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2023 DIGILAW 1009 (KAR)

Mallikarjun v. State of Karnataka

2023-08-23

MOHAMMAD NAWAZ, RAJESH RAI K.

body2023
JUDGMENT RAJESH RAI K., J. This appeal by the convicted accused is directed against the judgment and order of sentence dtd. 11/6/2018 passed in Special Case (POCSO) No.2/2015 by the II Addl. Sessions Judge, at Kalaburagi, wherein the learned Sessions Judge convicted the accused for the offence punishable under Ss. 366, 376(2)(i) of IPC and Sec. 4 of the POCSO Act, 2012 and Sec. 3(i)(xv) and 3(2)(v) of SC/ST (PA) Act. 2. Thereby accused is sentenced to undergo simple imprisonment for a period of 7 years and to pay a fine of Rs.1, 00, 000.00 for the offence punishable under Sec. 366 of IPC and in default to pay fine, to undergo further simple imprisonment for a period of one year. Further sentenced to undergo simple imprisonment for a period of 10 years and to pay a fine of Rs.1, 00, 000.00 for the offence punishable under Sec. 376(2)(i) of IPC and in default to pay fine, to undergo further simple imprisonment for a period of one year. The accused is also sentenced to undergo simple imprisonment for a period of 3 years and to pay a fine of Rs.25, 000.00 for the offence punishable under Sec. 3(1) (xv) of SC/ST (PA) Act and Sec.3(1)(z) of SC/ST (PA) Amendment Act, 2015 and in default to pay fine, he is directed undergo further simple imprisonment for a period of three months. The accused is also directed to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1, 00, 000.00 for the offence punishable under Sec. 4 of the POCSO Act 2012 and in default to pay fine, to undergo simple imprisonment for a period of one year. The accused is further sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1, 00, 000.00 for the offence punishable under Sec. 4 of POCSO Act 2012 and in default to pay fine, he is directed to undergo simple imprisonment for a period of one year. Further directed that all the sentences of imprisonment shall run concurrently. 3. The factual matrix of the prosecution case are that, the victim girl in this case is the daughter of the complainant Shantabai (PW1) and Choudappa (PW4). The appellant/accused used to live in the neighbouring vicinity of PW1 and PW4 and was acquainted with the victim. Further directed that all the sentences of imprisonment shall run concurrently. 3. The factual matrix of the prosecution case are that, the victim girl in this case is the daughter of the complainant Shantabai (PW1) and Choudappa (PW4). The appellant/accused used to live in the neighbouring vicinity of PW1 and PW4 and was acquainted with the victim. The victim belongs to Scheduled Caste and the accused belongs to Talawar caste which is not a Scheduled Caste. The victim used to go to M.M.M. High School, Afzalpur and used to ply every day from her village to Afzalpur. Such being the state of affair, on 2/10/2014 at about 12 noon when the victim was waiting for the bus to return to her village, the appellant/accused, kidnapped her by inducing that he would marry her and took her to Matolli village. It is the further case of the prosecution that on 3/10/2014, the appellant/accused committed sexual intercourse with the victim near the canal and on later dates took her to different places. On 11/10/2014 while the appellant/accused along with victim girl were waiting at Vaddanhalli Cross to return to their village, the Almel Police apprehended them. 4. Initially on 9/10/2014, the mother of the victim girl PW1 Shantabai lodged the complaint before Almel Police Station, as per Ex.P1 and pursuant to the said complaint, a criminal case came to be registered in Crime No.90/2014 as per Ex.P20 at Almel Police Station, for the offence punishable under Sec. 363 of IPC R/w Sec. 3(1) (xi) of the SC/ST (PA) Act against the accused. During the course of investigation, it was revealed that the victim girl was kidnapped from Afzalpur bus stand which is situated in Kalaburagi District, hence on the jurisdictional point, the matter was transferred to Afzalpur Police Station from Almel Police Station for investigation. In pursuance to such transfer, the Afzalpur Police re-registered the FIR in Crime No.260/2014 dtd. 28/10/2014 against the accused for the offence punishable under Sec. 363 of IPC R/w Sec. 3(1)(xi) of the SC/ST (PA) Act as per Ex.P16. After the arrest of accused, during the course of investigation, the Investigation Officer sought for inclusion of Sec. 366, 376(2)(i) of IPC along with Sec. 3(1) (xv), Sec. 3(2)(v) of Atrocities Act along with Sec. 4 of POCSO Act. After the arrest of accused, during the course of investigation, the Investigation Officer sought for inclusion of Sec. 366, 376(2)(i) of IPC along with Sec. 3(1) (xv), Sec. 3(2)(v) of Atrocities Act along with Sec. 4 of POCSO Act. Accordingly, after completing the investigation, PW23- Investigation Officer filed chargesheet against the accused for the aforesaid offences before the Special Court. 