Victim's statements recorded under Section 164 of Cr.P.C. can corroborate evidence against the accused even if later recanted, leading to conviction for kidnapping and sexual assault under IPC and POCSO Act.

JUDGMENT :

M.G. UMA, J.

The accused in Special Case No.117/2014 on the file of the learned Additional District and Sessions Judge, FTSC-1 (POCSO) D.K., Mangaluru, is impugning the Judgment of conviction and order of sentence dated 29.11.2021 convicting him for the offence punishable under Sections 366A, 342 and 506 of IPC and Section 4 of POCSO Act read with Section 376 of IPC and sentencing to undergo (i) rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- for the offence punishable under Section 366A of IPC, (ii) rigorous imprisonment for a period of five months and to pay fine of Rs.1,000/- for the offence punishable under Section 342 of IPC, (iii) rigorous imprisonment for a period of one year and to pay fine of Rs.2,000/- for the offence punishable under Section 506 of IPC, (iv) rigorous imprisonment for a period of seven years and also pay fine amount of Rs.10,000/- for the offence punishable under Section 4 of POCSO Act read with Section 376 of IPC with default sentences.

2. Brief facts of the case as made out by the prosecution is that, the victim -PW5 was a minor aged about 17 years. The accused kidnapped her with an intention to commit sexual assault. He had taken her to Chikkamagaluru, kept her in S.K.Regency Hotel and wrongfully confined her from 04.08.2014 till 06.08.2014 in room No.101. During that period, he committed penetrative sexual assault forcibly by giving life threat to cause her death. He also forcefully snatched the chain worn by the victim, and thereby committed the offences as stated above.

3. PW-1, the father of the victim girl lodged the first information as per Ex.P-1 alleging kidnap of the minor girl by the accused and others. On the basis of same, FIR came to be registered. On 07.08.2014 the victim was found in the company of the accused in S.K.Regency Hotel in room No.101.

The victim was rescued and accused was apprehended. The statements of the victim were recorded by the Child Welfare Committee (for short `CWC') and also by the learned Magistrate under Section 164 of Cr.P.C. After completing investigation, the charge sheet came to be filed. The accused appeared before the Trial Court, pleaded not guilty and he claimed to be tried.

4. Prosecution examined PWs-1 to PW-15 and got marked Ex.P1 to Ex.P22(a) and identified MOs 1 to 12 in support of its contentions. The accused has denied all the incriminating materials on record in his statement under Section 313 of Cr.P.C., but has not led any evidence in support of his defence. The trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt, for the offences punishable under Sections 366A, 342 and 506 of IPC and under Section 4 of the POCSO Act read with Section 376 of IPC, while acquitting him for the offences punishable under Section 392 of I.P.C. Being aggrieved by the same, the appellant is before this Court.

5. Heard Sri.B.S.Sachin, learned counsel for the appellant and Smt.Rashmi Jadhav, learned Additional SPP for the respondent-State. Perused the materials including the trial Court records.

6. Learned counsel for the appellant contended that almost all the witnesses including the victim and the informant have turned hostile and they have not supported the case of the prosecution. Under such circumstances, there are absolutely no materials to convict the accused for the above said offences. None of the independent witnesses have been examined in support of the contention of the prosecution that the accused had either kidnapped the victim girl or had abducted her to Chikkamagaluru, kept her in the hotel room, and committed sexual assault. In the absence of any material, the Trial Court committed an error in convicting the accused.

7. Learned counsel contended that Section 366A of IPC is not at all attracted to the facts of the case. Even then, the accused was convicted without any basis. The statement