Karnataka High Court
Akash And Anr vs The State And Anr on 30 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2025:KHC-K:685
CRL.A No. 200184 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200184 OF 2024
(374(Cr.PC)/415(BNSS))
BETWEEN:
1. AKASH S/O RAJU RATHOD,
AGE ABOUT 20 YEARS, OCC: LABOURER,
R/O. JUNGALEE PEER THANDA,
TQ. CHINCHOLI, KALABURAGI-585306.
2. DILEEP S/O THAVARU,
AGE ABOUT 19 YEARS, OCC: LABOURER,
R/O. BHUYAR-K, NEMU THANDA,
TQ. CHINCHOLLI, KALABURAGI-585306.
...APPELLANTS
(BY SMT. ARUNA P. CHAVAN, ADVOCATE)
Digitally signed AND:
by SHIVAKUMAR
HIREMATH
Location: HIGH
1. THE STATE THROUGH
COURT OF CHITAGUPPA POLICE STATION,
KARNATAKA NOW REPRESENTED BY
ADDL. SPP, HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585102.
2. VICTIM REPRESENTED BY
SRI MANIK RATHOD,
S/O SHANKAR RATHOD, (FATHER OF THE VICTIM),
R/O. BHUYYAR (K), NEMU NAYAK TANDA,
TQ. CHINCHOLLI, DIST. KALABURAGI.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1
SRI SHARANAGOUDA PATIL, ADVOCATE FOR R2)
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NC: 2025:KHC-K:685
CRL.A No. 200184 of 2024
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED BY THE HON'BLE
II ADDITIONAL DISTRICT AND SESSIONS JUDGE BIDAR
SITTING AT BASAVAKALYAN IN CRIME NO. 145/2019 OF
CHITAGUPPA POLICE STATION IN SPL. (POCSO) 171/2020)
DTD. 12-03-2024 BY ALLOWING THIS APPEAL CONSEQUENTLY
ACQUIT THE APPELLANTS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366, 366(a), 376(4), 370(A). OF IPC AND U/S
4(2), 12 AND OF POCSO ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This appeal under Section 374(2) of Cr.P.C is filed by accused Nos.1 & 2 assailing the Judgment and order of conviction dated 12.03.2024 and order of sentence dated 13.03.2024 passed by the Court of II Additional District and Sessions Judge, Bidar, sitting at Basavakalyan, in Special Case (POCSO) No.171/2020.
2. Heard the learned counsel for the parties.
3. Accused Nos.1 & 2 and another were charge-sheeted by Circle Inspector of Chitaguppa Police Station for -3- NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 offences punishable under Sections 366, 366-A, 376(4), 370A of Indian Penal Code, (for short 'IPC') and Sections 4(2) and 12 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and Sections 8 & 10 of Prohibition of Child Marriage Act, 2006.
4. It is the case of the prosecution that on 12.12.2019 at about 02.30 p.m. at Katthalli Village, Chincholi Taluk, accused No.2 had introduced the victim girl to accused No.1 and had left her with him. Thereafter, accused No.1 took the victim girl to Hyderabad and they stayed there in a house for a period of about 2 days. It is alleged that when accused No.1 and the victim girl were staying in the house at Hyderabad, accused No.1 allegedly had sexual intercourse with the victim girl against her wishes and subsequently on 14.12.2019, he married the victim girl in the presence of C.W.14 and thereby committed the charge-sheeted offences.
5. The accused after appearing before the trial Court, claimed to be tried and therefore the prosecution in order -4- NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 to prove its charges against the accused, in all had examined 17 witnesses as P.W.1 to P.W.17 and got marked 26 documents as Ex.P.1 to Ex.P.26. No material objects were got marked on behalf of the prosecution. After the prosecution had closed its side of evidence, the statement of the accused under Section 313 of Cr.P.C., was recorded. However, no evidence was led on behalf of the defence, but two documents were got marked as Ex.D.1 and Ex.D.2 in support of the defence. The trial Court after hearing the arguments addressed on both sides vide Judgment and order dated 12.03.2024, convicted the accused Nos.1 and 2 for the offences punishable under Sections 366, 366A, 376(4), 370A of IPC and Section 4(2) and 12 of POCSO Act, 2012 and acquitted them for the offences punishable under the provisions of Prohibition of Child Marriage Act. Thereafter, by order dated 13.03.2024, the trial Court has sentenced the accused No.1 to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs.5,000/- for the offence punishable under Section 376(2)(n) of IPC and in -5- NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 default to undergo simple imprisonment for a period of one month. The accused Nos.1 and 2 were also sentenced to undergo rigorous imprisonment for a period of 03 years and pay fine of Rs.2,000/- each for the offence punishable under Section 366 of IPC and in default to undergo simple imprisonment for a period of one month. For the offence punishable under Section 366A of IPC, accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for a period of three years and pay fine of Rs.2,000/- each and in default to undergo simple imprisonment for a period of one month. For the offence punishable under Section 370A(2) of IPC, accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for a period of three years and pay fine of Rs.2,000/- each and in default to undergo simple imprisonment for a period of one month. Being aggrieved by the impugned Judgment of conviction and order of sentence passed by the trial Court, the accused Nos.1 and 2 are before this Court in this appeal. -6-
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6. Learned counsel for the appellants submits that, the trial Court has recorded a finding that, the prosecution has failed to prove the age of the victim-girl and therefore, the accused persons cannot be convicted for the offences punishable under the provisions of POCSO Act. In spite of such a finding, the trial Court has convicted the appellant even for the offence punishable under the provisions of POCSO Act. The material on record would go to show that, the accused No.1 and the victim-girl were in love and the victim-girl had voluntarily accompanied the accused No.1 and had stayed with him at Hyderabad for a period of two days and they had returned back voluntarily after coming to know that, a criminal case was registered. Therefore, it appears that, the relationship between the parties was consensual and the conviction even for the offence punishable under the Indian Penal Code is bad in law. Accordingly, she prays to allow the petition.