5. The learned Special Judge, framed charges against the accused for the aforesaid offences and read over to him. However, the accused denied the same and claimed to be tried. 6. In order to bring home the guilt of the accused for the charges leveled against the accused before the Trial Court, the prosecution in all examined 24 witnesses as PW1 to PW24 and got marked as many as 22 documents as per Ex.P1 to Ex.P22. After completion of the evidence of prosecution, the incriminating portions of the evidence of the material witnesses were read over to the accused as contemplated under the provision of Sec. 313 of Cr.P.C, the accused denied the same and, he examined himself as DW1 and got marked 6 documents on his behalf as Ex.D1 to Ex.D6. The defence of the accused is one of total denial and that of false implication. 7. After assessment of the oral and documentary evidence placed before the Trial Court, so also after hearing the learned counsel for both sides, the learned Special Judge, convicted the accused for the charges leveled against him as stated supra vide judgment dtd. 11/6/2018. The said impugned judgment is challenged in this appeal. 8. We have heard the learned counsel Sri. R.S.Lagali for the appellant/accused, Sri. Siddaling P.Patil, learned Addl. SPP for respondent No.1-State and Sri. B.C.Jaka, advocate for respondent No.2. 9. The learned counsel for the appellant vehemently contended that, the judgment under this appeal suffers from perversity and illegality, since the learned Sessions Judge passed the impugned judgment contrary to the law and facts of the case only based on assumption and presumption, which is not sustainable under law. He would further contend that the learned Sessions Judge failed to appreciate the evidence on record in a proper perspective based on the settled principles of law by this Hon'ble Court and also the Hon'ble Apex Court. He would further contend that there is an inordinate delay in lodging the complaint by the parents of the victim. He would further contend that the learned Sessions Judge failed to appreciate the evidence on record in a proper perspective based on the settled principles of law by this Hon'ble Court and also the Hon'ble Apex Court. He would further contend that there is an inordinate delay in lodging the complaint by the parents of the victim. Though the incident said to have taken place on 3/10/2014, but the complaint was lodged on 9/10/2014 after lapse of 7 days. There is no explanation by the prosecution for the said inordinate delay. Hence, there is a clear doubt in the prosecution case from its inception. He would further contend that the learned Sessions Judge has much relied on the evidence of PW3 the victim girl, but her evidence does not inspire confidence in any manner since there are contradictions and omissions in her evidence and the manner in which she narrated the incident clearly creates a doubt in her version. Her evidence is not of sterling quality, as such the same cannot be relied to prove the charges leveled against the accused. He would further contend that the prosecution has utterly failed to prove that the victim was a minor at the time of incident. Though the prosecution relied on the evidence of PW11 to prove the age of the victim that she was minor at the time of incident, on perusal of the evidence of PW11 and the documents Ex.P7 and Ex.P8, the same cannot be considered for any purpose, for the reason that PW11 is not the author of those documents and Ex.P8 the transfer certificate does not pertain to the school of PW11. Further, the prosecution failed to examine the author of Ex.P7 and Ex.P8. Moreover, Ex.P8 is not the original document. The learned counsel would further contend that the evidence of PW9-the Dentist and Ex.P5 the certificate issued by him depicts that the age mentioned in the said certificate need to be confirmed by the Radiologist, but the prosecution failed to obtain such certificate/confirmation from the Radiologist. In such circumstances, the prosecution failed to prove that the victim was a minor at the time of incident. In such circumstances, the prosecution failed to prove that the victim was a minor at the time of incident. He would contend that as per the prosecution case, the victim was aged about 16 years at the time of incident, but the prosecution failed to prove the exact age of the victim girl and as per the settled position of law by the Hon'ble Apex Court, two years margin can be given on both sides and in such an eventuality it has to be treated that the victim girl was major at the time of incident. Hence, according to him the prosecution failed to prove the age of the victim girl that she was minor at the time of incident. 10. The learned counsel would further contend that the prosecution has also failed to prove the charge under Sec. 363 and 366 of IPC for the reason that, perusal of evidence of PW3 and also her parents i.e., PW1 and PW4, they categorically stated that the accused kidnapped her from the place i.e. Afzalpur bus stand which is a crowded place. Subsequently, the victim and accused stayed together for so many days. According to PW1, she came to know that the accused had kidnapped her daughter through PW2-Kasturibai on 3/10/2014 itself, but she failed to lodge the complaint till 9/10/2014, which creates a doubt in the version of PW1, PW3 and PW4. 