ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

The appellant-State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "Cr.P.C.") challenging the judgment of acquittal dated 15.03.2017 passed by the VI Additional District and Special Judge, Mysuru, (hereinafter for brevity referred to as the "trial Court") in Sessions Case No.343 of 2014 acquitting the accused-respondent No.1 of the offences punishable under Sections 366 and 376(2)(i)(n) of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "IPC"), under Section 9 of the Prohibition of Child Marriage Act, 2006 (hereinafter for brevity referred to as "Prohibition of Child Marriage Act") and under Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as "POCSO Act").

2. The brief facts of the case of the prosecution are that on 11.06.2014 at about 1:45 p.m., respondent No.1-accused kidnapped PW1-victim girl, aged about 15 years, by inducing her, from the house bearing No.163, 14^th Cross, 5^th Main, Chinnagirikoppalu, Jayanagar, Mysuru, with intent to marry her. Then, the accused took the victim to Lakshminarasimha Swamy Temple, situated near Srirangapatna, and married her by tying thali to her. Later, the accused took the victim in train to Tirupati and stayed in Ganesh Lodge at P.K. Layout, Tirupati, and committed penetrative sexual assault on her. Further, the accused brought back the victim to Mysuru, on 13.06.2014, and stayed in Ramabai Nagar, till 16.06.2014 evening, and committed aggravated penetrative sexual assault on her several times and thereby, committed the offences stated supra.

3. Based on the complaint of PW3, mother of the victim, a case was registered. After investigation, the Police filed the charge-sheet against the accused for the aforesaid offences. The accused was secured, he did not plead guilty and claimed to be tried. Hence, the prosecution got examined in all twelve witnesses as PW1 to PW12, got marked documents as Exs.P1 to P15. After closure of the evidence, the statement of the accused was recorded under Section 313 of Cr.P.C., however, he did not lead any defence evidence. The trial Court, having considered both oral and documentary evidence, by its impugned judgment, acquitted the accused of the aforesaid offences. Challenging the same, the appellant-State has preferred the present appeal.

4. Learned Additional State Public Prosecutor for the appellant-State vehemently contended that PW1-victim girl was a minor, aged about 15 years and 2 months, at the time of incident. She has fully supported the case of the prosecution. Further, PW6-Dr. Sangeetha, who issued Ex.P8-Medical Certificate, clearly stated that there is evidence of vaginal penetration and the victim is aged below 17 years as per the forensic report. In such circumstances, the trial Court ought to have taken note of the fact that the victim, being minor, her consent would be of no relevance, if there was sexual intercourse between the victim and the accused. The said factum of sexual intercourse itself having been proved through the medical evidence, the trial Court ought to have convicted the accused for the charged offences. Hence, she prays to allow the appeal.

5. Per contra, the learned counsel for respondent No.1-accused vehemently contended that there is inconsistency in the evidence of the victim-PW1. The victim has not made any allegations against the accused regarding kidnap, marrying her, and sexually assaulting her. The victim has not stated anything in her statement recorded under Section 164 of Cr.P.C. before the Magistrate. Therefore, the oral testimony of PW1 cannot be believed. He further contended that the manner in which the victim has stated of having gone with the accused, it only indicates that it was consensual and therefore, the trial Court rightly acquitted the accused. Hence, he prays to