This appeal is filed by the appellant-accused under

Section 374(2) of Cr.P.C. for setting aside the judgment of

conviction and sentence passed by the L Additional City Civil

and Sessions Judge, Bengaluru in Spl.C.C.No.149/2018 dated

29.12.2021 for having found guilty and convicted for the

offences punishable under Sections 363, 366, 376 of IPC. The

appellant was sentenced to undergo rigorous imprisonment for

a period of 10 years and to pay fine of Rs.5,000/- and in

default

of

payment

of

fine,

he

shall

undergo

simple

imprisonment for one month for the offence punishable under

Section 6 of POCSO Act and no separate sentence awarded

under Sections 366 and 363 of IPC.

2.

Heard the arguments of learned counsel for the

appellant and learned High Court Government Pleader for the

respondent - State.

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3.

Respondent No.2 served unrepresented.

4.

The rank of the parties before the Trial Court is

retained for the sake of convenience.

5.

The case of the prosecution is that complainant-

PW.4 filed a complaint before the Police alleging that her minor

foster daughter i.e., PW.1 was missing from the house on

24.11.2017. Later, the victim girl came back on 4.12.2017

and on enquiry with her, the complainant came to know that

the accused abducted her, taken her to KGF, married her and

sexually assaulted her. After registering the FIR, the Police

arrested the accused on 04.12.2017 and till then, he is in

custody. The investigation is completed and charge sheet has

been filed before the Special Court. Accordingly, the charges

were framed against the accused, he has denied the same.

Hence, the prosecution called upon to adduce the evidence.

Accordingly, the prosecution examined 13 witnesses as per

PWs.1 to 13, got marked 12 documents as per Exs.P.1 to P.12

and after the evidence, the statement of the accused under

Section 313 of Cr.P.C. was recorded. The case of the accused

is one of the total denial, but not entered into any defence.

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Accordingly, the Trial Court found the appellant guilty and

convicted and sentenced as stated above. Being aggrieved by

the same, the appellant is before this Court.

6.

Learned counsel for the appellant has contended

that none of witnesses have supported the prosecution case

including PWs.1, 2 and panch witnesses. Absolutely, there is no

evidence to show that she is minor below the age of 18 years.

As per the evidence of PW.5-Teacher, the study certificate was

produced but not Birth Certificate. The mother of PW.1 who is

the complainant totally turned hostile. PW.1 also turned hostile

in the cross examination and the evidence of PW.4-doctor is

also not consistent she has stated that the hymen may be torn

due to cycling and swimming, therefore, the Trial Court wrongly

came to the conclusion that there was sexual assault on the

victim and further contended that as per the evidence of PW.1,

she married the accused in the Church. If at all she is a minor,

there is no question of performing the marriage in Church and

there is no investigation in this regard. There is lot of

discrepancies in the evidence. Therefore, prayed for allowing

the appeal.

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7.

Per contra, learned High Court Government Pleader

supported the judgment of the Trial Court and contended that

the victim is the minor. Her date of birth is 19.08.2003, date of

incident is 24.11.2007, she is aged about 14 years 3 months at

the time of incident and PW.2 is the foster mother who has

turned hostile. Though PW.1 supported but later turned hostile

as she has already married to some other person, therefore,

she was forced to turn hostile. The evidence of PWs.1, 4, 5 and

the Investigating Officer are corroborating with each other to

prove the guilt of the accused. Hence, prayed for dismissing

the appeal.

8.

Having heard the arguments and on perusal of the

records, the points that arise for my consideration are:

"1) Whether

the

prosecution

proves

beyond

reasonable doubt that the accused abducted

the minor girl from th