JUDGMENT : 1. This is an appeal filed by the accused person against the judgment of conviction and sentence passed by the learned Special Judge, Uttara Kannada, Karwar, dated 13.07.2017 in S.C.No.20/2015 for the offences punishable under Sections 376 and 366 of the Indian Penal Code (hereinafter referred to as “IPC” for short) read with Section 4, 5(L) and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO the Act” for short). 2. The brief facts for purpose of appeal are as under: According to complainant, on 13.08.2012 at 7.30 a.m. when the victim had gone to wash her clothes, this accused followed her. He induced the victim to marry him and thereby he forcibly committed sexual assault on her. On 24.12.2012 also he took her to Kelgeri village in Dharwad taluk. Therefore the parents of the victim had filed a complaint before the jurisdictional police on 03.01.2013. Accordingly, Crime No.3/2013 was registered against the accused for the alleged offences. Accused was arrested during the course of the investigation. After investigation of the case, the police have filed the charge sheet against the accused for the offences punishable under Sections 376 and 366 of IPC and sections 4, 5(L) and 6 of the POCSO Act. 3. The Special Court took the cognizance of offences alleged. After hearing both the sides, the learned Special Judge framed charge against the accused. The accused pleaded not guilty. Consequently the Learned Special Judge conducted trial of the case. 4. On the basis of the evidence available on record, the Special Judge found that the prosecution has proved the guilt of the accused beyond any reasonable doubt. Therefore, the learned Special Judge convicted the accused for the offences punishable under Sections 376 and 366 of IPC read with Section 4, 5(L) and 6 of POCSO Act, 2012 and imposed sentence as follows: “The accused is ordered to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.10,000/-for the offence punishable under Section 376 of Indian Penal Code r/w Section 5, 5L and 6 of the Protection of Children from Sexual Offices Act, 2012 and in default of payment of fine he is directed to undergo SI for a period of two years. The accused is also ordered to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.10,000/-for the offence punishable under Section 366 of Indian Penal Code and in default of payment of fine he is directed to undergo SI for a period of two years. Both sentences are ordered to run concurrently. The period during which the accused is in custody is to be taken in to consideration before computing the period of imprisonment.” 5. The said judgment has been assailed before this Court on the following grounds: It is contended that the judgment of conviction and sentence passed by the learned Special Judge is not in accordance with law. The mother of the victim is a hearsay witness. There is no chain of link with each circumstances relied on by the prosecution. The Trial Court has not properly appreciated the oral and documentary evidence. The provisions of POCSO Act, 2012 were not at all applicable as the alleged offence was committed on 13.08.2012. The Act has come into force on 24.11.2012. Hence, the conviction is liable to be set aside. The amendment to Section 375 of IPC came into force on 03.02.2013. Therefore, it was not applicable to the case in hand. There is no evidence to prove that the accused was responsible for the pregnancy of the victim. The alleged incident is said to have taken place on 13.08.2012. But the medical report at Ex.P.8 shows that the fetus was 24 weeks old. Therefore the victim was pregnant before the alleged incident. There is no evidence on record to show that accused had kidnapped the minor girl with any intention. The guilt of the accused was not proved beyond any reasonable doubt. The Trial Court has not properly appreciated the fact that the evidence of victim PW.10 is tutored or one. She even does not know where her child is. Hence for all the above reasons prayed to acquit him for all the charges leveled against him. 6. The learned counsel for the appellant submitted that the age of the victim has not been proved to be less than 18 years. She was major as on the date of alleged offences. Sections 4 and 5 of the POCSO Act. 2012 are not at all attracted. The victim had already become pregnant as on the date of alleged incident as per the medical report. She was major as on the date of alleged offences. Sections 4 and 5 of the POCSO Act. 2012 are not at all attracted. The victim had already become pregnant as on the date of alleged incident as per the medical report. The charge sheet was filed only for the offences punishable under sections 376 and 366 of IPC. But the trial court invoked the provisions of POCSO Act, 2012. The age of the victim is assessed approximately. The radiologist has not been examined. The doctor PW5 was not competent to give age certificate. Guilt of the accused has not been proved beyond any reasonable doubt and prayed to allow the appeal and acquit the accused of all the charges leveled against him. 7. The learned Additional Government Advocate submitted that the offences alleged against the accused are proved beyond any reasonable doubt. The victim was below 18 years. Looking from any angle, the trial court has given proper reasons with regard to assessment of the age and the offences committed by the accused. The judgment of the trial court is based on the evidence available on record. Therefore, the Additional Government prayed to dismiss the appeal. 