JUDGMENT : V Srishananda, J. Heard Sri Basavaling Nasi, learned counsel for the appellant and Sri Veeranagouda Malipatil, learned High Court Government Pleader for the respondent/State. 2. Appellant is the accused, who suffered an order of conviction in Special Case No.40/2018 and sentenced as under: “The accused is sentenced to undergo R.I. for three and half years and to pay fine of Rs.5,000/- in-default S.I. for three months of the offence punishable under Section 366 of Indian Penal Code . Further, accused is sentenced to undergo R.I. for six months of the offence punishable under Section 506 of Indian Penal Code . All the sentences and in default sentences shall run concurrently. The accused is entitled for the benefit provided under Section 428 of Cr.P.C. Interim order made in-respect of M.O.1 motor cycle bearing No.KA-33-U-8161 i.e., (Bajaj Pulsar 220 SF registration chassis No.ND2A13EY6GCH55256 and engine No.DKYCGH72405) is made absolute after appeal period is over. Supply free copy of the Judgment to the accused forthwith.” 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: 3.1. A complaint came to be lodged with Gogi Police Station on 02.09.2017 at 06:30 p.m. by the father of the victim girl contending that on 31.08.2017 after completing the dinner, complainant along with his wife, victim girl and other family members of the complainant slept in their house situated at Nadihal village. 3.2. In the midnight, the victim girl woke up and opened the main door. At that juncture, the complainant asked why she is opening the main door. She informed that she is going outside to attend to a nature call. After few minutes, the complainant heard a screaming sound of the victim girl. Immediately, the complainant and his wife rushed to the main door but it was closed from the outside. Thereafter, they rushed towards the window and noticed that the accused forcibly abducting the victim girl on his motorcycle. He opened door by using the force and tried to chase the accused, but it was in vain. 3.3. Soon thereafter, they rushed to the house of the accused. They noticed that the house was locked. Immediately, the complainant and his friend Ambalappa searched for the victim girl but were not able to trace her. He opened door by using the force and tried to chase the accused, but it was in vain. 3.3. Soon thereafter, they rushed to the house of the accused. They noticed that the house was locked. Immediately, the complainant and his friend Ambalappa searched for the victim girl but were not able to trace her. They also kept the search next day in and around the village and the places of acquaintance; but all their efforts were in vain and ultimately they lodged the complaint. 3.4. After the case was registered, the police investigated the matter. They were able to trace the victim girl on 08.09.2017 and on inquiry, police invoked the provisions of Sections 376 and 506 of the Indian Penal Code (for short, ‘IPC’) along with Sections 6 and 8 of the Protection of Children from Sexual Offences Act (for short, ‘the POCSO Act’). 4. After thorough investigation, police filed chargesheet. The presence of the accused was secured as he was on bail. After due trial, the learned Trial Judge, analyzed the material evidence cumulatively and convicted the accused for the offences under Sections 366 and 506 of IPC, but acquitted for the remaining offences. 5. The State for the reasons best known to it, did not challenge the acquittal of the accused for the offences under the provisions of the POCSO Act and as such that become final. 6. Being aggrieved by the judgment of conviction and order of sentence for the offences under Sections 366 and 506 of IPC, the accused has preferred the present appeal on the following grounds: That the impugned judgment and order of conviction and sentence recorded by the learned Trial Judge is contrary to law, facts and evidence on record. Hence the same is liable to be set aside. The reason assigned by the learned Trial Judge while passing the impugned judgment and order of conviction and sentence are erroneous and as such he has slipped into an error and passed the impugned judgment and order of conviction and sentence, resulting in substantial miscarriage of justice to the case of appellant. That, there is delay of 2 days in filing the complaint and the prosecution has failed to explain the delay in filing the complaint which in itself creates a serious doubt about the happening of the incident itself. That, there is delay of 2 days in filing the complaint and the prosecution has failed to explain the delay in filing the complaint which in itself creates a serious doubt about the happening of the incident itself. It is submitted that the victim girl has turned hostile to the prosecution case & the trial court has committed grave error