JUDGMENT : V SRISHANANDA, J. Heard Sri Mahantesh H. Desai, learned counsel for the appellant and Smt. Arati Patil, learned High Court Government Pleader for the State. The respondent No.2, though served with the notice of appeal did not appear before this Court. 2. Appellant is the accused who suffered an order of conviction for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) in Special Case (POCSO) No.18/2015 dated 7.12.2016 on the file of the District and Sessions Judge, Yadgiri, and sentenced as under: “Accused person is sentenced to undergo S.I for 10 years and to pay a fine of Rs.20,000/- in default S.I. for one year of the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 . The sentence and in default sentence shall run concurrently. Considering the nature of the offence an amount of Rs.1,00,000/- is awarded as a compensation to the victim girl acting under Section 357 of Cr.P.C. and the accused person is directed to pay the said compensation to the victim girl.” 3. Facts of the case in brief which are utmost necessary for disposal of the present appeal are as under: Saidapur Police, Gurumitkal Circle, Yadgiri, submitted a charge sheet against the appellant alleging commission of an offence punishable under Section 366-A , 376(2)(n), 344 and 506 of the Indian Penal Code (for short ‘IPC’) and Section 6 of the POCSO Act. 4. Case of the prosecution unveils as under: 4.1. On 10.11.2014, the victim girl who was aged about 14 years was sleeping with the family members after having dinner. At about 2.00 am, accused is said to have visited the house and after awaking the victim girl, took her outside the house and then eloped her in his motorcycle bearing registration No.KA-33/R-3940. Accused took the victim girl to Raichur and from there to G.Hanumanpura village. 4.2. In the house of one Moulabi, he hired a room for rent on the ground that he is working in Shakthinagar, Raichur and that victim-girl is his wife. So representing to Moulabi, accused had forcible sexual intercourse for a period of 21 days. When the matter stood thus, on 04.12.2014, Moulabi said to have told the victim-girl that she can attend the coolie work with her. On that day, the accused had kept the front door open. So representing to Moulabi, accused had forcible sexual intercourse for a period of 21 days. When the matter stood thus, on 04.12.2014, Moulabi said to have told the victim-girl that she can attend the coolie work with her. On that day, the accused had kept the front door open. Taking advantage of the same, the victim-girl came back to her parents place in an auto rickshaw. After she revealed the sequence of events, complaint came to be lodged with Saidapur Police. Her statement was recorded by the Investigation agency in the pending complaint and thereafter, she was taken to the medical examination. Her statement was recorded before the jurisdictional Magistrate under Section 164 of Cr.P.C. Accused/appellant was arrested and he was also subjected to medical examination and thereafter charge-sheet came to be filed. 5. The learned trial Judge framed the charges for the aforesaid offences. Accused pleaded not guilty, therefore, trial was held. 6. In order to bring home the guilt of accused, the prosecution in all examined 24 witnesses and placed on record 23 documents and 06 material objects. 7. On conclusion of recording of the evidence of prosecution witnesses, the accused statement as is contemplated under Section 313 of Cr.P.C. was recorded, wherein, accused has denied the incriminatory circumstances that was found in the case of the prosecution evidence. He did not choose to place any evidence on record on his behalf and not placed any written submissions as is contemplated under Section 314 of Cr.P.C. 8. Thereafter, learned trial Judge heard the arguments of the parties and convicted the accused and sentenced as referred to supra. 9. Insofar as the acquittal of the accused under Sections 376(2)(n), 366-A, 344 and 506 of IPC, the State did not choose to file any appeal and it has become final. 10. Being aggrieved by the same, the accused is before this Court in this appeal on the following grounds: - That, looking to the entire material on record, the prosecution has utterly failed to prove the guilt of the accused, the Trail court without considering this aspect has wrongly convicted the accused. 