Point of Law : Once the fact of victim being child is not proved, POCSO Act is not applicable.

JUDGMENT :

Aggrieved by his conviction and sentence for the offences punishable under Sections 366, 343 and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short), the accused in Special Case No.65/2014 on the file of Additional District & Sessions Judge, Special Judge, Hassan has preferred the above appeal.

2. The appellant was prosecuted in Special Case No.65/2014 for the aforesaid offences on the basis of the charge sheet filed by Hassan Extension Police Station.

3. PW.1 is the father of the complainant, PW.2 is the victim girl. PW.10 is the maternal uncle of PW.2. During the year 2014, PW.2 was staying in BCM Hostel, Hassan studying diploma. She went missing from the said hostel from 05.03.2014. PW.1 filed missing complaint as per Ex.P1. In the complaint, he suspected one Manja, Murali and Riya as cause for missing of PW.2. He claimed that the victim was aged 17 years.

4. On the basis of such complaint, PW.19 Sub-Inspector of Police of Hassan Extension police station registered the first information report as per Ex.P20 for the offence punishable under Section 363 of IPC. PW.16 and CW.38 were deputed to trace the victim PW.2. They said to have traced PW.2 and the appellant on the basis of their call detail records on 21.03.2014 in Ingalagi, Kalaburagi District in the parental house of the accused. PW.16, PW.10 and CW.38 after tracing the victim brought her back and produced her before PW.19.

5. PW.19 got produced PW.2 before the Child Welfare Committee, Hassan. On recording the statement of PW.2 and the accused, PW.19 incorporated the offences of kidnapping, sexual abuse punishable under the Indian Penal Code and the POCSO Act. After conducting the spot mahazar and getting the accused medically examined, PW.19 handed over the further investigation to PW.20. PW.20 got PW.2 medically examined, got her statement under Section 164 of Cr.P.C., recorded through judicial Magistrate, conducted further investigation and filed the charge sheet.

6. The case of the prosecution is as follows:

That victim was aged 17 1/2 years. The appellant befriended her by face book chatting and kidnapped her on 04.03.2014 at 11.00 a.m. from Hassan Bus stand, took her to his aunt’s house in Bengaluru. From there luring her of love and marriage took her to his parental house in Ingalagi village of Gulbarga District. The appellant married her on 19.03.2014 in Nagamma-Yellamma temple. After such marriage upto 21.03.2014 he kept her in his parental house and committed repetitive penetrative sexual assault on her, thereby he has committed the offence punishable under Section 366, 376 and Section 6 of the POCSO Act.

7. The trial Court on taking cognizance tried the appellant in Spl.Case No.65/2014. On conducting such trial by the impugned judgment, the trial Court convicted the appellant for the offences punishable under Section 366, 343 and 376 of IPC and section 6 of POCSO Act. Further by the impugned order, the trial Court sentenced the appellant as follows:

8. The trial Court relying on the evidence of PW.13 and Ex.P18 held that as on the date of the offence PW.2 was aged below 18 years. The trial Court held that the allegations of the kidnapping of victim, wrongful confinement and sexual assault were proved by the evidence of PW.2-the victim, PW.1 her father, PW.10-her maternal uncle and PW.14 doctor and Ex.P4 the medical examination report of the victim.

Submissions of Sri K.C.