11. The learned counsel further contended that, the Trial Court erred in wrongly invoking the provisions of Atrocities Act i.e. the provision under Sec. 3(2)(v) of the said Act. According to him, on perusal of the evidence available on record, no offence is made out under Sec. 3(2)(v) of the Atrocities Act. In order to attract the said provision, prosecution has to prove the offence must have been committed against the person for the reason that such person is a member of Scheduled Caste and Scheduled Tribe. In the instant case no evidence has been led to establish the said requirement. He has contended that, it is not the case of prosecution that the accused has committed rape on the victim for the reason that she was a member of Schedule Caste. In the absence of such evidence, Sec. 3(2)(v) has no application. In the instant case no evidence has been led to establish the said requirement. He has contended that, it is not the case of prosecution that the accused has committed rape on the victim for the reason that she was a member of Schedule Caste. In the absence of such evidence, Sec. 3(2)(v) has no application. Even otherwise on careful perusal of the evidence, the provision under Sec. 3(i)(xv) is also not applicable since the accused did not use forces or caused a member of scheduled caste or scheduled tribes to leave his house, village or other places of residence. Hence, the conviction for the said offence is also bad in law. 12. The learned counsel also contended that the learned Special Judge, convicted the accused based on assumptions and presumptions and failed to consider the aspect that the accused was married person and there was no question of marrying the victim. Admittedly, the accused was residing in the neighbouring vicinity of the victim. Both are known to each other. On perusal of the evidence, it is clearly proved that the victim voluntarily went along with the accused and she was a consenting party. If such an incident as narrated by the victim has really taken place, she had many opportunities to escape or raise alarm, but she kept quite, which clearly goes to show that she was a consenting party and she was major at the time of incident. Further PW5-the father of the accused took the victim girl to the village and a panchayat was convened. the victim girl was advised by PW6 and PW7 to go to her parental house as accused person was a married man. Inspite of the same, the victim refused to go to her parental house and voluntarily accompanied the accused which clearly demonstrates the fact that in spite of accused being a married person, the victim was in love with him and at no point of time, he forcibly kidnapped her from the lawful guardian or committed forcible sexual intercourse on her as claimed by herself or her parents. Hence, according to the learned counsel, the Trial Judge without considering all the above aspects, wrongly convicted the accused for the charges under Sec. 376(2)(i) of IPC and Sec. 4 of POCSO Act. Hence, the impugned judgment is liable to set aside. Accordingly, he prays to allow the appeal. 13. Hence, according to the learned counsel, the Trial Judge without considering all the above aspects, wrongly convicted the accused for the charges under Sec. 376(2)(i) of IPC and Sec. 4 of POCSO Act. Hence, the impugned judgment is liable to set aside. Accordingly, he prays to allow the appeal. 13. Refuting the above submissions made by the learned counsel for the appellant, the learned Addl. SPP vehemently contended that the judgment under appeal does not suffer from any perversity or illegality and the same is based on the evidence available on record. 14. The learned Addl. SPP contended that, the Special Judge convicted the accused after carefully appreciating the oral and documentary evidence adduced by the prosecution. As such the same is sustainable under law. The learned Addl. SPP has further contended that, the evidence of PW3 the victim girl clearly depicts that accused had forcibly kidnapped her from lawful guardianship and thereafter he forcibly took her to different places and committed forcible sexual act on her by knowing fully well that she belongs to Scheduled Caste and she was a minor at that time. As such the offence under Sec. 363, 376(2)(i) of IPC and Sec. 4 of POCSO Act, 2012 and the provisions of SC/ST (PA) Act are proved by the prosecution by adducing cogent evidence. 