinical examination showing that prosecutrix had well developed secondary sex characters – Reports of Dental Surgeon and Radiologist not produced through prosecutrix was referred by doctor to them – Admission form of school also not produced – School leaving certificate produced was obtained few days after incident – Father giving age of - 18 - CRL.A No.100549/2022 prosecutrix only approximately – Conviction of accused on such evidence would be improper.” 20. Further, in the case of Ashwani Kumar Saxena vs. State of Madhya Pradesh reported in AIR 2013 SC 553 has held that; “Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.” - 19 - CRL.A No.100549/2022 21. When there is no birth certificate or matriculation certificate, it is the duty of the Investigating Officer to collect Ossification Test Certificate by the Medical Officer. In this case, the Investigating Officer has not collected the matriculation certificate or birth certificate or the declaration form submitted by the parents of the victim at the time of admission of victim to school. The Investigating Officer has not offered any explanation for non-production of the above said documents and also failed to collect Ossification Test Certificate. In the absence of these material pieces of evidence, the evidence placed by the prosecution is not sufficient to hold that the victim was the minor at the time of alleged crime. Accordingly, the prosecution has failed to prove that the victim was the minor at the time of the alleged crime. In this regard, the Trial Court has not properly appreciated the evidence on record. On re-examination/ re-evaluation of the - 20 - CRL.A No.100549/2022 evidence on record, we are of the opinion that the prosecution has failed to prove that the victim was the minor at the time of the alleged crime. 22. The genesis of the case is that on the basis of the complaint filed by the complainant, the Anganwadi Supervisor – Poornima Doddamani, who is examined as PW8. While preparing Ex.P1 – compliant, PW8 has not ascertained the age and date of birth of the victim. During her cross-examination, she has stated that accused was in the Police Station and further she has clearly admitted that in Ex.P1 she has not stated that the accused has enticed the victim and kidnapped her. She has clearly admitted that the victim or her parents have not lodged complaint to the Police. During the course of cross-examination, she has stated that: “£Á£ÀÄ AiÀiÁjUÀÆ w½AiÀÄzÀAvÉ DgÉÆæAiÀÄ£ÀÄß ¦æÃw ªÀiÁqÀÄwÛzÉÝ. CzÀ£ÀÄß w½zÀÄ ZÁ¸Á 11 E£ÀÄß FPÉ ªÀÄĹèÃA ºÀÄqÀÄUÀ£À eÉÆvÉ ªÀÄzÀÄªÉ ªÀiÁrPÉÆAqÀÄ ©qÀÄvÁÛ¼É JAzÀÄ DUÀ vÀ£ÀUÉ CªÀªÀiÁ£ÀªÁUÀÄvÀÛzÉ JAzÀÄ - 21 - CRL.A No.100549/2022 F jÃw PÉÃ¸ï ªÀiÁr¹ £À£ÀߣÀÄß ªÀÄzÀÄªÉ ªÀiÁr¹zÀ CAzÀgÉ ¸Àj."""" 23. Therefore, CW11 has lodged the complaint. The said admission of PW1 goes to show that she was having secret love affair with the accused, CW11, who is her uncle thought that she will marry a Muslim boy and if she marries Muslim boy she will be defamed, got lodged the present case and performed her marriage. Further in her cross-examination she has admitted that her father and mother started giving harassment to her thinking that she may run away with accused. PW1 has admitted that for that reason her mother in collusion with her uncle. CW11, got lodged the present case, sent the accused to the jail and performed her marriage. 24. Further, PW1 in her cross-examination admitted that her parents started giving harassment to her thinking that she may run away with the accused. Further, she has admitted that for that - 22 - CRL.A No.100549/2022 reason, her mother in collision with her uncle CW11 got lodged the present case, sent the accused to the jail and performed her marriage. 25. PW14, the mother of the victim girl has stated in her evidence that she and her husband’s brother CW11, came to Mundagod Police Station. In the Police Station, accused and the victim girl was there. Police told her that accused had taken victim girl to Bachaniki Dam. She does not know why the Police have brought the victim girl from Bachaniki Dam and she has not given statement before the Police. The prosecution treated this witness as hostile witness and cross-examined. Even in her cross- examination, the prosecution has failed to elicit any favourable answer from her to substantiate the case of the prosecution and even she has denied the statement said to have been recorded by the Investigating Officer under Section 161 of Cr.P.C. which is marked as Ex.P28. - 23 - CRL.A No.100549/2022 26. PW15 – Nagaraja Iliger is a hearsay witness. 27. In the statement under Section 313 of Cr.P.C., the accused has stated as under: “1) I am the resident of Indoor Village Taluk Mundgod and being born and brought up in the said Village and residing with my parents and the younger sisters in the same Wada consists of good number of houses of different communities. Though I belonged to Muslim Community but Victim belonged to Hindu Community was a major girl and deeply loving me. Several times I advised that I belonged to Muslim Community and Victim belonged to Hindu Community and the other Hindu people would oppose the love marriage between the two and it is also dangers to our life. In spite of it she used to talk trough Mobile Phone with me and several times expressed to get myself married. 