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2022 DIGILAW 1508 (KAR)

State of Karnataka v. Rangaswamy @ Manja

2022-11-28

C M JOSHI, K.SOMASHEKAR

body2022
JUDGMENT : K.Somashekar, J. This appeal is filed challenging the judgment of acquittal rendered by the Court of the Prl. District and Sessions Judge, Chamarajanagar, in S.C.No.65/2014 dated 02.06.2016 acquitting the accused for offences punishable under Sections 366A, 344, 376 of the IPC, 1980 and for offences under Section 5(j)(ii) and 5(1) of the POCSO Act, 2012 read with Section 376(2)(n) of the IPC. This appeal has been filed by the State seeking to set-aside the judgment of acquittal rendered by the Trial Court and to consequently to convict the accused / Respondent No.1 herein for the offences leveled against him. 2. Heard the learned HCGP Shri Abhijith K.S. for the appellant / State and the learned counsel Shri Syed Akbar Pasha for Respondent No.1 / accused. Respondent No.2 / complainant though served, remains absent and unrepresented. Perused the judgment of acquittal rendered by the Trial Court in S.C.No.65/2014 consisting the evidence of PW-1 to PW-19 and several documents which were got marked at Exhibits P1 to P26. 3. The factual matrix of the appeal is as under: It transpires from the case of the prosecution that the complainant / Nagappa son of Kariyappa none other than the father of the victim, had filed a complaint as per Exhibit P1 stating that his daughter / victim whose date of birth was 30.05.1997 and who had studied upto 7th Std and thereafter discontinued her studies, was residing with her parents. During January 2014, the complainant / PW-1 along with his wife and daughter had been to Chikkallur fair of Kollegal Taluk and they had stayed there. At that time, one Manja son of Mahadevaiah of Utthuvalli village had also come for the said fair and he had gone to the complainant and introduced himself as belonging to Lingayath community of Madalavadi and complainant believed the words of said Manja /accused and talked with him and he also supplied food to him and at that time the accused also befriended the daughter of complainant. It is further averred that on 02.03.2014, the complainant and his wife had gone to attend Aradhana of Padaguru Mutt by leaving their daughter alone in the house. But when they came back in the evening from the said Aradhana function of Padaguru Mutt, they found their daughter missing. The complainant though enquired about his daughter's whereabouts with his neighbourers, they did not know anything. But when they came back in the evening from the said Aradhana function of Padaguru Mutt, they found their daughter missing. The complainant though enquired about his daughter's whereabouts with his neighbourers, they did not know anything. The daughter of the complainant though had a mobile phone, it was stated that the complainant was not aware of its number and hence had enquired his relatives and others, but his daughter was not traced and in the meantime the wife of the complainant was not keeping well. He had not filed any missing complaint till then. 4. It is further averred that on 20.05.2014, the wife of younger brother of complainant by name Dharmavathi had been to the fair of Chamarajanagar and when Dharmavathi was proceeding in an autorickshaw in Utthuvalli village, she saw the victim / daughter of complainant who had closed her face with the pallu of her saree and she was proceeding with one boy. The said Dharmavathi had intimated the said fact to the complainant. Thereafter, complainant went to Utthuvalli village and searched for his daughter but she was not traced. However, he came to know from the residents of Utthuvalli that Manja, son of Mahadevaiah had brought one girl stating that he had married her. But he was not there in the house and they were not aware as to where he had gone. Coming to know of the same, the complainant had requested the police to trace his daughter and to take action against the accused. He lodged the complaint on 06.07.2014 at about 11.30am with the PSI, Terekanambi Police Station. Shri N.Kumaraaradhya / PW.19, who received the said complaint, had registered the case and sent the FIR to the Court. Subsequent to registration of the crime, PW.19 / PSI had visited the scene of crime i.e., the house of the complainant on same day and conducted mahazar in the presence of panch witnesses. Thereafter PW.19 searched for accused and victim girl from 07.07.2014 to 17.07.2014 and PW.19 on receiving credible information on 18.07.2014 that the accused and victim girl were in Yelakkuru village, he went to Yelakkuru village and brought the accused and victim girl. Thereafter PW.19 recorded the voluntary statement of accused and got examined both accused and victim girl in Government Hospital, Gundlupet. Thereafter PW.19 recorded the voluntary statement of accused and got examined both accused and victim girl in Government Hospital, Gundlupet. PW.19 / I.O. then completed investigation and laid the charge-sheet against accused before the Committal Court for the offences reflected in the charge-sheet. 