8. On basis of the arguments of both the parties, the following points that would arise for consideration of this Court: (1) Whether the appellant proves that as on the date of alleged offence the POSCO Act had not come into force and therefore he is not liable to be convicted under the provisions of the said Act? (2) Whether the prosecution had proved beyond any reasonable doubt that the accused on 13.08.2012 at 7.30 p.m., within the limits of Vadnal village near a bridge in a secured place he had committed rape on the victim and thereby he had committed offence punishable under Section 376 of IPC and under Section 4 of POSCO Act? (3) Whether the prosecution had proved beyond any reasonable doubt that from 24.12.2012 the accused had abducted by inducing the victim and had kept her in a shed at Kelgeri of Dharwad town and thereby committed an offence punishable under Section 366 of IPC? (4) Whether the prosecution had proved beyond any reasonable doubt that in the above mentioned place also the accused had committed penetrative to sexual assault on the victim and thereby had committed the offence punishable under Sections 5(L) and 6 of the POSCO Act? (4) Whether the prosecution had proved beyond any reasonable doubt that in the above mentioned place also the accused had committed penetrative to sexual assault on the victim and thereby had committed the offence punishable under Sections 5(L) and 6 of the POSCO Act? (5) What order? 9. Point No.1 : In the negative: Though the Act had come into force on 14.11.2012 i.e., subsequent to the alleged date of incident i.e., on 13.08.2012. But the act of the accused has not stopped there only. After committing rape on her on 13.08.2012, he also kidnapped and abducted her under inducement and took her to a shed situated in Kelgeri village of Dharwad Taluk, which was on 24.12.2012. In the said shed also, the accused has repeatedly committed act of sexual intercourse on the victim. By that time, the act in question had come into force. Therefore, the offences committed by the accused is continuing one. By the time the victim and accused were traced, the victim was also pregnant by about 24 weeks. Therefore, the trial court has rightly come to the conclusion that the accused can be convicted for the offences under the provision of POSCO Act, 2012. If the prosecution charge was only for the incident that occurred on 13.08.2012, then the POSCO Act, 2012 would not have been applicable. By that time the accused kidnapped the girl and the act in question had come into force. Therefore, the point No.1 is answered in the negative. 10. Point Nos.2 to 5 : To prove the fact of missing of the victim, there is evidence of PW.1. She has categorically stated that her daughter was aged about 15 or 16 years at the time of filing of the complaint. The accused was known person to the family of the complainant. They were working together in a brick factory. Both of them are from other states. On account of missing of her daughter, her husband had filed a complaint before the police. After tracing the accused by the police, she had filed a complaint before the police at Ex.P.1. She has further stated that the accused was already married person and the accused knew that her daughter was aged about 15 or 16 years. 11. In the cross-examination of PW.1 it is elicited that, the accused had given a mobile phone to her daughter. They were talking with each other. She has further stated that the accused was already married person and the accused knew that her daughter was aged about 15 or 16 years. 11. In the cross-examination of PW.1 it is elicited that, the accused had given a mobile phone to her daughter. They were talking with each other. She was missing from the evening after 4.30 p.m. She denied that they wanted to marry minor girl to somebody and their daughter had refused for the same. Therefore presuming that the accused is responsible for the refusal by their daughter, they have filed a false complaint. Apart from that nothing is elicited in the cross-examination to disbelieve the version of PW.1. In the further evidence also, she has spoken about her daughter was pregnant by 4 months and she has told that the accused is the person responsible for the same. The child born has been given to a orphanage at Karwar. 12. PW.2 is the contractor. He has stated that the accused, complainant, her husband and as well as her daughter were working in his brick factory. He had attested the place of mahazar where the accused and victim had traced at Ex.P.2. The photographs are Exs.P.3 to 5. Sketches are Exs.P.6 and 7. According to him he did not know the age of the victim. Then suggestions are made that are denied. His evidence corroborates the fact that the accused was known to the victim as well as her parents. Therefore, there is no dispute regarding the identification of the accused, even that is not made out by the defence. 