The trial court's acquittal was upheld due to inconsistencies in the victim's testimony and lack of corroborating medical evidence.

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

Heard learned H.C.G.P Smt. Rashmi Patel, appearing for the appellant/State, learned counsel for respondent No.1/accused and Smt. Swasthishree Jain, learned Amicus Curiae appearing for respondent No.3.

The appeal against respondent No.2/complainant stood abated vide order of this Court dated 22.04.2024.

This appeal is filed against the order of acquittal dated 23.03.2018 passed by learned II Addl. District & Sessions Judge & Special Judge, Davanagere in SC No.27/2016 against respondent No.1/accused for the offence punishable under Section 4 of the POCSO Act .

2. The factual matrix of the case of the prosecution is that on 17.11.2015 at about 12.00 in the noon, when PW.5 victim went inside the house of PW.4 to get the clothes stitched and as the door of said house was latched, by removing the same, she went inside and at that time, the accused came from behind and caught hold of PW.5 victim, took her inside the hall and inspite of her resistance, subjected her to sexual act and hence, a complaint was lodged. Subsequently, the case was registered, matter was investigated and charge sheet came to be filed. The accused was arrested and produced before the Court and he was remanded to judicial custody and after investigation, the trial court took cognisance and framed charges against the accused. The accused did not plead guilty and claimed trial.

3. Hence, the prosecution in order to prove its case, examined 22 witnesses as PW.1 to PW.22 and got marked 18 documents as per Exs.P1 to 18 and M0s.1 to 4 and on closure of evidence of the prosecution, 313 statement of the accused was recorded and the accused did not choose to lead any defence evidence. The trial court having considered both oral and documentary evidence and having found inconsistencies in the evidence of the victim as well as in her 164 Cr.P.C. statement, which was discussed in paragraph No.29 and in paragraph No.31, extracted 164 statement and the relevant portion of the cross examination of PW.5 was extracted in paragraph No.32 and having considered the contradictory version found in the evidence of PW.5 in 164 statement comes to the conclusion that the evidence of PW.5 is not consistent and apart from that, took note of the evidence of the Doctor, who has been examined as PW.8, wherein she has categorically stated that on examination, she did not find any evidence of subjecting the victim for sexual act and that the hymen was intact and also did not find any injuries and hence, the trial Court considering the evidence on record, particularly the evidence of PW.1, PW.5 and also the medical evidence comes to the conclusion that the case of the prosecution does not inspire the confidence of the Court. The trial Court also considered the evidence of PW.6, who has recorded the visual recordings of the sexual act, but he also did not inform the same to the police and according to the prosecution, even the witnesses had gone to the place of incident and having found the accused running away from the place, they also did not inform the same and the complaint came to be filed on 22.11.2015 and there was a delay of 6 days in lodging the complaint. The trial Court also took note of the complaint filed by PW.1-complainant, wherein, it is stated by him that his son, who was also along with other witness Manja Naik witnessed the incident, he being the son, did not inform about the incident to his father PW.1 and only on enquiry, his daughter- victim girl has revealed the same and hence a complaint was registered. The trial court took note of the evidence of PW.1 wherein PW.1 had even gone to the extent of relying upon the evidence of PW.15, who is a Computer Operator, to whom the complainant ha