in convicting the appellant and hence the same requires reconsideration by this Hon'ble Court. It is submitted that, the trial court has erred in convicting the appellant only the basis of the self serving statement of PW-2 who is the father of the victim without there being any corroboration by any other witness & the trial has failed to appreciate the fact that the victim has not supported the prosecution version. Hence the same requires reconsideration by this Hon'ble Court. It is submitted that PW-8 who is the sister of the victim, has categorically admitted in her cross-examination that PW-2 had accompanied the victim & stood watch near the door, however PW-2 in his complaint has stated that victim alone went out of the house & door was locked from the outside, there is contradiction between the statement of PW 2 & 8 who are cited as alleged eyewitnesses by the prosecution & the prosecution has failed to prove the factum of abduction beyond reasonable doubt, under such circumstance the trial court has erred in convicting the appellant & the same requires reconsideration by this Hon'ble court. It is submitted that the trial court has erred in convicting the appellant for the offence punishable under 506 of I.P.C, since as per the prosecution case it is the victim who was criminally intimidated by the appellant, however the victim has not supported the prosecution case, under such circumstance no offence U/S 506 of I.P.C can be made, this aspect of the matter has not all been considered by the trial & the trial court has committed a grave error in convicting the appellant for the offence U/S 506 of IPC, hence the same requires reconsideration. The trial court has totally ignored the bristling inconsistencies and the contradiction in the evidence of the prosecution witnesses and has given undue weight to the insufficient. 7. The trial court has totally ignored the bristling inconsistencies and the contradiction in the evidence of the prosecution witnesses and has given undue weight to the insufficient. 7. Reiterating the grounds urged in the appeal memorandum, learned counsel for the appellant contended that no ingredients whatsoever to attract the offences punishable under Sections 366 and 506 of IPC are not established by the prosecution and as such, the order of conviction and sentence needs to be set aside. 8. He would further contend that the very complaint averments look artificial, inasmuch as, the complainant having come to know on 31.08.2017 in the night hours at 10:00 p.m., about kidnapping of the victim girl, did not choose to file any complaint with the police till 6:30 p.m. on 02.09.2017. 9. Further, the delay in lodging the complaint exposes the hollowness in the case of the prosecution and very genesis of the crime as is contended by the prosecution itself is doubtful and on such circumstances, learned Trial Judge convicting the accused for the offence punishable under Sections 366 and 506 of IPC cannot be countenanced in law and sought for allowing the appeal. 10. He would further contend that it is the victim girl, who voluntarily eloped with the appellant. Therefore, there was no complaint lodged with the police till the victim girl was traced by the police. It is also contended that the contention of the prosecution that based on complaint registered on 02.09.2017 at 6:30 p.m., police traced the victim girl in the company of the appellant is far from truth, on the contrary, voluntarily victim girl returned to the house and there is a show of arrest of the appellant and very fact that the learned Trial Judge has acquitted the appellant for the offences punishable under Sections 6 and 8 of the POCSO Act shows that the prosecution story is not established by placing cogent and convincing evidence on record and thus, sought for following the appeal. 11. 11. In the alternative, learned counsel for the appellant would contend that in the event this Court upholding the order of conviction, taking note of the fact that victim girl is now married and living a happy married life and appellant is also married and his wife is under pregnancy as of now, the custody already undergone by the appellant may be treated as period of imprisonment by enhancing the fine amount reasonably and sought for allowing the appeal to that text. 12. Per contra, learned High Court Government Pleader would contend that admittedly the victim girl was the minor and her parents are the natural guardians and victim girl was in custody of her parents. Very fact of a minor girl found in the company of the appellant, when parents of victim girl saw her on the last time when she was sleeping along with other family members in the house on 31.08.2017 after finishing the dinner and later on found in the company of the appellant on 02.09.2017, completes the offence punishable under Section 366 of IPC. Therefore, the conviction of the appellant needs no interference. 