10. Being aggrieved by the same, the accused is before this Court in this appeal on the following grounds: - That, looking to the entire material on record, the prosecution has utterly failed to prove the guilt of the accused, the Trail court without considering this aspect has wrongly convicted the accused. - That, PW-1 who is Doctor stated in her evidence that at the time of victim's examination she was conscious and oriented and no external injures present on her body and also stated that her age is about 16-17 years and there are no signs of sexual Intercourse, but the trall court without appreciating this Important aspect of the case has wrongly convicted the accused. - That, PW-2 Doctor has given evidence regarding the fitness of the accused and which is of no help to the prosecution to prove the case against the accused. - That, PW-3 who is the victim girl has stated in her evidence that on 10/11/2014 when she was sleeping along with her parents at about 2-00am the accused came and shut her mouth with one hand and caught hold her arm with another hand and took her to the motorcycle took her to Raichur G Hanumanpura village, this evidence is nothing but imaginary as it is next to Impossible to drive the motorcycle to with one hand and shut the mouth of the victim with other hand and that to at 2-00am to another village, and it is also strange that the victim stated that she was raped for 21 days and only on 22nd day she got a chance to escape from the clutches of the accused and came back to her home. And though the Trail Court has given a finding that the accused has not forcefully taken the victim girl along with him and held that the accused has not forcibly had intercourse with the victim, but has convicted the accused without any basis. - That, PW-4 & 5 are the parents of the victim who have deposed that on the day of incident they tried to chase the accused when he was taken their daughter, totally contradicts with the statement of the victim girl herself, hence it s very much clear that they have deposed falsely before the court. - That, PW-4 & 5 are the parents of the victim who have deposed that on the day of incident they tried to chase the accused when he was taken their daughter, totally contradicts with the statement of the victim girl herself, hence it s very much clear that they have deposed falsely before the court. PW-1 4 also deposed that the Police station is just 1km away but has not explained the delay in filling the complaint and PW-5 who is the mother of the victim has deposed stated she does not how many years ago she got married and she does not know the age of the victim, under such circumstances the trail court assuming that the age of victim is below 18 years and convicting the accused is without any basis and the same needs to be set aside. - That, PW-6, 7, 8, 9, 10, 13, 14, 19 & 20 have turned hostile and cross examined by the prosecution but nothing has been elicited from them in support of the case of the prosecution. - That, PW-11 who is the younger sister of the victim deposed stating that at about one and half year back the accused took her sister by closing the victim mouth with kerchief, totally contradicts with the evidence of the PW-3 the victim and that with the evidence of PW-4 & 5 the parents of victim and PW- 11, hence her statement in no way helps the case of the prosecution. - That, PW-12 who happens to be the grandmother of the victim I s a hearsay witness, has stated whatever has been narrated to her by the victim and hence her evidence in no way helps or proves the case of the prosecution against the accused. - That, PW-15 is the Engineer who prepared the spot sketch, PW-16 & PW-17 are the PDO's and PW-18 is the GESCOM Engineer and all there witnesses have deposed anything against this Appellant/Accused and hence there evidence is of no help to the prosecution case. - That, PW-21 is the head constable who has given the MO's for test to the laboratory and has not spoken against this Appellant, and hence his evidence will not support to prove the guild of the accused. - That, PW-21 is the head constable who has given the MO's for test to the laboratory and has not spoken against this Appellant, and hence his evidence will not support to prove the guild of the accused. - That, PW-22 is the Police Inspector who has registered the case and arrested the accused, has deposed regarding PW-4 giving the complaint, but looking to the statement/evidence of the victim and other witnesses which totally contradicts to each other. Hence evidence of this witness will not support the case of the prosecution at all. - That, PW-23 who is the retired Principal has given her evidence regarding the attendance and regarding the date of birth of the victim, In cross examination has stated that she does not know on basis the date of birth of the victim is entered in the register and it is only on the basis of TC the date of birth of the victim is entered in the register. But the Trail Court considering this evidence and holding that the victim is below 18 years of age is without any basis and has wrongly convicted the accused. - That, PW-24 the Investigating Officer has not at all conducted the investigation properly and the material placed in the charge sheet by the IO are of no help to the prosecution in order to prove the charges against the accused and the Trail Court ought to have properly appreciated the evidence of the IO and should have acquitted the accused as nothing is placed to the prove the case if the prosecution. - That, the Trail Court has not properly put the questions pertaining to material evidence on record to the accused while questioning them under section 313 of Cr. P. C. - That, the sentence Imposed on the appellant is harsh and not reformative, the fine imposed is also not proportionate, very excessive and without any basis. The impugned judgment of Conviction and order of sentence are opposed to facts, probabilities, circumstances and law.” 11. Sri. Mahantesh Desai, learned counsel for the appellant reiterating the grounds in the appeal memorandum contended that, in the case on hand the prosecution did not prove the age of the victim-girl by placing cogent evidence on record, resulting in miscarriage of justice. 