15. He would further contend that there is no reason to disbelieve the evidence of victim PW3 and also the evidence of her parents i.e. PW1 and PW4. Though there is a delay of 7 days in lodging the complaint, PW1 being a rustic villager, lodged the complaint after searching for her daughter for 6 days. Accordingly, she deposed before the Court. He would further contend that, the prosecution proved the age of the victim girl by examining PW11-the Head Master of the School of the victim so also the documents Ex.P7 i.e. the School Register and Ex.P8 the Transfer Certificate. Moreover, the prosecution also examined PW9-Dr.Drakshayini who conducted the required medical tests to determine the age of the victim. The certificate produced by the said doctor as per Ex.P5, depicts that the victim was aged about 15 to 16 years. The said ossification test conducted by PW9 clearly proved the age of the victim that she was 15 to 16 years at the time of incident. Hence, the prosecution clearly proved that she was a minor at the time of incident. The said ossification test conducted by PW9 clearly proved the age of the victim that she was 15 to 16 years at the time of incident. Hence, the prosecution clearly proved that she was a minor at the time of incident. According to the learned Addl. SPP, the contention of learned counsel for the appellant that the victim girl was a consenting party cannot accepted for the reason that victim being a minor and even if she has consented for the act, the same cannot be treated as legal consent. Accordingly, the learned Addl. SPP prays to dismiss the appeal and to confirm the judgment passed by the Trial Court. 16. We have bestowed our anxious consideration to the submissions made by the learned counsel for the appellant so also the State and also perused the evidence and materials available on record including the impugned judgment passed by the Trial Court. 17. Having heard the learned counsel on both sides and having perused the documents, the points that would arise for our consideration are that: 1. Whether the judgment under this appeal suffers from any perversity or illegality? 2. Whether the Trial Court/Special Judge is justified in convicting the appellant for the offence punishable under Sec. 366, 376(2)(i) of IPC and Sec. 4 of POCSO Act, 2012 and Sec. 3(i)(xv) and 3(2)(v) of SC/ST (PA) Act? 18. This Court being the appellate Court, re- appreciation of the entire evidence on record is very much required. PW1-Shantabai, the mother of the victim girl who lodged the complaint before the respondent-police as per Ex.P1, deposed that as on the date of incident her daughter victim girl was studying in 10th Std. at Afzalpur School and 9 months prior, her daughter had gone to school at about 9.00 a.m. and thereafter she did not return. Though they made an attempt to trace her, she was not found and after 6 to 7 days, she came to know through PW2 that her daughter went along with the accused from the bus stop, as such she lodged the complaint against the accused before Almel Police Station as per Ex.P1. She further stated that after 8 days her daughter came to her house and informed that the accused forcibly took her and committed rape on her. 19. She further stated that after 8 days her daughter came to her house and informed that the accused forcibly took her and committed rape on her. 19. PW2-Kasuribai Subash, is the sister-in-law of PW1, deposed that 10 months prior, at about 7.00 p.m. on the date of Gandhi Jayanti, she had seen the accused and victim at Afzalpur bus stop and she informed the same to the mother of the victim i.e. PW1. 20. PW3 is the victim, deposed that on October 2nd, on the date of Gandhi Jayanti after completing the school programme, while she was returning to her house, at Afzalpur bus stop, the accused called her through phone and came to Afzalpur bus stop at 11.00 a.m. and thereafter induced her that he would marry her and forcibly took her in a private vehicle and they both stayed in a school varanda in a village and thereafter on the next day he took her near a canal and committed rape on her and they both stayed together near the said canal on that day. On the next day, her father came to the said spot and took her to her house and thereafter, she informed the acts committed by the accused to her parents, police and before the Magistrate. 21. PW4-Choudappa, who is the father of the victim, reiterated the version of PW1 and deposed that the accused forcibly kidnapped his daughter and committed forcible sexual intercourse on her and the same was informed to him by his daughter. 22. PW5-Shivappa, who is the father of the accused, a circumstantial witness, turned hostile to the prosecution case. 23. PW6-Shankrappa Mahadevappa, is a circumstantial witness, an elderly person who had admonished the victim, when the father of the accused PW5 brought her after the incident. However, this witness turned hostile to the prosecution case. 24. PW7-Sharanappa is also a circumstantial witness, an elderly person who had admonished the victim when the father of the accused PW5 brought her after the incident. However, this witness also turned hostile to the prosecution case. 25. PW8-Neelappa, a witness for the spot mahazar i.e. the place of kidnap as per Ex.P4. 26. PW9-Dr.Drakshayini, who examined the victim girl and gave her opinion in respect of her age as per Ex.P5. 