Point of Law : Aim and objective of POCSO Act is to protect the minor children from sexual exploitation and it is made clear that a minor cannot provide consent, the minor under POCSO Act being a person under age of 18 years. [Para 29.7]

JUDGMENT :

1. The State is in appeal being aggrieved by the judgment of acquittal passed by the Special Judge, Uttara Kannada, Karwar, in Special Case No.18/2016 dated 03.01.2020.

2. The facts of the case are:

2.1. It is alleged that the complainant – the mother of the victim was residing at Indira Nagar, Kirvatti, Yallapur Taluk with her husband and two daughters. The accused was their neighbour.

2.2. The victim being aged about 17 years studying in II PUC in Government College, Kirvatti, on 26.12.2015 at about 9.00 am the victim left for college but did not return, the complainant and her family members searched for her everywhere, but did not find her.

2.3. It is in that background, that a complaint was lodged with the Yellapur Police Station as regards the missing girl in furtherance of which a case in Crime No.305/2015 was registered and taken up for investigation.

2.4. After investigation was complete, the Police Inspector, Yellapur Circle, Yellapur, laid a charge sheet against the accused for the offences punishable under Sections 366, 376(2)(j) of the IPC and Sections 5(1) and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’, for brevity). Cognizance had been taken for the said offences and upon the procedures under Sections 207 and 208 of the Cr.P.C. being complied, the accused was arrested on 04.01.2016 and produced before the Court, where he was enlarged on bail.

2.5. Charges were framed for the offences punishable under Sections 366, 376(2)(j) of the IPC and Sections 5(1) and 6 of the POCSO Act. The accused pleaded not guilty and claimed to be tried.

2.6. In order to prove its case, the prosecution examined 18 witnesses as PWs.1 to 18 and marked 61 exhibits at Exs.P1 to P61. There being no material objects, none were marked.

2.7. Upon completion of trial, the incriminating evidence against the accused was put forward to him and his reply was recorded under Section 313 of Cr.P.C. The accused denied the incriminating evidence, but chose not to lead any evidence in the matter.

2.8. The Special Court after hearing the arguments was of the opinion that the evidence led by the prosecution was insufficient to convict the accused of the offences charged and the prosecution had failed to bring home its case successfully beyond all reasonable doubt and as such, acquitted the accused of the aforesaid offences.

2.9. It is being aggrieved by the same that the State is before this Court seeking to set aside the order of acquittal and for conviction of the accused for the aforesaid offences.

3. Sri. V.M. Banakar, learned Addl. SPP would submit that:

3.1. There is a heinous offence which has been committed inasmuch as accused is charged for the offences under Section 376(2)(j) as also Sections 5(1) and 6 of the POCSO Act. The victim being a minor girl, the accused having indulged in sexual intercourse with her, the trial Court ought to have appreciated this fact and convicted the accused.

3.2. The evidence on record establishes that the act of sexual intercourse has taken place, which was sufficient enough to drive home the guilt of the accused, the victim was a minor, the age of the minor having been established by the prosecution.

3.3. PW1 – complainant, who is the mother of the victim girl has categorically stated in her evidence that, as on the date of the incident, the victim was 17 years 9 months and was studying in II PUC. However, she turned hostile for the reasons best known to her. When the age of the victim was established and the defence has not raised any issue as regards countering the age of the victim, the trial Court has no option but to convict the accused for the offences under the POCSO Act.

3.4. In that background, he submits that the order of acquittal passed by the Special Court is required to be set aside and the accused is liable to be convicted.

4. Per contra, Sri. Raja Raghavendra Naik, learned counsel appearing for the accused submitted that;

4.1. All the material