- 1 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO. 979 OF 2018 (C) BETWEEN: R. SHANKAR NAIKA S/O RAMA NAIKA, AGED ABOUT 23 YEARS, R/A NARAHARI NAGAR, CHALLAKERE TOWN, CHITRADURGA-577 522. …APPELLANT (BY SRI. RAJU C N.,ADVOCATE) AND: 1. STATE BY CHALLAKERE P.S CHITRADURGA REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001. 2. ANJINAPPA S/O KARIYANNA AGED ABOUT 49 YEARS NARAHARI NAGARA CHALLAKERE TOWN AND TALUK CHITRADURGA - 577 522. …RESPONDENTS (BY SMT. SOWMYA R., HCGP FOR R1; Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 SRI. PRATHEEP K.C., ADVOCATE FOR R2, VIDE ORDER DATED 27.06.2024 APPOINTED ON AMICUS CURIAE) THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 03.05.2018 AND SENTENCE DATED 04.05.2018 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C.NO.66/2017 CONVICTING THE APPELLANT/ACCUSED FOR THE P/U/S 363, 366, 376(2)(n) OF IPC AND SECTION 4, 6 AND 8 OF POCSO ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) This appeal is against the judgment and order dated 03.05.2018 passed in Special Case (POCSO) No.66/2017 on the file of II Additional District and Sessions Judge, Chitradurga (hereinafter referred to as trial Court), by which the trial Court has convicted and sentenced him as follows: ''The accused is sentenced to undergo imprisonment for life and also accused is sentenced to pay in a sum of Rs.30,000/- for having committed an offence under Section 376(2)(n) of IPC. - 3 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 In default of fine, he shall undergo simple imprisonment for a period of 1 year. The accused is sentenced to undergo imprisonment for a period of 10 years and also accused is sentenced to pay in a sum of Rs.20,000/- for having committed an offence punishable under Section 366 of IPC. In default of fine, he shall undergo simple imprisonment for a period of one year. The accused is also sentenced to undergo imprisonment for a period of 7 years and also accused is sentenced to pay in a sum of Rs.10,000/- for having an committed offence punishable under Section 363 of IPC. In default of fine, he shall undergo simple imprisonment for a period of six months. The accused is sentenced to undergo imprisonment for a period of 7 years and also accused is sentenced to pay in a sum of Rs.10,000/- for having committed an offence under Section 4 of POCSO Act. In default of fine, he shall undergo simple imprisonment for a period of 1 year. The accused is sentenced to undergo imprisonment for a period of 10 years and also accused is sentenced to pay in a sum of Rs.10,000/- for having committed an offence under Section 6 of POCSO Act. In default of fine, he shall undergo simple imprisonment for a period of 1 year. The accused is sentenced to undergo imprisonment for a period of 5 years and also accused is sentenced to pay in a sum of Rs.10,000/- for having committed an offence under Section 8 of POCSO Act. - 4 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 In default of fine, he shall undergo simple imprisonment for a period of 1 year. The above sentences shall run concurrently." 2. A complaint was filed by one Anjinappa, the father of the victim on 07.07.2015 at 8.00 p.m., before the Challakere Police Station alleging that for the past 2 to 3 months one Shankar Naika was proposing his daughter for marriage and in this regard complainant had met said Shankar Naika and advised him that he should not meet his daughter on the said aspect. It is further alleged that on 01.07.2015 at about 9.30 a.m. his daughter went to school but did not return home till 5.00 p.m. In the meanwhile, while the complainant was searching for her, one Papanna informed him that he had seen his daughter along with Shankar Naika at Maramma Temple. Accordingly he filed a complaint before the respondent-Police alleging that the appellant had kidnapped his daughter on the pretext of marrying her and requested to take suitable action. 3. Based on the said complaint respondent-Police registered FIR in Crime No.231/2015 initially for the offences punishable under Sections 363 and 366 of Indian Penal Code. - 5 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 After the investigation, based on the statement of the victim recorded on 22.01.2017, police filed charge sheet by inserting Section 376 of Indian Penal Code and Sections 4, 8 of POCSO Act, 2012 in addition to earlier charges under Section 363 and 366 of Indian Penal Code. The trial Court while framing the charges on 21.08.2017, altered the charges from Section 376 of Indian Penal Code to 376(2)(n) and Section 6 of POCSO Act, 2012. 