27. PW10-Mallikarjun, the Tahasildar who issued the caste certificate of the victim, her family and also the appellant as per Ex.P6. 28. 25. PW8-Neelappa, a witness for the spot mahazar i.e. the place of kidnap as per Ex.P4. 26. PW9-Dr.Drakshayini, who examined the victim girl and gave her opinion in respect of her age as per Ex.P5. 27. PW10-Mallikarjun, the Tahasildar who issued the caste certificate of the victim, her family and also the appellant as per Ex.P6. 28. PW11-S.M.Karikalla, Incharge Head Master, who had issued school certificate regarding the age and caste of the victim as per Ex.P7 and Ex.P8. 29. PW12-Bheemashya is a panch witness to Ex.P9- spot mahazar, where the accused committed rape on the victim. However, this witness turned hostile to the prosecution case. 30. PW13-Dr. Vijay, who examined the victim girl and issued Primary medical certificate as per Ex.P10 and also issued the final opinion as per Ex.P12. FSL report- Ex.P11 is marked through the said witness. 31. PW14-Annappa, Assistant Engineer, who had drawn the hand sketch map of the place of incident as per Ex.P13. 32. PW15-Nanagouda is a co-pancha to the spot mahazar marked as per Ex.P9. However, this witness turned hostile to the prosecution case. 33. PW16-Dr. Ashok, examined the accused and conduct potency test and issued certificate as per Ex.P14. 34. PW17-Bharati, the WPC, who accompanied the victim girl from protection house to Afzalpur Police Station. 35. PW18-Ramulu, the then ASI registered the FIR at Almel Police Station as per Ex.P16. 36. PW19-Shankar Mallappa, conducted partial investigation in the case. 37. PW20-Shettappa, PSI who registered the case initially at Almel Police Station as per Ex.P20 (FIR). 38. PW21-Veena Mohan Nayak, PSI of APMC Police Station recorded the statement of the victim. 39. PW22-Suresh, the PSI accompanied the victim from protection house to Dy.S.P. Office. 40. PW23-Shivashankar, S.P., ISD who also conducted the partial investigation in the case. 41. PW24-Shivakumar Mallappa, the Investigation Officer, recorded the statement of the victim girl under Sec. 164 of Cr.P.C and also recorded the statements of other witnesses and after obtaining the necessary documents from the concerned authorities, laid chargesheet against the accused. 42. DW1-Mallikrjun Shivappa, is the accused, deposed in respect of the false implication of him in the alleged crime. 43. On a careful perusal of the evidence of the above witnesses, in order to prove the charges leveled against the accused for the offence punishable under Ss. 42. DW1-Mallikrjun Shivappa, is the accused, deposed in respect of the false implication of him in the alleged crime. 43. On a careful perusal of the evidence of the above witnesses, in order to prove the charges leveled against the accused for the offence punishable under Ss. 363, 366, 376(2)(i) of IPC and Sec. 4 of POCSO Act, 2012 and Sec. 3(i)(xv) and 3(2)(v) of SC/ST (PA) Act is concerned, the prosecution mainly relied on the evidence of PW3-the victim girl so also the evidence of PW1-the mother of the victim and PW4 father of the victim. On perusal of the complaint lodged by PW1, admittedly there is a delay of 7 days in lodging the said complaint. The alleged incident said to have taken place on 2/10/2014 at about 12 noon and the complaint came to be lodged on 9/10/2014 before the Almel Police Station. The reason assigned for the said delay by the prosecution that the complainant's husband Chowdappa had gone to Bangalore for treatment of his son- Vithal who was operated and only upon his return she came forwarded to lodge the complaint. But on careful perusal of the complaint depicts that on 3/10/2014 itself PW2- Kasturibai the complainant very well knew that the accused had kidnapped her daughter. On the said date, the complainant along with Kasturibai went to the house of the accused to ascertain the whereabouts of the accused. It is also not in dispute that the accused had not returned to his house since 2/10/2014. On 3/10/2014, the complainant very well knew that the accused had kidnapped her daughter on 2/10/2014 while she was waiting for the bus. In the cross examination of PW1, she categorically admitted that in between 2/10/2014 to 9/10/2014 she had visited the Almel Police Station with respect to her missing daughter. However, she failed to lodge any complaint till 9/10/2014 inspite of knowing that the accused had kidnapped her daughter. The said conduct of PW1 and PW4 being the parents of the victim girl creates a doubt in their version in respect of the alleged incident. Nevertheless on careful perusal of the evidence of PW3-the victim, she categorically admitted in her cross examination that the accused took her from Afzalpur bus stand which is a crowded place and from there he took her to Matolli village in a private vehicle. Nevertheless on careful perusal of the evidence of PW3-the victim, she categorically admitted in her cross examination that the accused took her from Afzalpur bus stand which is a crowded place and from there he took her to Matolli village in