5. It is further averred that on 18.07.2014, the accused was apprehended and was produced before the JMFC, Gundlupet and he was remanded to judicial custody. On filing of the charge-sheet by the I.O. against the accused, the Committal Court had secured the accused and committed to the Court of Sessions for trial. The case was assigned S.C.No.65/2014. The Trial Court, after hearing the arguments of the learned Public Prosecutor and the Defence Counsel had framed charges for offences punishable under IPC, 1860 and so also for offences under the POCSO Act, 2012, wherein the accused did not plead guilty but claimed to be tried. Subsequent to framing of charges, the prosecution had let in evidence by subjecting to examination PW-1 to PW-19 and got marked several documents at Exhibits P1 to P26. Subsequent to closure of the evidence on the part of the prosecution, the accused was subjected to examination as required under Section 313 of the Cr.P.C. relating to incriminating evidence appearing against him. Accordingly, the evidence of the prosecution was brought to the knowledge of the accused and his statement was recorded wherein the accused had declined the evidence of the prosecution adduced so far. Accordingly it was recorded. Subsequently, the accused was called upon to enter into defence evidence as contemplated under Section 233 Cr.P.C. But the accused did not come forward to adduce any defence evidence. Accordingly, it was recorded. 6. Subsequently, the Trial Court had heard the arguments advanced by the learned Public Prosecutor and so also the counter arguments advanced by the Defence Counsel for the accused. The Trial Court, after dwelling in detail as regards the evidence of PW.1-Nagappa and PW.4- Nagamallamma, parents of victim girl, PW.2 / victim girl. Accordingly, it was recorded. 6. Subsequently, the Trial Court had heard the arguments advanced by the learned Public Prosecutor and so also the counter arguments advanced by the Defence Counsel for the accused. The Trial Court, after dwelling in detail as regards the evidence of PW.1-Nagappa and PW.4- Nagamallamma, parents of victim girl, PW.2 / victim girl. PW.3 / Guruswamy and PW.6 / Mahadevappa who were panch witnesses to spot mahazar marked at Ex.P.2; PW.5 / Dharmavathi, another material witness who is a relative of complainant who had observed the victim girl in Utthuvalli Village subsequently intimated the same to complainant; PW.7 / Murthy and PW.8 / Dundaiah belonging to the village of accused Utthuvalli, who had observed the accused having brought the victim girl to his house; PW.9 / Raju, PW.10 / Mahadeshwara Shankri and PW.11 / Rechappa, who are panch witnesses to Ex.P.13 mahazar, which was conducted in Yelakkuru village, where accused had kept the victim girl for some days from where the police took accused and victim girl to their custody; PW.12 / Shankaraiah, a relative of accused who has been examined to prove that the accused had brought the victim girl and kept the victim girl in his house at Yelakkuru village; PW.13 / Govindaiah, PW.15-Ajith Kumar, being panch witnesses to Ex.P.17 mahazar, which was conducted in the house of PW.12 / Shankaraiah at Yelakkuru village; PW.14 / Natarajan who was the Headmaster of Higher Primary School, Bommanahalli village, who has issued date of birth certificate, admission register extract of the victim girl to prove her date of birth; PW.16 / Dr.Lalitha, the lady medical officer who examined the victim girl and issued certificate as per Ex.P.20; PW.17 / Dr. Nagendramurthy being another medical officer who examined the accused and issued certificate as per Ex.P.21; PW.18 / Siddaiah being the Village Accountant, who has issued assessment register extract marked at Ex.P.22; PW.19 / N.Kumararadhya being the PSI, Terekanambi Police Station, who received the complaint and registered the case and investigated the matter and submitted charge sheet against accused. 7. PW-19 / I.O. had secured the certificate relating to the date of birth of the victim girl maintained by the Registrar of births as per Exhibit P24. Exhibit P18 is the school admission certificate and Exhibit P19 is the copy of the School Admission Register extract. 7. PW-19 / I.O. had secured the certificate relating to the date of birth of the victim girl maintained by the Registrar of births as per Exhibit P24. Exhibit P18 is the school admission certificate and Exhibit P19 is the copy of the School Admission Register extract. The same revealed the age of the victim to be 17 years at the time of the incident. However, Exhibit P24 revealed the age of the victim to be 16 years at the time of the incident. Hence, she was below the age of 18 years at the time of the incident and hence, consent of the victim girl for abduction as well as sexual intercourse on her, is immaterial in view of the fact that she was a minor as on the date of the alleged incident. This observation has been made by the Trial Court to arrive at the conclusion that the prosecution has proved that the victim girl was a minor as on the date of the incident. 8. These are all the evidence which have been got marked on the part of the prosecution. The Trial Court having thoroughly gone through the evidence inclusive of the fulcrum of the several mahazars, had rendered an acquittal judgment relating to offences under the IPC as well as under the POCSO Act, 2012. But the Trial Court had commanded the evidence of PW-2 / victim girl which assumes more importance, who has stated in her evidence that she did not know the accused and accused was not introduced to her in Chikkallur fair and she had not talked with accused over the phone. Further, she had also stated that her marriage was not fixed with the son of her maternal aunt by name Mahendra and she had not intimated said fact to the accused on 02.03.2014 and accused had not committed rape on her and she had not become pregnant. However, it is pertinent to note that PW-2 has clearly admitted that she has a child aged about 1 year. When a question was posed by the learned Spl.Public Prosecutor as to who was the cause for said child, the victim girl did not answer and she kept quite for about 2 or 3 minutes and thereafter she started to weep and same is recorded in the deposition. When a question was posed by the learned Spl.Public Prosecutor as to who was the cause for said child, the victim girl did not answer and she kept quite for about 2 or 3 minutes and thereafter she started to weep and same is