4. Since the appellant had pleaded not guilty and sought to be tried, the prosecution examined 23 witnesses as PW1 to PW23 and marked 29 documents as Ex.P1 to P29 and MOs.1 to 13. Appellant denied all incriminating evidence while recording his statement under Section 313 of the Criminal Procedure Code. 5. On appreciation of the aforesaid evidence led in by the prosecution, the trial Court passed the impugned judgment and order convicting the appellant for the offences punishable under Sections 363, 366, 376(2)(n) of Indian Penal Code and Section 4, 6 and 8 of POCSO Act, 2012. Being aggrieved by the same, the appellant is before this court. - 6 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 6. Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted: (a). In her statement recorded on 23.07.2015 under Section 164 of Cr.P.C., before the Magistrate, the victim-PW.15 never disclosed about any sexual assault and it is only in her subsequent statement recorded on 22.01.2017 under Section 161 of Cr.P.C., for the first time she had alleged about the sexual assault. (b). Referring to the deposition of victim-PW15, learned counsel pointed out that on 26.10.2017, when the deposition was being recorded, the victim has stated that the appellant had threatened her and her parents with dire consequences, if she refused to marry him. However, no such statement was made either at the time of recording her statement under Section 164 or under Section 161 of Cr.P.C. about such a threat. Thus, he submits that apart from there being contradiction, there is improvement in statements at every stage by the victim with the sole intention of falsely implicating the appellant into the case. (c). That as per the wound certificate produced at Ex.P22, the doctors have opined that they did not find any external injuries nor were there any injuries over - 7 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 the genital. Thus there is no corroboration to the evidence of PW15. (d). That PW3, PW4, PW5 and PW19 have completely turned hostile, which aspect of the matter has not been considered by the trial Court. (e). That the trial Court has failed to appreciate that the victim had accompanied the appellant and travelled with him to number of places for more than 21 days and she had every opportunity to escape from the appellant or to contact her parents or to file a complaint before nearest Jurisdictional Police. Absence of these aspects would indicate that the victim was acquainted and had gone with the appellant with consent. (f). Referring to the report of the RFSL with respect to MOs.1 to 13, learned counsel submits that except item No.7, where the report suggests finding of seminal stains, skin tissue and spermatozoa, no other items have such findings. Thus he submits that based solely on the said report the trial Court ought not to have convicted the appellant as the said report creates suspicion about the genuineness of the evidence led in by the prosecution. (g). Investigation Officer had given requisition to the trial Court to insert Section 376 and Section 4 of - 8 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 POCSO Act, 2012. Further while framing the charges on 21.08.2017, the trial Court altered the charges from Section 376 of IPC to Section 376 (2)(n) and also inserted Section 6 of the POCSO Act, 2012. That when already the Court had modified or altered the charges upon the request of the Investigation Officer further alteration/modification of the charge on 21.08.2017 by the Court below was improper. (h). He further submits that the prosecution has not proved the age of the victim to be below 18 years on the date of alleged commission of the Act. He refers to Ex.P9 which is a school record and the evidence of PW6 who has spoken about the said document. He submits that the said evidence does not satisfy the requirement of law with regard to proof of the age of the victim. He also refers to the deposition of the victim and her father with regard to the age of the victim. Hence seeks for allowing of the appeal. 7. Per contra, learned SPP-II justifying the judgment and order passed by the trial Court submitted that PW7- complainant being the father of the victim has supported the case of the prosecution. He also refers to the medical evidence and wound certificate at Ex.P22, the report produced at Exs.P19 and P23 and submits that as per the opinion of the - 9 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 doctors, the possibility of sexual assault has been established by the prosecution. It is submitted since the age of the victim was 16 years at the time of commission of offence as per Ex.P9, the burden to prove the contrary was on the accused. Hence, he submits that the order passed by the trial Court does not warrant any interference. 