12. Sri. Mahantesh Desai, learned counsel for the appellant reiterating the grounds in the appeal memorandum contended that, in the case on hand the prosecution did not prove the age of the victim-girl by placing cogent evidence on record, resulting in miscarriage of justice. 12. He also contended that, the very fact that the learned trial Judge acquitted the accused for the offence under Section 376(2)(n) of IPC, there could not have been an order of conviction for the offence under Section 6 of the POCSO Act resulting in miscarriage of justice and sought for allowing the appeal. 13. He would further contend that, the Doctor who examined the victim-girl who is examined before the Court as P.W.1, before the Court specifically stated that while narrating the history, the victim girl has stated that she had voluntarily accompanied the accused. Therefore, there is no element of forcible sexual intercourse, so as to record an order of conviction under Section 6 of the POCSO Act, and therefore, the trial Judge has committed a grave error in convicting the accused for the offence under Section 6 of the POCSO Act, and sought for allowing the appeal. 14. Alternatively, Sri. Mahantesh Desai would contend that, in the event this Court upholding the order of conviction, the same needs to be scaled down to Section 8 of the POCSO Act, in the absence of cogent evidence placed on record and sought for allowing the appeal to that extent. 15. In support of his submissions, he has placed reliance on the Judgment rendered by this Court in Criminal Appeal No.2056/2022 dated 10.02.2025 in the case of Shiba Riklasana Vs. The State of Karnataka and another. 16. Per contra, Smt. Arati Patil, learned High Court Government Pleader supports the impugned Judgment. She would further contend that, in a matter of this nature, irrespective of the other material evidence placed on record, the oral testimony of the victim-girl assumes greater significance, if it inspires the confidence of the Court in establishing the offence under Section 6 of the POCSO Act and therefore, sought for dismissal of the appeal. 17. She would further contend that, the alternate submission canvassed on behalf of the appellant cannot be considered by this Court in view of the facts and circumstances of the case on hand and facts and circumstances that were available in the case of Shiba Riklasana (supra). 18. 17. She would further contend that, the alternate submission canvassed on behalf of the appellant cannot be considered by this Court in view of the facts and circumstances of the case on hand and facts and circumstances that were available in the case of Shiba Riklasana (supra). 18. She would also contend that, on the mere fact that, few of the prosecution witnesses having turned hostile to the case of the prosecution including Moulabi, the same would not cause any serious dent to the case of the prosecution and sought for dismissal of the appeal in toto. 19. Having heard the arguments from both sides, this Court perused the material on record meticulously. 20. On such perusal of the material on record, following points would arise for consideration: (i) Whether the material evidence placed on record by the prosecution would be sufficient enough to uphold the order of conviction recorded by the trial Judge for the offence under Section 6 of the POCSO Act? (ii) Whether the impugned Judgment is suffering from legal infirmity or perversity? (iii) Whether the sentence is excessive? (iv) What order? Regarding Point Nos.1 to 3: 21. In the case on hand, the prosecution though examined 24 witnesses, the oral testimony of the victim-girl and her parents assumes a greater significance. The victim- girl who is examined as P.W.3 has specifically deposed as to what transpired on 10.11.2014 and subsequent events with graphic details. 22. It is her testimony that she was sleeping along with her family members in one room/hall which is a tin shed house, after dinner. Accused who gained entry inside the house and pulled the bed sheet and thereafter held her arm and took her out from the house. Thereafter, the accused had taken her on the motorcycle which was parked about 80 meters away from the house and both of them went to Raichur. Thereafter, they went to G. Hanumanpura vallage, wherein, the accused had already found a room in the house of Moulabi who is examined as P.W.10. 