13. He would further contend that the victim girl was threatened with dire consequences including taking away her life, if the relationship is disclosed to anybody and therefore, all ingredients to maintain the conviction of the appellant for the offence under Section 506 of IPC also needs no interference in the absence of any defence evidence placed on record by the accused and thus, sought for dismissal of the appeal. 14. Insofar as the alternative argument is concerned, learned High Court Government Pleader would contend that people like appellant cannot be shown any leniency as the same would result in encouraging the similarly placed perpetrators of the crime and send a wrong message to the society and thus sought for dismissal of the appeal in toto. 15. Having heard the arguments of both sides, this Court perused the material on record meticulously. 16. On such perusal of the material on record, following points would arise for consideration: 1. Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellant for the offences punishable under Sections 366 and 506 of IPC? 2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference? 3. Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellant for the offences punishable under Sections 366 and 506 of IPC? 2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference? 3. Weather the sentence needs modification? 4. What order? Regarding point Nos.1 and 2: 17. In the case on hand, admittedly the victim girl was a minor as on the date of incident i.e., on 31.08.2017. Testimony of prosecution witnesses is consistent with the complaint averments that on 31.08.2017, complainant along with his wife and children after taking the dinner, slept in their house at about 10:00 p.m. in Nadihal village. 18. In the midnight hours, the complainant got up as there was a sound opening the main door and victim girl was proceeding through the main door. Complainant asked the victim girl as to why she is opening the main door, at that juncture, victim girl has stated that she is going out to attend the nature call. 19. However, it is the specific testimony of the complainant that soon thereafter, he heard the loud scream of the victim girl and as such, complainant and his wife proceeded towards the main door but it was locked from outside. As such, they wanted to find out what is happening outside the house and therefore, they peeped through the window and they saw accused forcibly kidnapping the victim girl on his motorcycle. 20. Thereafter, the complainant used the force and ultimately opened the main door, came out, searched for the victim girl and she was not available. Thereafter, he searched for the victim girl along with Ambalappa next day including visiting the house of the accused. But house of the accused was locked and they kept the search in places of acquaintance but all their efforts were in vain. As such, they lodged complaint with Gogi police on 02.09.2017 at about 6:30 p.m. 21. Thereafter, he searched for the victim girl along with Ambalappa next day including visiting the house of the accused. But house of the accused was locked and they kept the search in places of acquaintance but all their efforts were in vain. As such, they lodged complaint with Gogi police on 02.09.2017 at about 6:30 p.m. 21. Police conducted the spot mahazar and on 08.09.2017, victim girl came back to her parents house and they took her to the police station at about 2:00 p.m. On enquiry, victim girl stated that on 01.09.2017 at 12:45 a.m., when she came out from her house to attend the nature call, accused induced her, abducted her on his motorcycle, took her to a lodge at Lingasugur and committed sexual intercourse forcibly. Thereafter, took her to Kollur village in Bellary District and kept her in the house of Smt.Padmalatha from 01.09.2017 to 08.09.2017 and he had repeated sexual intercourse with her. 22. Based on such statement given by the victim girl vide Ex.P1, police invoked Sections 376 and 109 read with Section 34 of IPC and also Section 6 of the POCSO Act. These material aspects are not in dispute. However, victim girl when examined before the Court, did not support the case of the prosecution with regard to forcible sexual intercourse. 23. It is settled principles of law and requires no emphasis that statement of the victim girl with regard to penetration of the male part to the female part to the slightest extent is a sine qua non to record an order of conviction either under Section 6 of the POCSO Act or under Section 376 of IPC. In the absence of such a statement and victim girl having supported the case only with regard to abduction, the Trial Judge after appreciation of the other material evidence on record, which are corroborative in nature, recorded an order of conviction for the offences punishable under Sections 366 and 506 of IPC. 24. In the light of the appeal grounds, this Court re-appreciated the material evidence on record. On such re-appreciation of the material on record, it is pertinent to note that what transpired between 12:45 a.m. on 01.09.2017 till the victim girl returned to her parents house on 08.09.2017 is known to the accused and victim alone. 