a private vehicle. The victim and the accused stayed in a school on that day and on the next day, from Matolli they started walking towards Ghatteragi and the accused took her to a canal and they stayed on that day in the said place. The next day, the father of the accused came there and took the victim to their village and made her to meet the elders of her community. Accordingly, PW6 and PW7 the elderly people of the village admonished and advised her to go to her parents' house as the accused was already married. However, the victim refused and went along with the accused to Afzalpur in a Government bus. From Afzalpur, the accused took her to Gulbarga and they stayed at Gulbarga for a night. From Gulbarga they went to Chittapur and stayed in a temple for 2 to 3 days. From Chittapur the accused took the victim to Ghatteragi and stayed in a temple for one day and later in order to return to their village they went to Sindagi and from there went to Aleml and while they are waiting for the bus at Waddanhalli Cross, the police apprehended them. Admittedly, on all those days the victim has not made any attempt to escape from the clutches of the accused or to raise alarm against the accused. PW6 and PW7 clearly deposed before the Court that they advised the victim to go to her parental house as accused was a married person. In spite of that, the victim refused to go to her parental house and voluntarily went along with the accused. On perusal of the above evidence of the victim, it can be easily gathered that she accompanied the accused voluntarily without any force or threat. Even the conduct of her parents i.e. PW1 and PW4 about non lodging of complaint for a period of 7 days knowing fully well that the accused had kidnapped their daughter, once again confirms that the victim girl voluntarily accompanied the accused. 44. The learned Addl. Even the conduct of her parents i.e. PW1 and PW4 about non lodging of complaint for a period of 7 days knowing fully well that the accused had kidnapped their daughter, once again confirms that the victim girl voluntarily accompanied the accused. 44. The learned Addl. SPP has vehemently contended that since the victim being a minor at the time of incident, even if she has voluntarily accompanied the accused and consented for the sexual act, the conviction of the accused for the charges leveled against him holds good. In order to prove the age of the victim, that she was minor at the time of incident, the prosecution relied on the evidence of PW11- the Head Master, who issued Ex.P7 and Ex.P8 i.e. the School Registers and the Transfer certificate of the victim girl. On careful perusal of the evidence of PW11-the Head Master, he categorically admitted in his cross examination that the said Ex.P7 was not issued based on the birth certificate of the victim. He also admitted in his evidence that at the time of admission to the school, the production of birth certificate was compulsory. Further he stated that the Ex.P8 - Transfer certificate was not issued from his school and the said Ex.P8 is the photocopy. However, the said witness failed to produce the original of the same. Hence, by perusal of the evidence of PW11, and Ex.P7 and Ex.P8, PW11 not being the author of those certificates so also the same were not issued without looking into the birth certificate of the victim, in our considered view, much evidentiary value cannot be attached to the evidence of PW11 and Ex.P7 and Ex.P8. 45. The prosecution also relied on the evidence of PW9 i.e. Dr. Drakshayini, who conducted the ossification test of the victim girl in order to determine her age and she issued the certificate Ex.P5 and stated that the victim was aged about 15 to 16 years at the time of her examination. However, perusal of Ex.P5, certificate issued by the said doctor, clearly depicts that the said certificate issued regarding the age required to be confirmed by the Radiologist for proper determination of the age of the victim girl. In this case, the Radiologist is not examined by the prosecution. However, perusal of Ex.P5, certificate issued by the said doctor, clearly depicts that the said certificate issued regarding the age required to be confirmed by the Radiologist for proper determination of the age of the victim girl. In this case, the Radiologist is not examined by the prosecution. Hence, Ex.P5 cannot solely be relied to conclude the age of the victim girl, since it was not confirmed by the Radiologist as opined by PW9. Hence, the evidence of PW9 is also not much helpful to the prosecution to prove that the victim was minor at the time of incident. In such circumstances, the Hon'ble Apex Court in the judgment rendered in Criminal Appeal No.1898/2023 in the case of P.Yuvaprakash V/s State Rep. by Inspector of Police held that the date of birth certificate from the school or the matriculation or equivalent certificate by the concerned examination board has to be firstly preferred based on the birth certificate issued by the corporation or municipal authority or a