13. PW.3 is the watchman. He has stated that he has seen the accused and the victim. He has introduced the victim as his wife. They stayed in the shed for two days and thereafter they went to some other places. When the police had came to the shed, accused was not there. He has not shown the accused as he is was staying in his shed. Therefore, there is no reason to disbelieve the evidence of this witness. 14. PW.7 is the Assistant Engineer who had prepared the sketch of the scene of offence. PW.8 is the Police Constable who was entrusted to trace the accused and as well as the victim. He has not shown the accused as he is was staying in his shed. Therefore, there is no reason to disbelieve the evidence of this witness. 14. PW.7 is the Assistant Engineer who had prepared the sketch of the scene of offence. PW.8 is the Police Constable who was entrusted to trace the accused and as well as the victim. Then he went to the shed where they were staying at Kelgeri, then brought the accused and as well as victim to the police station. Then he had taken the victim for medical examination. He has identified the accused and the victim. Except suggestions nothing is elicited in the cross examination of this witness to disbelieve the evidence of this witnesses. 15. PW.9 is the Investigating Officer before whom the missing complaint was filed at Ex.P.19 and FIR is at Ex.P.20. His evidence corroborates with the evidence of PW.8 tracing the accused and as well as the victim. He had received complaint from the mother of the victim at Ex.P.1 and FIR Ex.P.21. He had sent the victim to the hospital and had arrested the accused. Further investigation was given to the Circle Police Inspector. It is denied since the victim had become pregnant and at the instance of the mother created the missing complaint etc., nothing is elicited in the cross-examination to show that the police officer had any ill-will or grudge against he accused to implicate him in the false case. 16. The important evidence is that of PW.10 the victim. She has categorically stated about the accused visiting their house and taking meals with them. That shows that the accused was acquainted with the complainant and as well as her family members. Therefore, she must have fallen to the words of the accused who told her that he will marry her and which show assurance in-spite of her objections he had sexual intercourse with the girl on many occasions. Then the accused took her in an autorikshaw to Kelgeri village and kept in a shed and had intercourse with her. Thereafter she has deposed about police coming to the shed and taking them to the police station. She was also deposed about the examination by the doctor. She had shown the place of incident to the police. Mahazar at Ex.P.2, sketches at Exs.P.6 and 7. Ex.P.3 photograph she is also appearing. Thereafter she has deposed about police coming to the shed and taking them to the police station. She was also deposed about the examination by the doctor. She had shown the place of incident to the police. Mahazar at Ex.P.2, sketches at Exs.P.6 and 7. Ex.P.3 photograph she is also appearing. The photograph of the shed is as per the Ex.P.4. She identified the place at Ex.P.3 and Ex.P.4. She gave birth to a child which was given to orphanage. She has been questioned with regard to her age. According to her she was 16 years old. The accused had asked her to marry him and she has also asked him, but he has not disclosed her that he was already married. The said fact has not been told before the police. It is also suggested that the accused was assuring that he will marry her. She admits that her parents were not agreeing their marriage with the accused and she has not told the said fact to the parents. She denies that her parents were trying to marry her against her will and therefore she left the house. She denies that she was 19 years old when the complaint was filed. 17. On perusal of the evidence, I find that absolutely there is no reasons to disbelieve the evidence of prosecutrix. It clearly proves that the accused had induced her, lured her and had intercourse with her. 18. PW.11 is the father of the victim. From his evidence also it is cleared that the accused was acquainted with the family. After coming to know his daughter had gone with the accused, he has filed a missing complaint at Ex.P.19. Then his wife also after coming to know about the incident had filed a complaint before the police. When the girl was traced, she was five months pregnant. According to him his daughter has not at all going to school and they have no documents to show her date of birth. He admits that at the time of filing of complaint age of her daughter is 16 years. Apartment from that nothing is elicited in the cross examination. 19. The conducting of the mahazar and drawing of sketches by the Investigating Officer PW.12 is corroborated by the evidence of prosecutrix. He has collected medical documents of the victim. 20. He admits that at the time of filing of complaint age of her daughter is 16 years. Apartment from that nothing is elicited in the cross examination. 19. The conducting of the mahazar and drawing of sketches by the Investigating Officer PW.12 is corroborated by the evidence of prosecutrix. He has collected medical documents of the victim. 20. Now I shall turn to the evidences of doctors who had examined the victim. They are PW.8 –Gynecologist, she found that 24 weeks old fetus in the womb of the victim that was ascertained on the basis of scanning to know the gestational age again it is a gazette which measures the age of the fetus based on the growth of the child and placenta. 