8. Heard both side and perused the records. Point that arises for consideration is: "Whether under the facts and circumstance of the matter the trial court is justified in convicting and sentencing the appellant for the offenses punishable under Sections 363, 366, 376(2)(n) of Indian Penal Code and Sections 4, 6, 8 of POCSO Act, 2012?" 9. Since the appellant has been charged with the commission of the offences punishable under the provisions of POCSO Act, 2012 the prosecution is required to prove the age of the victim being below 18 years. In this regard the prosecution has relied upon the evidence of PW6, namely Sri. Rajanna- Incharge Head Master, Hegere Thayamma Government High School, Challakere. The said witness in his evidence has stated that upon the request made by the father of the victim on 18.01.2015 seeking furnishing of the school - 10 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 records, he had verified the school register and found that father of the victim had admitted her to 7th standard as per Serial No.7/2013-14. That as per the said register her date of birth is 06.05.2000 and accordingly, he has issued a copy of the said document which is marked as Ex.P9. In the cross examination, the said witness has stated that the date of birth of the victim is entered in their records as per the transfer certificate furnished to them at the time of admission to 7th Standard. Except this there is no other evidence on record. 10. The Hon'ble Apex Court in the case of P.Yuvaprakash Vs. State represented by Inspector of Police reported in 2023 SCC Online SC 846 while dealing with a case arising out of the provisions of POCSO Act, concerning the proof of age of the victim, referring to the provision of Sections 3 and 4 of the POCSO Act as well as Section 94 of the Juvenile Justice Act, 2015 at paragraphs 13, 14, 15, 16 has held as under: 13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration - 11 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 is that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh,3 this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: - 12 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh4 that: “Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.'' - 13 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 11. In the instant case, document at Ex.P9 issued by the PW6-Head Master is from the HTT Girls' High School, which is not the first School attended by the victim. The said document at Ex.P9 refers to her previous School being one Government Higher Primary School, Narahari Nagar, Challakere. Thus, the aforesaid document does not meet the requirement of law as enunciated by the Hon'ble Apex Court in the aforesaid judgment. 12. Necessary also to note that PW7-Anjinappa the father of the victim in the cross examination recorded on 23.10.2017 has admitted that he has been married for 25 to 30 years. That after two years of his marriage his elder daughter Gayathri was born. Incident allegedly taken place during July 2015. Thus as on the date of alleged incident Victim-PW15 must have been above 18 years, therefore the prosecution as rightly pointed out by the learned counsel for the appellant has failed to prove that the victim was below the age of 18 years on the date of commission of the offence by leading acceptable evidence. Therefore, charging the appellant for the offences punishable under the provisions of POCSO Act, 2012 are unsustainable. - 14 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 13. What remains therefore to be considered is conviction and sentence by the trial Court in respect of the offences punishable under Sections 363, 366 and 376 (2)(n) of I.P.C which read as under: 363. Punishment for kidnapping.— Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid]. 376(2)(n). 376(2)(n). Punishment for rape.- (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever,- xxxxx xxxxx (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean - 15 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 imprisonment for the remainder of that person's natural life, and shall also be liable to fine. 14. The prosecution is required to prove that the appellant herein had kidnapped the victim-PW15 from the lawful guardianship of PW7-father. As already noted above the since the prosecution failed to prove that the Victim-PW15 being below 18 years of age, the provisions of section 363 of IPC are inapplicable. Conviction and sentencing the appellant- accused for that offence is unsustainable. 