The Court upheld acquittal based on the victim's voluntary participation in a relationship with the accused, highlighting that mere age does not negate the importance of consent in the absence of coercion.

JUDGMENT :

H.P. SANDESH, J.

This matter is listed for admission. Heard Smt. Rashmi Jadhav, the learned Additional SPP appearing for the appellant/State, Sri R. Suresh Babu, the learned counsel for respondent Nos.1 and 2 and Sri Javeed S, Amicus Curiae for respondent No.3.

2. The factual matrix of the case of the prosecution against the accused persons is that accused No.1 had kidnapped the minor victim girl on 26.04.2017 at about 2:00 p.m. from Nayandahalli Metro Station and committed rape on her in his house and subsequently, committed penetrative sexual assault and hence, invoked the offences punishable under Section 376 of IPC and Section 3 read with Section 4 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short). The charges levelled against accused No.2, who is the mother of accused No.1, is that she being the mother of accused No.1, has abetted her son i.e., accused No.1 to commit rape on the victim and hence, invoked Section 114 of IPC. The accused persons did not plead guilty and claimed trial and hence, the prosecution examined P.W.1 to P.W.12 and got marked the documents at Exs.P.1 to 8. The defence have not led any evidence, but 313 statement was recorded after conclusion of the trial. The defence also relied upon the evidence of D.W.1 i.e., accused No.2 and got marked the documents at Exs.D.1 to 9 and those documents are confronted to P.W.7 during the course of cross-examination.

3. The Trial Court having considered both oral and documentary evidence available on record, in paragraph No.33 onwards, considering the evidence of the prosecution witnesses, comes to the conclusion that alleged kidnap of the victim cannot be accepted as she herself voluntarily went with accused No.1 on 31.03.2017. Afterwards, both of them went to Tirupathi and Tamil Nadu on 02.04.2017. The entire evidence of victim clearly establishes that she was capable of understanding the further consequences as both herself and accused No.1 were loving each other since three years prior to 2017. The Trial Court also taken note of the alleged rape committed by accused No.1 for the first time in the month of November 2016 and the same was not informed to the police or to the parents. The Trial Court taken note of that if really she was taken forcibly by accused No.1 on 31.03.2017, certainly she should have informed the same to her mother. But on the same day, when she voluntarily went with accused No.1, both of them were in Sagar hotel, thereafter went to park, where at about 8:00 p.m. called her over phone and she has informed that she was with accused No.1 in the park and hence, not accepted the contention of kidnap. The Trial Court also taken note of date of birth of the victim is shown as 09.06.2000 and she is aged about 16 years 10 months as on 31.03.2017. The important aspect is that she was meeting accused No.1 and going with him frequently even prior to 31.03.2017. However, though she has stated alleged rape committed by accused No.1 in the month of November 2016, subsequently also she was going with him to many places.

4. A detailed discussion was made in paragraph No.34 by the Trial Court that complaint was given only with respect to her missing from the house on 31.03.2017, which is marked as Ex.P.8, which is given by her parents. The Trial Court also taken note of medical evidence. The victim was examined on 01.04.2017 and report Ex.P.4 was given, whereas she was alleged to be forcibly raped by accused No.1 on 31.03.2017. The Trial Court in paragraph No.37 taken note that she was visiting with accused No.1 to different places, hotels and outside Bangalore and they were not strangers and both of them were loving each other from three years and even mother had knowledge a