Panchayat and it is only thereafter in the absence of those such documents the age is to be determined through ossification or any latest medical age determination test conducted on the orders of the concerned authority i.e. the committee or board or school. Admittedly, in this case, the prosecution has failed to produce the birth certificate of the victim girl and the original transfer certificate. The Hon'ble Apex Court in the case of Vinod Katara V/s State of Uttar Pradesh, reported in 2022 SCC OnLine SC 1204 in para 57 and 60 of the said judgment held as under: 57. The bone ossification test (hereinafter "ossification test") is a test that determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. the most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 yearsbeyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive. 60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bhiar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt. 46. The Hon'ble Apex Court in the above judgment has held that the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. 46. The Hon'ble Apex Court in the above judgment has held that the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. In the case on hand, even the ossification test was also not properly conducted since the report was neither confirmed by the radiologist nor was he examined before the Court. In such circumstances, in our considered view, the prosecution has failed to prove the age of the victim girl that she was 15 to 16 years at the time of alleged incident. Even otherwise as per settled law by the Hon'ble Apex Court, though her age was considered to be 16 years then also two years margin can be extended on either side. In such circumstances, it has to be considered that she attained majority i.e. 18 years at the time of incident. 47. As discussed supra, on careful perusal of the evidence of PW3 the victim girl, so also the evidence PW1 and PW4, their evidence does not inspire confidence of the Court since there are material variations in the complaint and deposition of PW1 and also the statement and evidence of PW3-victim. The evidence of PW3 shows several lacunae which have been already discussed supra and her evidence is not that of 'sterling quality'. The Hon'ble Apex Court in the judgment rendered in the case of Rai Sandeep Alias Deepu V/s State (NCT of Delhi), reported in (2012) 8 SCC 21 , referring to the judgment in Krishan Kumar Malik V/s State of Haryana, reported in (2011) 7 SCC 130 , held that; "No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality." On careful perusal of the evidence of PW3 and her parents PW1 and PW4, it is difficult to act on their testimony to convict the accused since their testimony does not inspire confidence and is found to be not reliable. 48. 48. Even the Hon'ble Apex Court in the case of Kavita Chandrakant Lakhani V/s State of Maharashtra and another, reported in (2018) 3 SCC (Cri) 391 held that, to prove the offence under Sec. 366 of IPC, the prosecution has to prove that a person must have carried the victim illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. In para 15, 16 and 17 of the said judgment it is held as under: 15. In the above backdrop, it is pertinent to mention here the ingredients of Sec. 366 of IPC which are as under: "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 extent 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 be punishable as aforesaid." 16. In order to constitute the the offence of "abduction", a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this Sec. . The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse. 17. Apart from this, to constitute an offence under Sec. 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 Sec. . So far as charge under Sec. 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 Sec. 366 IPC, the court cannot hold the accused guilty and punish him under Sec. 366 IPC. 49. On careful perusal of the above dictum laid down by the Hon'ble Apex Court, it is clear that, the accused must compel the victim girl or knowing it to be likely that she will be compelled to marry any person or in order to she may be forced or seduced to illicit intercourse. In the case on hand, it is not the case of the prosecution that the accused kidnapped her for compelling her to marry him or any other person and the accused forced or seduced her to illicit intercourse. In the case on hand, it is not the case of the prosecution that the accused kidnapped her for compelling her to marry him or any other person and the accused forced or seduced her to illicit intercourse. On perusal of the evidence of PW3, it clearly depicts that she was a consenting party and she voluntarily accompanied the accused and stayed along with him for about seven days at different places without any kind of oppose/objection. Nevertheless, PW13-the doctor who examined the victim, opined that "there are no signs of recent sexual intercourse on the victim" as per Ex.P10. Hence, the ocular evidence of PW3 the victim girl is not