15. As regards offence under Sections 366 and 376(2)(n) IPC, it is appropriate to note that the victim-PW15 in her deposition has stated that on 01.07.2015, while she alone was going to her school, the appellant accosted her near Maramma temple at about 9.30 a.m., and told that he is desirous of marrying her. That he had proposed her in similar manner on earlier occasions, however, she did not reveal the same to her parents apprehending that they may discontinue her studies. That on the said day the appellant waylaid her and induced her to go with him. That since he had threatened her that if she did not go with him or if she screamed he would finish her parents - 16 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 and would even kill her, she silently followed him to Challakere bus stand and sat in a Government bus. Thereafter, they went to Chitradurga; from Chitradurga to Hubballi in a bus and in Hubbali, they went to the house of the relatives of the appellant namely, PW.4-Venkatesh Naik and PW.5-Lakshmi Bai, on Mantur Road, Maithra Colony. The said relatives enquired with the appellant about the victim-PW15 to which the appellant had responded that he wants to marry her, therefore he had brought her. Upon which they had advised him to take her back to her place and to marry her with the consent of her parents. That appellant, victim-PW15 stayed in their house. 16. That on the next day when the said relatives of the appellant namely PW.4-Venkatesh Naik and PW.5-Lakshmi Bai went to their work in the morning at 9.00 a.m., taking advantage of the same the appellant despite resistance from the victim- PW15, forcefully had intercourse with her under threat. Similarly, he had sexually assaulted on several occasions under threat while they were residing in the said house. Since he had threatened her not to disclose to anyone, she did not even reveal the incident to the said PW.4- - 17 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 Venkatesh Naik and PW.5-Lakshmi Bai. That on 22.07.2015, the appellant had asked her to accompany him as he intended to take her to a different place. Accordingly, she accompanied him from Hubballi to Chitradurga and reached at about 9.00 a.m. When they were at the Chitradurga bus stand, Challakere police brought them to the station and thereafter summoned her parents and when her parents asked her she disclosed the entire incident. Accordingly, she was subjected to medical examination. 17. The victim in her statement recorded before the Magistrate as per Ex.P13 has stated as under: "£Á£ÀÄ £ÀgÀºÀj £ÀUÀgÀzÀ°ègÀĪÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è £ÀªÀÄä vÀAzÉ - vÁ¬Ä eÉÆvÉ ªÁ¸ÀªÁVgÀÄvÉÛãÉ. FUÀ £Á£ÀÄ 10£Éà vÀgÀUÀw NzÀÄwÛzÉÝãÉ. £Á£ÀÄ ZÀ¼ÀîPÉgÉAiÀÄ°ègÀĪÀ ºÉUÀÎgÉ vÁAiÀĪÀÄä ±Á¯ÉAiÀÄ°è NzÀÄwÛzÉÝãÉ. £Á£ÀÄ ¥Àæw¤vÀå ¨É½îUÉÎ 10PÉÌ ±Á¯ÉUÉ ºÉÆÃV ¸ÀAeÉ 4-30 gÀ ¸ÀĪÀiÁjUÉ ªÀÄgÀ½ ªÀÄ£ÉUÉ §gÀÄvÉÛãÉ. 2. ¢.01-07-2015 gÀAzÀÄ ¥Àæw¤vÀåzÀAvÉ ¨É½UÉÎ 9-15 CxÀªÁ 9-30 gÀ ¸ÀĪÀiÁjUÉ £Á£ÀÄ ±Á¯ÉUÉ ºÉÆÃUÀÄwÛzÁÝUÀ, ±ÀAPÀgÀ£ÁAiÀÄÌ £À£Àß ºÀwÛgÀ §AzÀÄ vÀ£ÀߣÀÄß ªÀÄzÀÄªÉ DUÀÄ CAvÁ ºÉý £À£ÀߣÀÄß §¹ì£À°è AiÀiÁªÀÅzÉÆà HgÀÄUÀ½UÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVgÀÄvÁÛ£É. £À£ÀUÉ ¸ÀzÀj HgÀÄUÀ¼À ºÉ¸ÀgÀÄUÀ¼ÀÄ UÉÆwÛgÀĪÀÅ¢®è. ¤£Éß ¢£À ªÀÄzsÁåºÀß 2 UÀAmÉ ¸ÀĪÀiÁjUÉ £Á£ÀÄ ºÁUÀÆ ±ÀAPÀgÀ£ÁAiÀÄÌ E§âgÀÄ avÀæzÀÄUÀðPÉÌ §A¢gÀÄvÉÛãÉ. - 18 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 £ÁªÀÅ avÀæzÀÄUÀðzÀ §¸ÀÄì ¤¯ÁÝtzÀ¯Éè EzÁÝUÀ £ÀªÀÄä£ÀÄß £ÉÆÃr ¥ÉÆðøÀgÀÄ ZÀ¼ÀîPÉgÉ ¥ÉÆðøï oÁuÉUÉ PÀgÉzÀÄPÉÆAqÀÄ §A¢gÀÄvÁÛgÉ." 18. Perusal of the aforesaid statement in Ex.P13 would indicate that there is no whisper either regarding the appellant forcibly taking her or inducing her or committing any sexual assault on her. The said statement has been recorded on 23.07.2015. Thereafter, in a further statement given to the police on 22.01.2017, the respondent-police wherein for the first time the victim-PW15 had disclosed that the appellant had sexually assaulted her on several occasions and she had not disclosed about the same before the Magistrate while recording the statement out of shy and fear. The respondent-Police had sent a requisition to the trial Court to insert provisions of Section 376 and Section 4 of POCSO Act, 2012. 