recorded in the deposition. Though PW.2 was treated as hostile by the prosecution and cross examined by Learned Spl.Public Prosecutor, she did not admit that during 2014, when she had been to Malai Mahadeshwara Hills, she came to know the accused and thereafter accused was talking over the mobile phone and she had got exchanged the mobile phone with accused and therefore intimacy developed in between them. She further denied that thereafter they had been to Chikkellur fair and they had talked with accused at that time. She further clearly denied that her marriage was fixed with son of her maternal uncle during March 2014 and she was not willing for the same and therefore she intimated said fact to the accused over the phone on 01.03.2014 and then on 02.03.2014, when her parents had been to Padaguru for Aradhana, the accused came and took her to Bangalore. She further clearly denied that the accused had taken her to Bangalore and thereafter to Sri Rangapatna and then he had kept her in Utthuvalli. She also denied in her cross-examination that about 2 or 3 months of her missing when she was in Utthuvalli, her relative PW.5 had observed her from Tempo. She also denied that though order was passed by this Court on 20.01.2015 asking her to give blood for DNA test, she did not agree for the same. Hence, DNA test was not conducted by drawing the blood of PW.2, accused and the child. A suggestion was made to PW.2 by the Spl.Public Prosecutor during the course of her cross-examination that she did not agree to give blood sample for DNA test only on the ground that it would prove the paternity and accused will be punished. But she denied the same. But during the course of her cross-examination, she stated that she was 18 years old in the year 2014. But as per Ex.P.24, her date of birth is 02.05.1998 and she was 16 years old at the time of incident. But she denied the same. But during the course of her cross-examination, she stated that she was 18 years old in the year 2014. But as per Ex.P.24, her date of birth is 02.05.1998 and she was 16 years old at the time of incident. Though this PW.2 was cross examined at length after treating her hostile by Learned Spl.Public Prosecutor, nothing worth was elicited through her mouth to show that she was kidnapped by the accused with an intention to have sexual intercourse with her and subsequently accused had committed penetrative sexual assault on her. Hence, the Trial Court has held that the evidence of PW.2 does not come to the aid of the prosecution to prove the ingredients of offence. Since PW.2 denied that she was kidnapped by accused and she was sexually assaulted by accused, the evidence of PWs.1, 4 and 5 cannot be relied on whose say is based on the version of the victim girl. On these grounds, the Trial Court has rendered an acquittal judgment by extending the benefit of doubt in favour of the accused. It is this judgment which is under challenge in this appeal by urging various grounds. 9. It is contended by the learned HCGP for the appellant / State by referring to the evidence of the prosecution witnesses and mainly on the evidence of PW-1 who is none other than the complainant as well as the evidence of PW-2 the victim girl. It is contended that the Trial Court has not properly considered the evidence of P.Ws.1, 4 and 5 who have deposed in support of the prosecution case. In spite of their evidence, the Trial Court has acquitted the accused holding that there is no cogent and convincing evidence to connect the accused with the offences charged against him and that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt, hence, the findings of the Trial Court have resulted in a miscarriage of justice. 10. It is further contended that the Trial Court has not properly appreciated the evidence of P.W.19 / Dr. Kumaraaradhya, who has deposed that the accused was arrested when he was with the victim girl. This fact is not disputed by the accused and it is for the accused to have explained as to how the minor girl who was in his custody, became pregnant. Kumaraaradhya, who has deposed that the accused was arrested when he was with the victim girl. This fact is not disputed by the accused and it is for the accused to have explained as to how the minor girl who was in his custody, became pregnant. In the absence of any explanation, it has to be presumed that the accused has committed sexual assault on victim girl. 11. There is no dispute with regard to the fact that the victim girl was a minor as on the date of the alleged incident and there is no dispute with regard to sexual assault on the victim girl from the evidence produced by the prosecution. Hence, it is contended by the learned HCGP that the prosecution has prima facie proved that the accused has committed heinous offence on the victim girl. Hence, the judgment and order of acquittal is not in accordance with law. 12. It is further contended that the Trial Court has not properly appreciated the evidence of P.W.2 wherein it has come in the evidence of P.W.2 that she has a child aged about 1 year. This evidence corroborates with the evidence of the Doctor, who examined the victim girl and in Column 0.12 of Ex.P.20-Medical report, the history given by the victim is that there was sexual assault by the accused on her many times and also there is presumption under Section 29 of POCSO Act, 2012 that the accused alone was the cause of her pregnancy and is the father of her child aged one year. These are the evidence which have been put forth on the part of the prosecution. However, the Trial Court has failed to appreciate the evidence on record in a proper perspective. Hence, the Trial Court ought to have drawn inferences in favour of the prosecution and ought to have granted an order of conviction. Hence, the judgment and order of acquittal has resulted in a miscarriage of justice. 