corroborated with the medical evidence as per Ex.P10 and the evidence of PW13. As rightly contended by the learned counsel for the appellant, the manner in which the victim deposed in her evidence in respect of the commission of the crime, does not inspire confidence of the Court. On a careful perusal of her evidence, herself and accused have travelled to different places and also stayed in the night at two places. If at all the victim was taken against her wish she would have definitely raised alarm and easily managed to escape. In the entire sequences of events, the victim has neither made any attempt to escape or raise alarm, which clearly demonstrate that the accused at no point of time either forcibly kidnapped her or committed forcible sexual intercourse on her. Hence, we are of the considered view that the prosecution has failed to prove the offences punishable under Sec. 366, 376(2)(i) of IPC and Sec. 4 of POCSO Act. 50. As for as the conviction by the Trial Court for the offence punishable under Sec. 3(2)(v) of SC/ST (PA) Act is concerned, the Hon'ble Apex Court in the judgment rendered in Ramdas and others V/s State of Maharashtra, reported in (2007) 1 SCC (Cri) 546 at para 11 of the said judgment held as under: 11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Sec. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Sec. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Sec. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside. 51. On careful perusal of the facts and circumstances and the evidence on record, in the case on hand, it is no where forthcoming in the evidence of the witnesses that the accused had either kidnapped the victim or committed rape on her for the reason, only, to belittle the caste of the victim, that she belongs to scheduled caste. There was no such intention or knowledge forthcoming on the part of the accused that he had allegedly committed the offence for the reason that the victim girl belongs to schedule caste. Even in the case of Asharfi V/s State of Uttar Pradesh, reported in (2018) 1 SCC (Cri) 489, the Hon'ble Apex Court held that in order to attract the unamended provisions of Sec. 3(2)(v) of SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he / she belongs to Scheduled Caste or Schedule Tribes community. In such circumstances, in our considered view, the conviction for the offence punishable under Sec. 3(2)(v) of SC/ ST Act does not hold good. In such circumstances, in our considered view, the conviction for the offence punishable under Sec. 3(2)(v) of SC/ ST Act does not hold good. Nevertheless, the Sec. 3(1)(xv) (3)(1)(z) of SC/ST (PA) Amended Act 2015 is also not proved by the prosecution that the accused at any point of time used force or caused a member of schedule caste or schedule tribes to leave his house, village or other place of residence. Thus, the prosecution has miserably failed to prove such charge in the case on hand that the accused used such force to either PW3 the victim or PW1 and PW4 i.e. her parents. It is admitted case of the prosecution that the victim accompanied the accused from the bus stop on the date of incident. Hence, the conviction for the said offence is also not tenable. 52. A careful perusal of the overall evidence adduced by the prosecution, in our considered view, the prosecution has failed to prove the charges leveled against the accused beyond reasonable doubt. As per settled position of law by the Hon'ble Apex Court, the prosecution has to prove its case beyond reasonable doubt and there is a distance between place of proof "may be" and "must be" as held in the case of Nagendra Singh and another V/s State of M.P., reported in 2004 (10) SCC 699 . In that view of the matter, the learned Special Judge failed to appreciate the evidence in the proper perspective and erroneously convicted the accused based on assumptions and presumptions, as such the impugned judgment is liable to be set aside. Accordingly, we answer the points raised above and proceed to pass the following: ORDER i) Criminal Appeal No.200088/2018 is allowed. ii) The judgment and order dtd. 11/6/2018 passed in Special Case (POCSO) No.2/2015 by the II Addl. Sessions Judge, at Kalaburagi, convicting the accused and thereby sentencing him under Ss. 366, 376(2)(i) of IPC and Sec. 4 of POCSO Act, 2012 and Sec. 3(i)(xv) and 3(2)(v) of SC/ST (PA) Act, is set aside. iii) The appellant/accused is acquitted from the charges for the offence under Ss. 366, 376(2)(i) of IPC and Sec. 4 of POCSO Act, 2012 and Sec. 3(i)(xv) and 3(2)(v) of SC/ST (PA) Act. iv) The Jail authorities are directed to release the accused forthwith, if he is not required in any other case. iii) The appellant/accused is acquitted from the charges for the offence under Ss. 366, 376(2)(i) of IPC and Sec. 4 of POCSO Act, 2012 and Sec. 3(i)(xv) and 3(2)(v) of SC/ST (PA) Act. iv) The Jail authorities are directed to release the accused forthwith, if he is not required in any other case. v) Fine amount deposited if any, shall be refunded to the accused.