The appellate court set aside the conviction due to significant inconsistencies in the victim's testimony and insufficient evidence to sustain the trial court's findings.

(PER: HON'BLE MR. JUSTICE S RACHAIAH)

This Criminal Appeal has been filed by the appellant being aggrieved by the judgment of conviction and order on sentence dated 23.08.2021 in Special Case (POCSO) No.36/2018 on the file of the Additional Sessions Judge FTSC-I, POCSO, Vijayapura. Wherein, the Trial Court convicted the accused for the offence punishable under Section 363 , 344 of Indian Penal Code and Sections 5(1) and (6) of the POCSO Act .

2. The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience.

Factual matrix of the case:

3. It is the case of the prosecution that the complainant lodges a complaint stating that on 02.07.2018 at about 19.00 hours, he lodges a complaint stating that the family of the informant being a laborer had been to Islampur in the state of Maharashtra for their livelihood. On 11.06.2018, it is stated that the victim girl went out of the house in the morning around about 11.30 A.M., however, she did not return even till evening. The family including the wife of the informant and others started searching the whereabouts of the victim. However, they did not get any informations. Hence, he lodges a complaint on 02.07.2018.

4. The Respondent-Police have registered a case in Crime No.79/2018 as a missing complaint and took up for investigation.

5. The accused and the victim were traced at Paruli, State of Maharashtra on 31.07.2018. The victim was rescued and accused was taken to custody. The statement of the victim girl was recorded. As per the said statement. The facts of the case has been unfolded in such a way that, when she had gone out of the house to attend the nature call around 11.00 A.M, she was kidnapped by the accused in the jeep and took her to Pune. There she stayed for 4 days. Thereafter, she learnt that her father was searching her. Therefore, she was brought back to her native and her statement was recorded by the Magistrate under Section 164, Cr.P.C.

6. The respondent-Police have conducted the investigation and submitted the charge-sheet.

7. To prove the case of the prosecution the prosecution examined 20 witnesses and P.W.1 to P.W.20 and got marked 19 documents as Ex-P.1 to P.19. The Trial Court recorded the conviction for the offence punishable under Section stated supra.

8. Heard Sri.B.C.Jaka, learned counsel for the appellant and Sri.Gopal Krishna Yadav, learned High Court Government Pleader for respondent No.1 and Sri. Rajesh Doddamani for respondent No.2.

9. It is the submission of the learned counsel for the appellant that the impugned judgment of conviction and order on sentence passed by the Trial Court is against to facts and law. Therefore, the same is liable to be set aside.

10. The Trial Court while considering the evidence of the victim has failed to consider the contradictions in respect of statement of the victim. The victim in her statement made before the learned Magistrate under Section 164 of Cr.P.C stated that four persons took her to Pune and stayed there for four days and returned to the Devarahipparagi Police Station. However, in her evidence she improved her evidence and stated that she had been subjected to rape in Pune. The said improvement ought not to have been considered by the Trial Court while appreciating the evidence.

11. It is further submitted that the victim had been subjected to medical examination on 01.08.2018. There she had further improved her version stating that she voluntarily undergone sexual intercourse and stayed along with accused for a month at different places. The Doctor submitted her report as per Ex-P.16, opined that there is no recent sexual assault. Such being the fact, the Trial court ought not to have recorded the conviction. However, the T