13. It is the further contention of the learned HCGP that the Trial Court has failed to appreciate the evidence of the prosecution and materials produced by the Prosecution in order to prove the guilt of the accused in its right perspective. As such, the learned Trial Court has come to a wrong conclusion and thereby acquitted the accused for the offences charged against him. 14. As such, the learned Trial Court has come to a wrong conclusion and thereby acquitted the accused for the offences charged against him. 14. It is further contended that the reasons assigned by the Trial Court in acquitting the accused, in spite of prosecution placing sufficient evidence on record, is not proper and convincing and the same requires interference by this Court. Thus, it is contended that viewed from any angle, the impugned judgment passed by the Trial Court is contrary to facts and material evidence on record. Hence, the learned HCGP prays to allow the appeal and consequently to set aside the impugned judgment of acquittal rendered by the Trial Court and convict the appellant for the offences charged against him. 15. Per contra, learned counsel Shri Syed Akbar Pasha for the respondent / accused has taken us through the evidence PW-1 / Nagappa and PW-4 / Nagamallamma who are parents of PW-2 / victim. Their evidence is contrary to the evidence of PW-2 that she has given birth to a child. Her evidence is not corroborated with the evidence of PW-1 as regards the allegation of abduction of his minor daughter. The evidence of PW-5 / Dharmavathi, relative of PW-1 not only suffers from inconsistencies and contradictions but is also contrary to the evidence of PW-6, PW-7, PW-8, PW-9, PW-10, PW-11, PW-12 and PW-13 who are the witnesses who have been subjected to examination but they did not withstand the versions of their statements and their evidence are contrary to the evidence of PW-1, PW-4 and PW-5 who are material witnesses relating to abduction of the victim girl. Even her date of birth indicated in the school admission register at Exhibit P19 and even School Admission Certificate at Exhibit P18 these are material evidence. But the mahazar at Exhibit P2 and another mahazar at Exhibit P13 and another mahazar at Exhibit P20 these are the mahazars subjected by the I.O. in the presence of PW-18, PW-19, PW-3 and PW-9 to PW-11. But the panch witnesses did not withstand the versions of their statements. 16. But the mahazar at Exhibit P2 and another mahazar at Exhibit P13 and another mahazar at Exhibit P20 these are the mahazars subjected by the I.O. in the presence of PW-18, PW-19, PW-3 and PW-9 to PW-11. But the panch witnesses did not withstand the versions of their statements. 16. It is further contended by the learned counsel for the respondent / accused that PW.16-Dr.Lalitha, Medical officer who examined the victim girl has stated in her evidence that on 18.07.2014, at 3.00 pm, PW.2, the victim girl was brought by Woman PC 516 and the victim girl gave history that she had sexual intercourse with one Manja and she became pregnant and she was 17 years old. On examination, the Doctor found all the secondary sexual characters were developed properly and on taking scanning she found that the said girl was 18-20 weeks pregnant and hymen was ruptured. She issued medical certificate at Ex.P.20 opining that the said victim girl was used to an act like that of sexual intercourse. In Ex.P.20, in column No.12, it is stated that the victim girl gave history stating that she had intercourse with one Manja since 2.3.2014. On the basis of this history allegedly given by victim girl, it was argued on behalf of the Learned Spl.Public Prosecutor that presumption under section 29 of Protection of Children from Sexual Offences Act, 2012 will come into play and therefore accused is liable for conviction. No doubt, under section 29 of Protection of Children from Sexual Offences Act, 2012 the presumption is to be raised when a person is prosecuted for committing offences under Sections 3, 5, 7 and 9 of the Act unless the contrary is proved. However, it is argued by the learned counsel for the respondent / accused that the said presumption is not conclusive one and it is rebuttable presumption and therefore corroboration is required. It is further urged that the victim girl who was examined before the Court as PW.2 has clearly stated that she did not know the accused and accused had not committed rape on her and she had no sexual intercourse with the accused. Further, in Ex.P.20, the signature of the victim girl has not been taken as consent for the medical examination and so also for having given history before the Medical officer. Further, in Ex.P.20, the signature of the victim girl has not been taken as consent for the medical examination and so also for having given history before the Medical officer. PW.16-Dr.Lalitha in her cross-examination has stated that on the basis of the history given by the victim girl, she mentioned the same in column No.12. She further clearly admitted that she did not enquire the name of father and address of said Manja. In Ex.P.20, PW.16 has clearly stated that no injuries anywhere over the body were found. Therefore, the conviction could not have been based only on the basis of the alleged history and hence the Trial Court has rightly acquitted the accused. 