IMPORTANT POINT
No DNA analysis of any person can be conducted by State without obtaining consent of party concerned.

JUDGMENT

G. Narendar J.—Heard Sri.Veeranna G. Tigadi, learned counsel for the appellant and Sri.V.M.Sheelavant, learned SPP along with Sri.Vijaykumar Majage, learned Additional SPP for the respondent.

2. It is the case of the complainant that she is residing along with her husband and two children and that eldest child is son named Sunil and aged about 15 years and that the second child is a daughter aged about 12 years and we desire to name the victim and is referred to as Ms.A for the sake of convenience. Ms.A is studying in 6th Std and her husband is working as a Mason and she is working as a Coolie. The accused Venkateshappa, who belongs to Scheduled Caste was residing near their house and developed a close relationship with the complainant and her family. He used to often visit their house to play with their children and that the children used to address him as grand-father. That on 01.05.2018 when she had gone to do Coolie work and as children were alone at home, she returned home at 1.00 in the noon, she found the door of the house had been locked and when she called out, her son responded from inside the house and he asked her to open the door which was locked from outside and when the door was opened, she enquired where Ms.A was, upon which, her son replied he does not know. Hence, she called out the name of the victim, in response, the victim replied from the bathroom of their house and then she proceeded towards the bathroom and tried to open the bathroom and she found that bathroom was locked from inside and hence, she forcibly pushed against the bathroom door and bathroom door opened to the force and Ms.A came out from the bathroom and when she peeped in, she found accused rearranging his clothes and immediately she proceeded to observe the clothes of the victim and found that the pant and undergarment had been removed and when she questioned the victim, it came to her knowledge that accused had taken victim into the bathroom and removed the pant and undergarment and had slept on the top of the victim and had done something in the place where she passes urine. By that time, accused had left the bathroom and gone to his house.

3. As her husband had gone out for work, she waited for his return and upon his return she informed him about the occurrence and thereafter, proceeded to the police station and registered the complaint and prayed that action be taken against the accused Venkateshappa son of Venkatappa @ Krishnappa aged 60 years, who belongs to Scheduled Caste.

4. Upon the said allegations, a case came to be registered as Crime No.131/2018, for the offences punishable under Section 376 of Indian Penal Code, 1860 (for short, ‘IPC’) and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). Thereafter, the complaint came to be registered at about 21.45 hours and accused was arrested on the next day i.e., on 02.05.2018 and he continues to remain in custody from the date of his arrest. The trial Court framed the following charge on 07.01.2019:—

Charge

“I, Smt. B.S. Rekha, B.A. (Law), LL.M II-Addl. District and sessions Judge, Kolar, do hereby charge you the accused as follows:—

That on 1.5.2018 at morning hours at Byrandahalli village, within the jurisdiction of Vemgal Police Station, when CW.1 & 4, parents of CW.2 were went to coolie work, you accused came to the house of CW.1 Nagarathnamma and took CW.2/victim girl who is aged about 12 years to the bathroom and committed rape on her and thereby committed an offence punishable U/S 276 of IPC and within my cognizance.

2. On the aforesaid date and time, you accused committed sexual intercourse with CW.2/victim girl who is aged 12 years and thereby committed aggravated penetrative sexual assault on her, which is an offence punishable under Sec.4 and 6 of POCSO Act and within my cognizance.

And I hereby direct you the accused be tried on the above said charge.

Dated this the 7th day of January 2019.”

5. Upon being q