25. 24. In the light of the appeal grounds, this Court re-appreciated the material evidence on record. On such re-appreciation of the material on record, it is pertinent to note that what transpired between 12:45 a.m. on 01.09.2017 till the victim girl returned to her parents house on 08.09.2017 is known to the accused and victim alone. 25. There is no material evidence on record that in the house of Smt.Padmalatha, the accused committed repeated sexual intercourse in the absence of any other evidence especially when the victim girl has not supported the case of the prosecution in that regard to attract the offence punishable under Section 6 of POCSO Act. 26. Under section 5(m) of the POCSO Act, there must be repeated sexual intercourse on a minor girl by the accused. Since the victim girl failed to testify about the factum of repeated forcible sexual intercourse, acquittal of the appellant for the aforesaid offence is thus justified. 27. Pertinently State did not choose to file any appeal against the acquittal of the appellant for the offence punishable under Section 376 and Section 6 of the POCSO Act. Under such circumstances, the said finding of the learned Trial Judge has become final. Very fact that the learned Trial Judge has acquitted the appellant for the aforesaid offences shows that there is sufficient evidence of application of judicial mind while recording the order of conviction for remaining offences. 28. Admittedly, victim girl being minor and her custody is with her parents, abducting the victim girl on the motorcycle at 12:45 a.m. near her house on the motorcycle, accused is liable to be punished for the offence under Section 366 of IPC. While returning to the house, it is the case of the prosecution that victim girl was threatened not to disclose the acts that has been committed by him to her parents or anybody with dire consequences. Accordingly, ingredients to attract the offence under Section 506 of IPC also stands established. 29. In view of the foregoing discussion, point No.1 is answered in the affirmative and point No.2 in the negative respectively. Regarding point No.3: 30. Learned Trial Judge has granted three years of rigorous imprisonment for the offence punishable under Section 366 of IPC. However, victim girl is now married and is living happy married life. Appellant was also in custody during the trial for a period of three months. 31. Regarding point No.3: 30. Learned Trial Judge has granted three years of rigorous imprisonment for the offence punishable under Section 366 of IPC. However, victim girl is now married and is living happy married life. Appellant was also in custody during the trial for a period of three months. 31. Taking note of the fact that accused is now married and is having a wife, who is under pregnancy as of know and incident has occurred when the appellant was in full youth and for whatever be the reasons, victim girl having not supported the forcible sexual intercourse and there was no resistance offered by the victim girl from 01.09.2017 to 08.09.2017, considering the custody period as imprisonment for the offences under Sections 366 and 506 of IPC by enhancing the fine amount in a sum of Rs.40,000/- would meet the ends of justice in the peculiar facts and circumstances of the case. 32. Further, portion of the fine amount can also be paid as compensation to the victim girl through complainant, which would serve the ends of justice better. Accordingly, point No.3 is answered partly in the affirmative. Regarding point No.4: 33. In view of the finding of this Court on point Nos.1 to 3 as above, following order is passed: ORDER a) Appeal is allowed in part. b) While maintaining the conviction of the appellant/accused for the offences punishable under Sections 366 and 506 of IPC, custody period already undergone by the accused is treated as period of imprisonment and to pay enhanced fine of Rs.40,000/- on or before 30.07.2025. c) Failure to pay the enhanced fine amount, the order of sentence of imprisonment passed by the Trial Judge stands restored automatically. d) After receipt of a sum of Rs.40,000/-, a sum of Rs.35,000/- is ordered to be paid as compensation to the victim girl through her father, who is examined PW.2. e) Office is directed to return the Trial Court records with copy of this judgment forthwith for issue of modified conviction warrant.