23. In the said room, the accused and the victim-girl stayed till up to 4 th December, 2014. It is the specific case of the victim-girl that every day, the appellant had sexual intercourse with her and in the morning he used to lock the room from outside and would go away and return home in the evening. 24. 23. In the said room, the accused and the victim-girl stayed till up to 4 th December, 2014. It is the specific case of the victim-girl that every day, the appellant had sexual intercourse with her and in the morning he used to lock the room from outside and would go away and return home in the evening. 24. It is her specific testimony that, Moulabi enquired her to attend the coolie work and on hearing the same, accused opened the lock on 04.12.2014 thinking that the victim-girl would be attending the coolie work along with Moulabi and would not run away from the house of the Moulabi. 25. Taking advantage of the same, the victim-girl came back to her parents place in an auto rickshaw. 26. By then, there was already a complaint lodged with Saidapur Police and soon after the victim-girl came back to the house, she was taken to the Police Station, whereas, her statement was recorded and she has been subjected to medical examination by P.W.1. Further, the victim-girl has stated that she was made to co-operate with the appellant with dire consequences like taking away the life. 27. Detailed cross-examination of P.W.3 did not yield any positive material so as to disbelieve the case of the prosecution to any extent. On the contrary, suggestions were made to the victim-girl as to the effect that, the appellant is totally stranger to P.W.3. 28. Further, the parents of the victim-girl deposed in line with the victim-girl and they also deposed about the kidnapping of P.W.3 by the accused and lodging the complaint. P.W.2 is the Doctor who has issued impotency certificate after examining the accused. 29. No doubt in the cross examination of P.W.1, it has been elicited that, the hymen can be torn by cycling. But, when the material evidence placed on record, especially the history that has been recorded by P.W.1, about the incident it has been clearly stated that, accused had sexual intercourse with victim-girl. But victim-girl said to have given a history before the Doctor that she voluntarily had sexual intercourse and there was no force used in the incident. 30. The other material evidence on record are formal in nature. The oral testimony of P.W.1 coupled with oral testimony of P.W.3 to P.W.5 is sought to be re-appreciated by the counsel for the appellant in challenging the veracity of the impugned Judgment. 30. The other material evidence on record are formal in nature. The oral testimony of P.W.1 coupled with oral testimony of P.W.3 to P.W.5 is sought to be re-appreciated by the counsel for the appellant in challenging the veracity of the impugned Judgment. In order to appreciate the argument put forth on behalf of the appellant, it is just and necessary for this Court to cull out Section 375, sixthly as well as Section 5 of the POCSO Act, which is punishable under Section 6 of the POCSO Act. They read as under: Section 375 of Indian Penal Code : 375. Rape – A man is said to commit “rape” if he - (a) to (d) xxxxx First.- xxxx Secondly. – xxxxx Thirdly.- xxxxx Fourthly.- xxxxx Fifthly.- xxxxx Sixthly.- With or without her consent, when she is under eighteen years of age. Section 5 of the Protection of Children From Sexual Offences Act, 2012: 5. Aggravated penetrative sexual assault – (a) to (k) xxxxx (l) Whoever commits penetrative sexual assault on the child more than once or repeatedly; or (emphasis supplied) 31. On close reading of the above provisions, it is crystal clear that, in the cross-examination of P.W.1 itself, there is no question as to the age of the victim-girl, on behalf of the accused. 32. Further, there is no material evidence placed on record, by the accused to show that, the victim-girl is not aged 14 years as on the date of incident. Further, mere suggesting that victim-girl was not aged 14 years would not take away the responsibility of the accused in stating that she is a major or not a child. It is also pertinent to note that in the light of the suggestion made to P.W.3, which is no doubt denied, that accused is a stranger to P.W.3 there could not have been any suggestion that the victim-girl is aged more than 18 years. 33. Partinently, in the cross-examination of P.W.3, it has been elicited about the stay of the victim-girl along with the accused for a period of twenty one days. When such suggestions are put to the victim-girl, the further suggestion that the appellant is stranger to the victim-girl would be contradictory in nature. 34. 33. Partinently, in the cross-examination of P.W.3, it has been elicited about the stay of the victim-girl along with the accused for a period of twenty one days. When such suggestions are put to the victim-girl, the further suggestion that the appellant is stranger to the victim-girl would be contradictory in nature. 