17. PW.17-Dr.Nagendra Murthy is the Medical officer who examined the accused and issued certificate as per Ex.P.21. No doubt, the evidence of PW.17 and Ex.P.21 indicates that the accused is capable of doing an act like that of sexual intercourse. But it is pertinent to note here that the clothes of accused and victim girl were not collected in order to examine with regard to the presence of seminal stain and spermatozoa. Hence, evidence of PW.17 and Ex.P.21 do not come to the aid of the prosecution to connect the accused with the guilt charged against him. 18. Further, PW.7 / Murthy and PW.8 / Dundaiah have seen accused and victim girl together in Utthuvalli Village. These two witnesses have been examined to show that after inducing and kidnapping the victim girl from her village situated at Bommanahalli village, the accused had brought her to his village Utthuvalli and he had kept her as a captive in his house. But PWs.7 and 8 clearly state in their evidence that they had not seen accused bringing and accompanying any girl and keeping any girl as a captive in his house. But PWs.7 and 8 clearly state in their evidence that they had not seen accused bringing and accompanying any girl and keeping any girl as a captive in his house. Though PWs.7 and 8 were treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, they did not admit that on 02.03.2014, at about 4.30 pm, they observed accused taking a girl from Utthuvalli bus stand towards his house and subsequently they came to know that the accused had loved the said girl and he had brought the said girl from Bommanahalli and thereafter accused and said victim girl stayed in the house of accused for some 3 or 4 months and they also came to know that Terekanambi Police took accused and victim girl to their custody. Even they denied to have stated before police as per Ex.P.11 and 12, which are their statements recorded by Investigating officer under Section 161 CrPC. 19. PW.3- Guruswamy and PW.6-Mahadevappa are panch witnesses to spot mahazar marked at Ex.P.2. PWs.3 and 6 are panch witnesses to the spot mahazar where the victim girl was residing at Bommanahalli village from where the accused allegedly kidnapped the victim girl. PW.3- Guruswamy states in his evidence that he has signed the mahazar and he identifies the mahazar at Ex.P.2, but he states that he is not aware of the contents of the Ex.P.2 mahazar. PW.6 states in his evidence that he also signed mahazar and he does not know as to what is written in the mahazar. Though PW.3 and 6 were treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, they did not admit that the police had come to the house of PW.1 on 06.07.2014 and observed the spot and conducted the mahazar and they signed the mahazar. As per prosecution, these two witnesses also came to know through PW.1 with regard to the kidnapping of the victim girl by accused and subsequently victim girl became pregnant by accused. But they denied during the course of their cross-examination by Learned Spl.Public Prosecutor that they came to know through PW.1 that accused became familiar to victim girl when she had been to Chikkellur fair and thereafter the accused kidnapped the victim girl when PW.1 and 4 had been to Aradhane of Padaguru Mutt and subsequently the victim girl became pregnant. But they denied during the course of their cross-examination by Learned Spl.Public Prosecutor that they came to know through PW.1 that accused became familiar to victim girl when she had been to Chikkellur fair and thereafter the accused kidnapped the victim girl when PW.1 and 4 had been to Aradhane of Padaguru Mutt and subsequently the victim girl became pregnant. They clearly denied to have stated before police as per Ex.P.9 and 10 which are their statements recorded by Investigating officer under Section 161 CrPC. Nothing worthwhile was elicited through their mouth during the course of cross-examination by Learned Spl.Public Prosecutor in order to prove the ingredients of offence. Hence, evidence of PWs.3 and 6 do not come to the aid of the prosecution to prove the ingredients of offence. 20. PW.9-Raju, PW.10-Mahadeshwara Shankri and PW.11- Rechappa are said to be the panch witnesses to Ex.P.13 mahazar. It is the case of prosecution that accused after kidnapping the victim girl had taken to Bangalore and thereafter he brought her to Srirangapatna and then he took her to his village Utthuvalli and kept her in his house and subsequently when PW.5 allegedly observed the victim girl while she was proceeding to Chamarajanagar fair, the accused allegedly shifted this victim girl to Yelakkuru village i.e., to his relatives house. Ex.P.13 mahazar was conducted in the house of PWs.10 and 12 in Yelakkuru village. But PWs.9, 10 and 11 state in their evidence that they simply signed Ex.P.13 mahazar and they are not aware of the contents of the mahazar and they have not given any statement before police. Though PWs.9, 10 and 11 were treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, they did not admit that on 18.07.2014, the police had come to the house of Shankraiah son of Mahadevaiah and accused pointed out the spot and police observed the same and conducted mahazar and they signed mahazar. They also clearly denied that the kidnapping of the victim girl by the accused was published in daily newspaper and thereafter PW.10 told accused to go out from his house and accused and victim girl had stayed in the house of PW.10 for some days. They clearly denied to have stated before police as per Ex.P.14 and 15 which are their statements recorded by Investigating officer under Section 161 CrPC. They clearly denied to have stated before police as per Ex.P.14 and 15 which are their statements recorded by Investigating officer under Section 161 CrPC. Hence, evidence of PWs.9 to 11 does not come to the aid of the prosecution to prove the ingredients of offence. 