The court acquitted the accused of kidnapping and rape due to lack of evidence proving absence of consent, establishing that retrospective application of law violates constitutional safeguards.

JUDGMENT :

G. BASAVARAJA, J.

1. Feeling aggrieved and dissatisfied with the judgment of conviction and order of sentence dated 28^th June, 2014 passed by the Principal District & Sessions Judge, Tumkur in SC.No.274 of 2012 for the offence punishable under Sections 366A and 376 of IPC , accused has preferred this appeal.

2. The brief facts of the prosecution case are that one Bhagyamma wife of Papanna, a resident of Narasapura village, Kasaba Hobli, Tumkur Taluk, lodged a complaint before the Sub-Inspector of Police, Bellavi Police Station, stating that her daughter who was studying in II PUC, had gone missing from her house at about 4:00 a.m. on 31^st May, 2011. Based on the said complaint, a case was registered in Crime No.57 of 2011 on 03^rd June, 2011. Subsequently, the same complainant lodged another complaint on 09^th June, 2011 after tracing her daughter along with one person named Kadaman, both of whom were brought to the Bellavi Police Station.

3. During inquiry, the complainant’s daughter stated that the accused, who was known to her and was working as a laborer in the Hemavathi Channel, had taken a room on rent and was in close contact with her. The accused had proposed marriage to her, and on 31^st May, 2011 at about 4:00 a.m., he induced and persuaded her to leave the house without informing anyone. Thereafter, the accused took her to Kanchipuram town in the State of Tamil Nadu, where he secured accommodation and committed forcible sexual intercourse with her, against her will on multiple occasions.

4. It is thus alleged that the accused kidnapped the victim, a minor girl, from her lawful guardianship and committed rape on her at Kanchipuram, Tamil Nadu. Hence, the complaint was registered against the accused for offences punishable under Sections 366A and 376 of the Indian Penal Code.

5. The case was committed to the Trial Court by the learned 1st Additional Civil Judge and JMFC-II, Tumkur, in Criminal Case No. 2491 of 2012 against the accused for offences punishable under Sections 366A and 376 of the Indian Penal Code. After the accused appeared before the Trial Court, after hearing, the Trial Court found sufficient grounds to frame charges for the said offences. The charges were accordingly framed, and the accused pleaded not guilty and claimed to be tried. The prosecution examined thirteen witnesses as PWs 1 to 13 and produced documentary evidence marked documents as Exhibits P1 to P11, including the complaint, panchanama, study certificate, medical certificates, and FIRs. After the prosecution evidence was closed, the accused was examined under Section 313 of the Cr.PC, and one defense witness, Sudarshana Babu, was examined as DW1.

6. After the full fledged trial, upon hearing the final arguments advanced by both the learned Public Prosecutor and the defense counsel, the trial court after a careful perusal of the material evidence on record, hold that the accused was guilty of the offences punishable under Sections 366A and 376 IPC , and passed final orders accordingly, the Trail Court has convict the accused herein for alleged offences under section 376 and 366A of and consequently sentenced the appellant herein for a rigorous imprisonment of 8 years with a fine amount of Rs.4000/- for the offences under section 376 and sentenced the appellant herein for a rigorous imprisonment 3 years and with a fine amount of Rs.2,000/- for the offences under section 366A of . Aggrieved by the same, the accused preferred this appeal.

Arguments submitted by the Appellant Counsel:

7. The learned counsel for the appellant/accused submitted that the prosecution case was false, fabricated, and inconsistent with the facts on