34. These aspects of the matter when viewed cumulatively, when the material evidence is placed on record to the effect that the victim-girl is aged 14 years which has not been seriously controverted by cross-examining P.W.3 to P.W.5, this Court has no hesitation in holding that, as on the date of the incident, the victim-girl was a minor and to be treated as a child within the meaning of Section 2 of the POCSO Act. 35. Moreover, the school register extract marked at Ex.P.23 would make it clear that, the victim-girl is a child within the meaning of Section 2 of the POCSO Act. 36. Having said thus, material evidence placed on record, especially the oral testimony of P.W.3 and her statement recorded under Section 164 of Cr.P.C, before the Magistrate would corroborate each other. P.W.10-Moulabi though turned hostile to the case of the prosecution, specifically stated that, the victim-girl stayed in her house for some time. 37. The victim-girl who is from Saidapur of Yadgiri district, who is a minor, how could she stayed in G. Hanumanpura village in Raichur district, all alone is a question that needs to be taken into account if not she is in the company of the accused. 38. All these aspects of the matter in the light of the appeal grounds when re-appreciated, the ingredients to attract the offence under Section 5(1) of POCSO Act, there were repeated sexual intercourse by the appellant with P.W.3, stands established. 39. Now coming to the question of whether it was a forcible or a consensual sexual intercourse is concerned, since the victim-girl is aged 14 years, following the dictum of the Hon’ble Apex Court in the case of Independent Thought Vs. 39. Now coming to the question of whether it was a forcible or a consensual sexual intercourse is concerned, since the victim-girl is aged 14 years, following the dictum of the Hon’ble Apex Court in the case of Independent Thought Vs. Union of India and another, reported in (2017) 10 SCC 800 and in the case of In re;- Right to Privacy of Adolescents , reported in 2024 SCC Online 2055 , herein put forward on behalf of the appellant and it was a consensual sexual intercourse and therefore, would not attract the offence under Section 6 of the POCSO Act, cannot be countenanced in law. 40. Further, from the above definition of aggravated sexual intercourse as is defined under Section 5(l) of the POCSO Act, the element of forcible sexual intercourse is absent and what has been envisaged in the said provision is the repeated sexual intercourse with a child. 41. Therefore, the argument put forward on behalf of the appellant that the offence should be scaled down from Section 6 to Section 8 of the POCSO Act, cannot be countenanced in law. 42. Insofar as, the Judgment of this Court in Shiba Riklasana referred to supra is concerned, in the said case factual aspects are different, inasmuch as the victim-girl told different statements before the two different Magistrate under 164 of Cr.P.C. Further, she did not spell out the ingredients that there was a forcible sexual intercourse that the accused had with her. Moreover, there is no evidence on record which would repeatedly indicate that the accused had such sexual intercourse with the victim-girl. Therefore, the benefit that has been granted to the appellant Shiba Riklasana, in the said case cannot be granted to the present appellant in view of the factual aspects being altogether different. 43. Learned trial Judge has granted ten years of simple imprisonment, which is the minimum for the proved offence under Section 6 of the POCSO Act in the impugned Judgment. The State for the reasons best known to it, did not challenge the acquittal of the appellant for the remaining offences. 44. 43. Learned trial Judge has granted ten years of simple imprisonment, which is the minimum for the proved offence under Section 6 of the POCSO Act in the impugned Judgment. The State for the reasons best known to it, did not challenge the acquittal of the appellant for the remaining offences. 44. When there is a specific minimum imprisonment provided by the statute and there is no discretionary power vested in the Court either by way of proviso or supplementing the reasons for reducing the minimum punishment, this Court cannot accede to the request made on behalf of the appellant that the custody period already undergone by the appellant may be treated as a period of imprisonment taking note of the fact that the accused is now married and having a wife and family to maintain. 45. In view of the foregoing discussions, point No.1 is answered in affirmative and point Nos.2 and 3 in the negative, respectively. Regarding Point No.4: 46. In view of the finding of this Court on point Nos.1 to 3 as above, the following order is passed ORDER (i) Appeal is dismissed; (ii) The appellant is granted time till 30.07.2025 to surrender before the trial Court for serving the remaining part of the sentence. (iii) Office is directed to return the trial Court records with copy of this Judgment.