21. PW.12-Shankraiah, relative of the accused admits that the sister of accused by name Sudharani has been given in marriage to his son i.e., PW.10-Mahadeshwara Shankri. But he denied that the accused had brought a girl and kept her in their house for 15 days earlier to 18.07.2014 and thereafter police came and apprehended them. Though PW.12 was treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, he did not admit that 15 days earlier to 18.07.2014 accused had brought a girl to his house alleging that he was loving her and he would marry said girl after taking consent of his parents and parents of the victim girl and subsequently it was published in the newspaper that the accused had kidnapped the said girl and then he told accused to go out from his house or else he would intimate the police over the phone and in the meantime, the victim girl became pregnant. He clearly denied to have stated before police as per Ex.P.16 which is statement recorded by Investigating officer under Section 161 CrPC. Hence, evidence of PW.12 does not come to the aid of the prosecution to prove the ingredients of the offence. 22. PW.13-Govindaiah, PW.15-Ajithkumar are said to be the panch witnesses to Ex.P.17 mahazar which was conducted in the house of accused. PWs.13 and 15 state in their evidence that Ex.P.17 mahazar contains their signature, but they state that they are not aware of the contents of Ex.P.17. Though PWs.13 and 15 were treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, they did not admit that on 18.07.2014, in between 11.30am and 12.10pm, the police came to the house of the accused and accused himself pointed out the spot where he had kept the victim girl and police observed the same and conducted mahazar and they signed mahazar. Hence, evidence of PWs.13 and 15 also do not come to the aid of the prosecution to prove the ingredients of the offence. 23. Hence, evidence of PWs.13 and 15 also do not come to the aid of the prosecution to prove the ingredients of the offence. 23. PW.2 being the victim girl has clearly stated in her evidence that she did not know the accused and she had not met the accused and accused had not kidnapped her and he had not committed rape on her. Though PW.2 was treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, nothing worth was elicited to prove the ingredients of offence. Only PW.1 the father of the victim girl, PW.4 the mother of the victim girl and another relative of victim girl PW.5-Dharmavathi have supported the case of prosecution. But PWs.1 and 4 are not the eyewitnesses to the kidnap. Further, the alleged kidnap took place on 02.03.2014, whereas PW.1 lodged the complaint on 06.07.2014. There is delay of 4 months in lodging the complaint. It is the explanation of PW.1 that his wife was not keeping well and therefore he could not lodge complaint earlier. But wife of complainant i.e. PW.4 has nowhere stated from what disease she was suffering from during that period. 24. Though the learned HCGP had vehemently argued that it has come in the evidence of PW.2 that she has got a child aged about 1 year and she has not answered the question posed by the prosecution as to who was cause of the said child and therefore it is to be presumed that the said child is born due to the accused according to the presumption under section 29 of Protection of Children from Sexual Offences Act, 2012. However, as stated supra, Ex.P.20 the medical certificate also does not contain the signature of the victim girl. Therefore, there is no cogent and convincing evidence to connect the accused with the guilt charged against him. Hence, the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. Hence, it is contended that the judgment of acquittal rendered by the Trial Court is just and proper and does not require any interference in this appeal. On all these grounds, the learned counsel for the respondent / accused seeks for dismissal of the appeal as being devoid of any merits. 25. Hence, it is contended that the judgment of acquittal rendered by the Trial Court is just and proper and does not require any interference in this appeal. On all these grounds, the learned counsel for the respondent / accused seeks for dismissal of the appeal as being devoid of any merits. 25. In this context of contentions made by the learned HCGP for the State and so also the learned counsel for the appellant based upon the evidence of PW-1 / Nagappa and PW-4 / Nagamallamma who are the parents of the victim PW-2, as per the complaint averments, on 02.03.2014, the complainant and his wife had gone to attend Aradhana of Padaguru Mutt by leaving their daughter / PW-2 alone in the house. But when they came back in the evening from the said Aradhana function of Padaguru Mutt, they found their daughter missing. Even after a thorough search made in various places, they could not find their daughter / the victim girl. However thereafter on 20.05.2014, the wife of the younger brother of the complainant by name Dharmavathi / PW-5 who was proceeding in an autorickshaw at Utthuvalli village had observed the daughter of complainant in the said village and informed the same to her parents. It is thereafter that the complainant had been to Utthuvalli village and he searched for his daughter and some persons of Utthuvalli village intimated the complainant that Manja, son of Mahadevaiah had brought one girl stating that he has married her. But he was not there in the house and they were not aware as to where he has gone. Thereafter the complainant had lodged a complaint on 06.07.2014 at about 11.30 am and the PSI, Terekanambi Police Station i.e., N.Kumaraaradhya / PW.19 received said complaint and registered the case and sent FIR to the Court. On 18.07.2014, the accused and victim girl were traced in Yelakkuru village by PW.19, who recorded the confession statement of accused and got examined both accused and victim girl in Government Hospital, Gundlupet. PW.19 investigated the case and submitted charge sheet against accused for the offences punishable under Section 366A, 344, 376 IPC and under Section 5(j)(ii) and 5(l) of Protection of Children from Sexual Offences Act, 2012. 