JUDGMENT :

1. This is an appeal filed by the accused person against the judgment of conviction and sentence passed by the learned Special Judge, Uttara Kannada, Karwar, dated 13.07.2017 in S.C.No.20/2015 for the offences punishable under Sections 376 and 366 of the Indian Penal Code (hereinafter referred to as “IPC” for short) read with Section 4, 5(L) and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO the Act” for short).

2. The brief facts for purpose of appeal are as under:

According to complainant, on 13.08.2012 at 7.30 a.m. when the victim had gone to wash her clothes, this accused followed her. He induced the victim to marry him and thereby he forcibly committed sexual assault on her. On 24.12.2012 also he took her to Kelgeri village in Dharwad taluk. Therefore the parents of the victim had filed a complaint before the jurisdictional police on 03.01.2013. Accordingly, Crime No.3/2013 was registered against the accused for the alleged offences. Accused was arrested during the course of the investigation. After investigation of the case, the police have filed the charge sheet against the accused for the offences punishable under Sections 376 and 366 of IPC and sections 4, 5(L) and 6 of the POCSO Act.

3. The Special Court took the cognizance of offences alleged. After hearing both the sides, the learned Special Judge framed charge against the accused. The accused pleaded not guilty.

Consequently the Learned Special Judge conducted trial of the case.

4. On the basis of the evidence available on record, the Special Judge found that the prosecution has proved the guilt of the accused beyond any reasonable doubt. Therefore, the learned Special Judge convicted the accused for the offences punishable under Sections 376 and 366 of IPC read with Section 4, 5(L) and 6 of POCSO Act, 2012 and imposed sentence as follows:

“The accused is ordered to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.10,000/-for the offence punishable under Section 376 of Indian Penal Code r/w Section 5, 5L and 6 of the Protection of Children from Sexual Offices Act, 2012 and in default of payment of fine he is directed to undergo SI for a period of two years.

The accused is also ordered to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.10,000/-for the offence punishable under Section 366 of Indian Penal Code and in default of payment of fine he is directed to undergo SI for a period of two years.

Both sentences are ordered to run concurrently. The period during which the accused is in custody is to be taken in to consideration before computing the period of imprisonment.”

5. The said judgment has been assailed before this Court on the following grounds:

It is contended that the judgment of conviction and sentence passed by the learned Special Judge is not in accordance with law. The mother of the victim is a hearsay witness. There is no chain of link with each circumstances relied on by the prosecution. The Trial Court has not properly appreciated the oral and documentary evidence. The provisions of POCSO Act, 2012 were not at all applicable as the alleged offence was committed on 13.08.2012. The Act has come into force on 24.11.2012. Hence, the conviction is liable to be set aside.

The amendment to Section 375 of IPC came into force on 03.02.2013. Therefore, it was not applicable to the case in hand. There is no evidence to prove that the accused was responsible for the pregnancy of the victim. The alleged incident is said to have taken place on 13.08.2012. But the medical report at Ex.P.8 shows that the fetus was 24 weeks old. Therefore the victim was pregnant before the alleged incident. There is no evidence on record to show that accused had kidnapped the minor girl with any intention. The guilt of the accused was not proved beyond any reasonable doubt. The Trial Court has not properly appreciated the fact that the evidence of victim PW.10 is tutored or