J U D G M E N T

1. Crl.A. No. 771/202 0 is filed by accused No.1 and Crl.A. No. 760/2020 is filed by accused No. 2. Both the appeals are filed challenging the judgment of conviction and order on sentence dated 02.07.2020 passed in Spl.C. No. 70/2017 by the Additional District and Sessions Judge, FTSC-I, Udupi.

2. Appellants - accused Nos. 1 and 2 have been convicted for offence under Section 376-D of IPC and Section 6 read with Section 5(g) of POCSO Act and sentenced to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs.30,000/- each.

3. Factual matrix of the prosecution case is that both accused Nos.1 and 2, on 29.06.2015 at about 10.00 am at Shivalli village Udupi taluk, took the victim girl aged about 17 years, daughter of P.W.1, on their motorcycle to watch a cinema in Ashirvad Theater, Santhekatte. After watching the cinema, they took her to Arbi falls situated at Dasharatha Nagar, Manipal and forcibly made her to drink beer and smoke cigarette. Thereafter, at about 04.00 pm they took her to Big Boos Lodge situated at Herga village, stayed in room No. 204 of said lodge and committed forcible sexual intercourse on her one after another against her wish and consent and committed offence alleged against them.

4. The trial Court framed charges for offence under Section 376-D of IPC and Sections 5(g), 5(l) read with Section 6 of the POCSO Act. The prosecution, in order to establish the charge, has examined P.W.1 to P.W.20 and got marked Ex.P.1 to Ex.P.48 and M.O. 1 to M.O. 15. Statement of the accused Nos. 1 and 2 came to be recorded under Section 313 of Cr.P.C. The accused persons did not lead any defence evidence. The trial Court after hearing arguments formulated points for consideration and after appreciating the evidence on record convicted the appellants as noted supra by the impugned judgment which is challenged in this appeal.

5. Heard learned counsel for appellants – accused in both the appeals and learned HCGP for the respondent – State.

6. Learned counsel for accused No. 1 who is the appellant in Crl.A. No. 770/2020 would contend that P.W.1 – mother of the victim girl who is the complainant and P.W.2 – victim girl have not supported the case of the prosecution and they have been treated as hostile. P.W.3 – cousin brother of P.W.1, P.W.5 – panch to mahazars – Ex.P.27 and Ex.P.28 has not supported the case of the prosecution. P.W.6 who is the panch to the mahazars - Ex.P.27 and Ex.P.28 has also not supported the case of the prosecution. Even though there is no corroborative evidence, the trial Court, placing reliance on the DNA report – Ex.P.41, has erroneously convicted appellants - accused Nos. 1 and 2. Even the victim girl has stated that she stated before the Magistrate while recording her statement under Section 164 of Cr.P.C. (Ex.P.17) as told to her by the Police. He contends that in the absence of corroborative evidence of P.W.1 and P.W.2, only on the basis of DNA report, the appellants - accused Nos. 1 and 2 cannot be convicted. On that point he placed reliance on the following decisions:

i. Sri.Paramesha Vs. State of Karnataka, Crl.A.

No. 1959/2019 decided on 11.12.2020 ii. Ismail Vs. State of Karnataka, Crl. A.

1445/2022, decided on 19.01.2024 iii. State of Karnataka Vs. XXX, Crl.A. No.

100504/2021 decided on 05.06.2024 On these grounds he prayed for allowing the appeal and acquitting appellant - accused No. 1.

7. Learned counsel for accused No.2 who is the appellant in Crl.A. No. 776/2020 reiterating the grounds urged by learned counsel for appellant - accused No. 1 contended that there are no seminal stains belonging to this appellant - accused No. 2 at the alleged spot of incident. This appellant - accused No. 2 is a friend of accused No. 1 and therefore he has been falsely implicated in this case. There is no material evidence against accused No. 2 to convict him for the offence for which he has been convicted. With this he prayed to allow the appeal and acquit accused No. 2.

8. Learne