26. PW.19 investigated the case and submitted charge sheet against accused for the offences punishable under Section 366A, 344, 376 IPC and under Section 5(j)(ii) and 5(l) of Protection of Children from Sexual Offences Act, 2012. 26. The case of the prosecution was that accused induced and kidnapped the victim / PW-2 on 02.03.2014 from the custody of her parents and took her to Bangalore alluring that he would get her a job in Bangalore and thereafter he took her to his native Utthuvalli Village of Chamarajanagar Taluk and kept her as a captive in his house from 02.03.2014 for about four months and during that period, he had committed penetrative sexual assault on her on several occasions and made her pregnant. These are the allegations made in the complaint at Exhibit P1. 27. However, it is pertinent to note that as per Exhibit P-24, the date of birth of the victim is stated to be 02.05.1998 and she was 16 years old at the time of the incident. The victim girl at the time of her cross-examination has clearly stated that she was 18 years old in the year 2014. Further, the opinion of Dr. Lalitha / PW-16 who had examined the victim girl as on 18.07.2014 reveals that the victim had stated that she was 17 years old and on examination she found that she was 20 weeks pregnant and all the secondary sexual characters were well-developed and also found that the girl was used to an act such that of sexual intercourse. Hence, the allegation that the victim girl was 16 to 17 years at the time of the incident itself cannot be believed as a matter of fact. The further circumstance that is to be noticed is that the victim girl / PW-2 has totally denied the averments in the complaint lodged by her father / PW-1 and has turned hostile to the case of the prosecution. The circumstance that she has turned hostile to the case of the prosecution reveals that the victim girl has accompanied the accused and had committed the above said acts on her own will and volition. The further circumstance to be noticed is that she has totally refused to give her sample blood for DNA analysis in order to prove the paternity of the child born to her. The further circumstance to be noticed is that she has totally refused to give her sample blood for DNA analysis in order to prove the paternity of the child born to her. Further, the clothes of accused and victim girl were not collected in order to examine with regard to the presence of seminal stain and spermatozoa. Hence, evidence of PW.17 / Dr. Nagendramurthy and Ex.P.21 / Medical report of accused does not come to the aid of the prosecution to connect the accused with the guilt charged against him. Hence, there is no medical evidence to prove that the accused was in fact the father of the child born to her. Hence, the Trial Court has rightly acquitted the accused from the offences alleged. 28. The other material witnesses namely PWs.7 / Murthy and PW-8 / Dundaiah have clearly stated in their evidence that they had not seen accused bringing and accompanying any girl and keeping any girl as a captive in his house. The remaining witnesses are formal witnesses. PW.3 / Guruswamy and PW.6 / Mahadevappa are panch witnesses to spot mahazar marked at Ex.P.2. PWs.3 and 6 are panch witnesses to the spot mahazar where the victim girl was residing at Bommanahalli village from where the accused allegedly kidnapped the victim girl. PW.3 / Guruswamy states in his evidence that he has signed the mahazar and he identifies the mahazar at Ex.P.2, but he states that he is not aware of the contents of the Ex.P.2 mahazar. PW.6 / Mahadevappa states in his evidence that he also signed mahazar but he does not know as to what is written in the mahazar. Though PW.3 and 6 were treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, they did not admit that the police had come to the house of PW.1 on 06.07.2014 and observed the spot and conducted the mahazar and that they signed the mahazar. As per prosecution, these two witnesses also came to know through PW.1 / Nagappa with regard to the kidnapping of the victim girl by accused and subsequently victim girl became pregnant by accused. But they denied the same during the course of their cross-examination by Learned Spl.Public Prosecutor. They have also clearly denied to have stated before police as per Ex.P.9 and 10 which are their statements recorded by Investigating officer under Section 161 CrPC. But they denied the same during the course of their cross-examination by Learned Spl.Public Prosecutor. They have also clearly denied to have stated before police as per Ex.P.9 and 10 which are their statements recorded by Investigating officer under Section 161 CrPC. Nothing worthwhile was elicited through their mouth during the course of cross-examination by Learned Spl.Public Prosecutor in order to prove the ingredients of offence. Hence, the evidence of PWs.3 and 6 also does not come to the aid of the prosecution to prove the ingredients of offence. 29. PW.9 / Raju, PW.10 / Mahadeshwara Shankri and PW.11 / Rechappa are said to be the panch witnesses to Ex.P.13 mahazar. Ex.P.13 mahazar was conducted in the house of PWs.10 and 12 in Yelakkuru village. But PWs.9, 10 and 11 state in their evidence that they simply signed Ex.P.13 mahazar and they were not aware of the contents of the mahazar and they have not given any statement before police. Though PWs.9, 10 and 11 were treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, they did not admit that on 18.07.2014, the police had come to the house of Shankraiah son of Mahadevaiah and accused pointed out the spot and police observed the same and conducted mahazar and they signed mahazar. They also clearly denied that the kidnapping of the victim girl by the accused was published in daily newspaper. They clearly denied to have stated before police as per Ex.P.14 and 15 which are their statements recorded by Investigating officer under Section 161 CrPC. Hence, evidence of PWs.9 to 11 also do not come to the aid of the prosecution to prove the ingredients of offence. 