19. The respondent-police have not arraigned any relatives of the appellant namely Venkatesh Naik and Lakshmi Bai as the accused. However, they have been examined as PW4 and PW5 respectively. The said witnesses during the cross- examination have turned hostile and not supported the case of the prosecution. - 19 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 20. Necessary to note that as per the statement of the victim-PW15 herself, she traveled with appellant from Challakere to Chitradurga and Chitradurga to Hubbali. She has not whispered anywhere as to she making any attempt to invite the attention of any of the public or to raise any alarm about she being taken forcibly by the appellant under threat. It is necessary also to note that both the appellant and the victim have stayed at the residence of PW.4-Venkatesh Naik and PW.5-Lakshmi Bai between 01.07.2015 and 22.07.2015. As per her version the said persons used to go in the morning at 09.00 a.m. and return in the evening and in their absence appellant was sexually assaulting her under threat. This deposition of the victim-PW15 does not evince credibility. It is incomprehensible that the victim-PW15 could travel whole day on 01.07.2015, changing buses in the public without trying to escape from the clutches of the appellant or seeking help of public. That apart she stayed between 01.07.2015 and 22.07.2015 in the house of PW.4-Venkatesh Naik and PW.5- Lakshmi Bai and in all these days she did not even make any attempt to contact her parents or even resist and seek the help of said PW.4-Venkatesh Naik and PW.5-Lakshmi Bai. - 20 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 21. Further PW-17- Dr. Jayalakshsmi referring to the wound certificate at Ex.P22 in her deposition has stated there are no visible external injuries found and no injuries were found over the genital. This indicates there has been no physical violence of any nature. Such circumstances lead to the inference that relation if any between PW15 and accused was consensual one. 22. The Apex Court in a case involving identical facts, adverting to the offences punishable under Sections 363, 366 and 376(2)(n) of IPC in the case of Kuldeep K Mahato Vs State of Bihar reported in (1998)6 SCC 420 has at paragraph 11 has held as under: "11. Then coming to the conviction of the appellant under Section 376 IPC, although both the courts below have held after accepting the evidence of the prosecutrix as being truthful that the appellant had forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The medical evidence of Dr Maya Shankar Thakur, PW 5 also indicates that there were no injuries on the person of the prosecutrix including her private parts. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that - 21 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result that her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant." (emphasis supplied) 23. Similarly in the case of Gabbu Vs State of M.P. reported in (2006)5 SCC 740 at paragraphs 11 and 12 has held as under: "11. Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as a charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC. 12. We have gone through the statement of the prosecutrix. The prosecutrix nowhere alleged that she was abducted with the intention to commit an offence, that she was compelled to marry the accused or any other person or that the accused knew that she would - 22 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 be forced or seduced to illicit intercourse or that it was likely that she would be forced or seduced to illicit intercourse." 24. From the close scrutiny of the evidence as rightly pointed out by the learned counsel for appellant there has been constant improvisation by the victim PW15 in her statement recorded on 23.07.2015 under Section 164 of Cr.P.C., before the Magistrate and subsequent statement recorded on 22.01.2017 under Section 161 of Cr.P.C. In the circumstances this Court is of considered view that prosecution has failed to prove beyond reasonable doubt that the appellant herein is guilty of the offences punishable under Sections 366 and 376 (2)(n) of IPC. 25. In view of the aforesaid fact situation of the matter, this Court does not see any reason to convict the appellant for the offences punishable under Sections 363, 366 and 376(2)(n). Accordingly, following: ORDER I. The appeal is allowed. II. The impugned judgment and order of conviction and sentence in Spl.C.(POCSO)No.66/2017 passed by - 23 - HC-KAR NC: 2025:KHC:30735-DB CRL.A No. 979 of 2018 Special Judge, II-Additional District and Sessions Judge, Chitradurga is hereby set aside. III. Appellant/accused is acquitted of the charges for the offences punishable under Sections 363, 366, 376(2)(n) of IPC and Sections 4,6,8 of POCSO Act. IV. Appellant/accused shall be set at liberty forthwith, if his detention is not required in any other cases. V. Fine amount deposited, if any, shall be refunded to the appellant. VI. Order of the trial Court with regard to disposal of the properties and reference of the matter to DLSA for determination of compensation is maintained. VII. Communicate copy of this order to the trial Court and concerned prison forthwith. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE RL/SBN List No.: 1 Sl No.: 12