2) On 01-12-2015 during morning hours when I was at Mangaluru the Victim girl phoned to me stating that the parents and her uncle were arranging her marriage against - 24 - CRL.A No.100549/2022 her wishes with a boy who is the resident of Belagavi and requested me to come to Mundgod immediately as she was inclined to talk with me. Accordingly I came from Magaluru to Mundgod Bus Stand and the Victim girl being a major lady came to Mundgod Bus Stop from her resident which is about 8 KM from Mundgod Bus Stand by Tempo. She wanted to discuss with me something in relating to her proposed marriage against her will with a boy a Belagavi and there by she expressed to narrate the same near by Bachanki Dam and accordingly we both have proceeded to that place by Auto Rickshaw. We seat at Dam site and she has told me that her parents including her uncle already decided her marriage with a boy Belagavi against her wishes. They know my love with the Accused. I told her as I belonged to Muslim Community the Hindu people will defiantly opposed even the love marriage. I advised to heed the request of her parents and uncle and to get rid of my love. Then we both were coming back to Mundgod Bus Stand at that time the Police attached to - 25 - CRL.A No.100549/2022 Mundgod PS have taken both of us to Mundgod PS and kept their in. 3) After enquiry of the Victim girl she expressed the above facts in relating to love affairs with the Police Officers and I have also narrated the reasons for coming to Mundgod. No Complaint was taken by the Police as Victim refused to give any Complaint muchless any allegations against me. The parents and uncle of the Victim were also secured to the Police Station. In spite of it no Compliant was filed by them. 4) At that time some Hindu leaders came to the Police Station and discussed with the Police Officer in relating to us. Subsequently the Police have secured Social Welfare Officers and managed to file present case at their instance making unjust allegations. They have also discussed with the parents and uncle unless and until I detained in jail marriage of the Victim would not be performed accordingly serious allegations are made against me to wit that no bail be granted by this Hon'ble Court. Thus I have been arrested and detained in jail. After my detention within 3 months, the marriage of - 26 - CRL.A No.100549/2022 the Victim is already celebrated with a boy of Belagavi very hurriedly not even informing to anybody. 5) Entire case is managed to be registered against me at the instance of some leaders belonged to Hindu Community influencing the Police Officers Mundgod. The Victim and her parents being influenced to depose against me. I have not committed any sexual acts as alleged and all those allegations being created and influenced to depose at the instance of Hindu leaders to get rid of the love marriage between the Victim and myself. In order to keep myself in jail those serious allegations are made against myself. 6) The Police have not collected my cloths as alleged and all those Medical Certificates are managed to be created against myself. I humbly submit that I have not committed any sexual acts upon the Victim girl and all those allegations managed to be inbuilt at the instance of some Hindu Leaders influencing the Police Officers and Victim and Social Welfare Officers. Thus I am - 27 - CRL.A No.100549/2022 innocent and may kindly be acquitted form the charges in the ends of justice and equity.” 28. In the case on hand, the victim has admitted that false case is registered against the accused. Victim has admitted that CW11 / PW15 who is her uncle and her parents in collision with Police and Child Welfare Officer have lodged false complaint only in order to perform her marriage with a boy from Belagavi. The admission of the mother of the victim girl also substantiates the defence of the accused. Accordingly, the accused has proved his defence by preponderance of probabilities. The defence taken by the accused is probable one in view of the admission of the victim and mother of the victim. The victim girl has clearly admitted that she has given the statement under Section 164 of Cr.P.C. at the instance of Child Welfare Officer. The victim and her parents, relatives have not lodged the complaint. Complaint is lodged by Child Welfare Officer at the instance of PW15 and her - 28 - CRL.A No.100549/2022 father. The entire evidence placed before this Court will establishe that absolutely there are no materials to show that the accused has committed aggravated sexual assault under Section 6 of the POCSO Act. Moreover, we have also given finding to the fact that the prosecution has failed to prove that the victim was minor as defined under Section 2(d) of the POCSO Act. Therefore, the question of committing the offence under Section 6 of the POCSO Act by the accused does not arise. 29. With regard to offence punishable under Section 376 of IPC is concerned, the Trial Court has properly appreciated the evidence on record in accordance with law and facts. The findings and conclusion of the Trial Court with regard to the commission of offence under Section 376 of IPC are sound, well-founded and based on a proper evaluation of the evidentiary record. We do not find any legal infirmity or error in the judgment under challenge. - 29 - CRL.A No.100549/2022 Accordingly, the point framed for determination is answered in the negative. In the result, we proceed to pass the following: ORDER [i] Appeal is dismissed. [ii] The judgment and order of acquittal dated 16th February 2022 passed in Special Case No.11 of 2016 by the Additional District and Sessions Judge, FTSC – 1, Uttara Kannada Karwar (Special Court for Trial of Cases filed under POCSO Act) is confirmed; [iii] Registry is directed to send Trial Court records along with a copy of this judgment to the concerned Court; [v] The Secretary, Legal Services Committee, High Court of Karnataka Dharwad Bench, Dharwad shall pay a - 30 - CRL.A No.100549/2022 sum of Rs.10,000/- as remuneration for rendering services to the learned Amicus Curiae Sri. Mahesh Wodeyar. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE Rsh CT:VH