30. Further, PW.12 / Shankraiah, is a relative of the accused where accused had kept the victim girl for about 15 days earlier to 18.07.2014, where Ex.P.13 mahazar was conducted later on. But PW.12 admits that the sister of accused by name Sudharani has been given in marriage to his son i.e., PW.10-Mahadeshwara Shankri. But he denied that the accused had brought a girl and kept her in their house for 15 days earlier to 18.07.2014 and thereafter police came and apprehended them. But PW.12 admits that the sister of accused by name Sudharani has been given in marriage to his son i.e., PW.10-Mahadeshwara Shankri. But he denied that the accused had brought a girl and kept her in their house for 15 days earlier to 18.07.2014 and thereafter police came and apprehended them. Though PW.12 was treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, he did not admit that 15 days earlier to 18.07.2014 accused had brought a girl to his house alleging he would marry said girl and subsequently it was published in the newspaper. He clearly denied to have stated before police as per Ex.P.16 which is statement recorded by Investigating officer under Section 161 CrPC. Hence, evidence of PW.12 also does not come to the aid of the prosecution to prove the ingredients of the offence. 31. PW.13 / Govindaiah, PW.15 / Ajithkumar are said to be the panch witnesses to Ex.P.17 mahazar which was conducted in the house of accused. PWs.13 and 15 state in their evidence that Ex.P.17 mahazar contains their signature, but they state that they are not aware of the contents of Ex.P.17. Though PWs.13 and 15 were treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor, they did not admit that on 18.07.2014, in between 11.30am and 12.10pm, the police came to the house of the accused and accused himself pointed out the spot where he had kept the victim girl and police observed the same and conducted mahazar and they signed mahazar. Hence, evidence of PWs.13 and 15 also does not come to the aid of the prosecution to prove the ingredients of offence. 32. PW.2 / victim girl herself has clearly stated in her evidence that she did not know accused and she had not met accused and had never talked with accused over the phone. She also stated that accused had not kidnapped her and had not at all kept her a captive. Though PW.2 was treated as hostile by prosecution and cross examined by Learned Spl.Public Prosecutor nothing worth was elicited through her mouth to prove the ingredients of offence. Only PW.1 the father of the victim girl, PW.4 the mother of the victim girl and another relative of victim girl namely PW.5 / Dharmavathi have supported the case of prosecution. But PWs.1 and 4 are not the eyewitnesses to the kidnap. 33. Only PW.1 the father of the victim girl, PW.4 the mother of the victim girl and another relative of victim girl namely PW.5 / Dharmavathi have supported the case of prosecution. But PWs.1 and 4 are not the eyewitnesses to the kidnap. 33. But it relevant to state that the alleged incident of kidnap took place on 02.03.2014, whereas PW.1 lodged the complaint on 06.07.2014. There is delay of 4 months in lodging the complaint. It is the explanation of PW.1 that his wife was not keeping well and therefore he could not lodge complaint earlier. But wife of complainant i.e. PW.4 has nowhere stated from which disease she was suffering from during that period. 34. The Learned Spl.Public Prosecutor vehemently urged that it has come in the evidence of PW.2 that she has got a child aged about 1 year and she has not answered the question posed by the prosecution as to who was cause of the said child and therefore it is to be presumed that the said child is born to the accused. He also urged that the presumption under section 29 of Protection of Children from Sexual Offences Act, 2012 is to be raised. No doubt, in column No.12 of Ex.P.20 the history allegedly given by the victim girl is shown by PW.16 Dr.Lalitha. But as stated supra, Ex.P.20 the medical certificate does not contain the signature of the victim girl. Further, the victim girl has refused to give her blood sample in order to prove that accused was the father of her child. Therefore, we find that there is no cogent, corroborative, positive, consistent and convincing evidence to connect the accused with the guilt of the accused. Hence, we are of the opinion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. The Trial court had extended benefit of doubt and on that concept, rendered an acquittal judgment by assigning sound reasons and also justifiable reasons. Therefore, in this appeal, it does not arise to call for interference as contended by the State / appellant. Consequently, the appeal deserves to be rejected as being devoid of merits. In terms of the aforesaid reasons and findings, we proceed to pass the following: ORDER The appeal preferred by the appellant / State under Section 378(1) and (3) of the Cr.P.C. is hereby rejected. Consequently, the appeal deserves to be rejected as being devoid of merits. In terms of the aforesaid reasons and findings, we proceed to pass the following: ORDER The appeal preferred by the appellant / State under Section 378(1) and (3) of the Cr.P.C. is hereby rejected. Consequently, the judgment of acquittal rendered by the Trial Court in Special Case No.65/2014 dated 02.06.2016 acquitting the accused for offences punishable under Sections 366-A, 344, 376 of the IPC and under Sections 5(j)(ii) and 5(l) of the POCSO Act, 2012 is hereby confirmed.