21. Therefore, the learned counsel for the accused submitted that if 24 weeks is taken then the girl was found to have been pregnant one month prior to the incident and therefore the prosecution case cannot be believed. His argument is totally devoid of any merits because there is a clear evidence of prosecutrix regarding sexual intercourse made by the accused with her. As already stated the scanning machine gives the age of the fetus based on the growth of the child in the womb. She has also referred the victim to the dentist and radiologist. Based on that, her age was assessed between 14 and 17 years. The OPD slip is at Ex.P.9. Report of another doctor is at Ex.P.10. Based on that, she has given a report at Ex.P.11. 22. In the cross-examination it is elicited that she has not seen the reports of the dentist and radiologist. Those two reports would be helpful in assessing the age. But she categorically denied that the age of the victim was 18 years completed. According to her, age assessed by them is based on scientific method. 23. PW.5 is the doctor who had examined the accused and has given report of his capability of performing the act like intercourse. The report is at Ex.P.12. 24. PW.6 is the senior specialist working in the District Hospital, Karwar. He has deposed that, Dr.Chandrakala a dentist in their hospital and radiologist Dr.Nagaraj had examined the girl and given report and taken the x-ray films etc. Those materials produced at Ex.P.13 to 15. The photograph of the lower jaw is at Ex.P.16. OPD slip is at Ex.P.9. 24. PW.6 is the senior specialist working in the District Hospital, Karwar. He has deposed that, Dr.Chandrakala a dentist in their hospital and radiologist Dr.Nagaraj had examined the girl and given report and taken the x-ray films etc. Those materials produced at Ex.P.13 to 15. The photograph of the lower jaw is at Ex.P.16. OPD slip is at Ex.P.9. Based on that, she has given report at Ex.P.10 and opined that the victim was aged about 14 to 17 years old. 25. In the cross examination, it is admitted that the age will be assessed based on the growth of bones and joints. It is admitted that, there is difference of growth of bones between the well built person and a non well built person. But categorically stated that there is no difference between the epiphysis fusion, that is taken into consideration while assessing the age. It is denied that in case of muscular dystrophy, Hypothyroid and Osteoposis etc., there will be change in the growth of the bones etc., are denied. 26. Based on the medical evidence I find that the victim was definitely below the age of 18 years old as on the date of incident, even thereafter till she was traced. Therefore, the conclusion of the trial court that the accused committed the offences is based on material evidence on record. I have no reason to differ from the finding given by the trial court. Alleged offences were stand proved. The accused had intercourse with the victim for several times and made her pregnant. Therefore, act in question was continuous one and it attracts provision of section 4 of the POCSO Act. Wherever by force, compels or any by deceitful means induces, any person to go from any places is said to abduct that person. If the kidnapping or abducting or inducing a woman to compel her marriage is committed, it attracts section 366 of IPC. The accused knew that by his act the victim will be forced or seduce to illicit intercourse, then constitute an offence punishable under Section 366 of IPC. Therefore, the act of the accused having intercourse with the child repeatedly constitutes offence of penetrative sexual assault. 27. The evidence on record clearly proved that the sexual assault on the child for more than ones or repeatedly, therefore it attracts section 5(L) of the POCSO Act. Therefore, the act of the accused having intercourse with the child repeatedly constitutes offence of penetrative sexual assault. 27. The evidence on record clearly proved that the sexual assault on the child for more than ones or repeatedly, therefore it attracts section 5(L) of the POCSO Act. POCSO Act relied on certain authorizes by trial court. The Trail Court has already initiated the said authorities and rightly applied the principle laid down in the said authorities. 28. Therefore, I have no reason to differ. Hence looking from any angle, I find that there is no merit in this appeal. The prosecution had proved the guilt of the accused beyond reasonable doubt. Hence there are no grounds to allow the appeal. For the above said reasons the Point Nos.2 to 5 are answered in the affirmative and I proceed to pass the following: ORDER 1. Appeal filed by the accused is dismissed. 2. The impugned judgment of conviction and sentence imposed on the accused by the Special Judge, Uttara Kannada District, Karwar in Special Case No.20/2015 dated 13.07.2017 sentencing the accused for the offences punishable under Sections 376 and 366 of the Indian Penal Code read with Section 4, 5(L) and 6 of the Protection of Children from Sexual Offences Act, 2012 is hereby confirmed. 3. Send back the records along with judgment of this Court.