7. Per contra, learned High Court Government Pleader has opposed the prayer made in the appeal. She submits -7- NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 that, the trial Court having appreciated the oral and documentary evidence available on record, has rightly convicted the accused Nos.1 and 2 for the offences punishable under provisions of Indian Penal Code. Even if the prosecution has not proved the age of the victim-girl in the manner known to law, the offences punishable under the Indian Penal Code gets attracted against the accused persons. Accordingly, she prays to dismiss the appeal.
8. The charge-sheet in the present case has been filed against three persons for the offences punishable under Sections 366, 366A, 376(3), 370(4), 109 of IPC and Section 4(2) and 12 of POCSO Act and Sections 8 and 10 of Prohibition of Child Marriage Act. The trial Court has convicted the accused Nos.1 and 2 for the aforesaid offences punishable under the provisions of Indian Penal Code and POCSO Act, and has acquitted them for the offences punishable under the provisions of Prohibition of Child Marriage Act. For the purpose of convicting an accused under the provisions of POCSO Act, the -8- NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 prosecution is primarily required to prove that, the victim- girl was a minor as on the date of the alleged incident. In the case on hand, the prosecution has failed to prove the age of the victim-girl by producing necessary material before the trial Court as provided under the law. The law in this regard has been reiterated by Hon'ble Supreme Court in the case of P.Yuvaprakash vs. State represented by Inspector of Police1 and in paragraph 13 it is observed as follows:
"13.It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
"(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the 1 2023 SCC Online SC 846 -9- NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".
9. In the case on hand, none of the aforesaid three modes for proving the age of the victim-girl has been complied by the prosecution and on the other hand, the prosecution has only produced certified copy of the Adhaar Card of the victim-girl which is marked as Ex.P.24. The trial Court has framed five points that arises for determination in the present case and point No.4 reads as follows:
"4. Whether the prosecution proves beyond all reasonable doubts that, accused No.1, knowing that CW-2 victim is minor girl married with her and thereby committed offence punishable under Section 8 and 10 of Child Marriage Prevention Act?"
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10. In paragraph No.37 of the Judgment, the trial Court has observed that, the prosecution has failed to produce any document pertaining to the age of the victim-girl before the Court either during the trial or at the time of filing the charge-sheet and also the prosecution has not made any efforts in this regard, therefore, the prosecution has failed to comply Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 and therefore, the accused Nos.1 to 3 are held entitled for acquittal under the aforesaid alleged charges. In paragraph No.39 of its order, the trial Court has observed as follows:
"39. xxxxxxxxxxx But the prosecution has failed to connect the crime accused No.1 and 2 for the alleged charge under Section 4(2), 12 of POCSO Act and Section 8, 10 of Prevention of Child Marriage Act, and also prosecution has failed to prove the charge against the accused No.3 for the offence under Section 366, 366(a), 370A, 376(2)(N) of IPC., and Section 4(2), 12 of POCSO Act and Section 8, 10 of Prevention of Child Marriage Act. The Ex.P24 Certified copy of Adhaar card of Victim girl is not valid and substantive peace of evidence to show the actual age of victim below 18 years.
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11. In spite of such a finding recorded by the trial Court, without application of mind, the trial Court has proceeded to convict the accused Nos.1 and 2 for the offence punishable under Sections 366, 366A, 376(4), 370A of IPC and also for the offence punishable under Section 4(2) and 12 of POCSO Act. The trial Court having recorded a finding that the prosecution has failed to prove the age of the victim in the manner known to law, could not have been convicted the accused Nos.1 and 2 for the offences punishable under the provisions of POCSO Act. This approach of the trial Court is totally illegal and therefore, the order of conviction passed against the accused Nos.1 and 2 for the offences punishable under the provisions of POCSO Act, cannot be sustained.
12. The victim-girl has been examined in the present case as P.W.3. P.W.2 who is the father of the victim-girl, is the complainant in the present case. P.W.2 has stated that, he along with his family members and his minor daughter who is the victim in the present case, had gone
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NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 to attend a festival in a Temple in their village on 12.12.2019 and at about 2.30 p.m., on the said date, he found that his minor daughter was missing. Efforts made to trace her had failed and therefore, a missing complaint was submitted by him before the police on 14.12.2019. Subsequently, he was summoned to the police station and he had gone to the police station along with his family members. In the police station, the accused No.1 and the victim-girl were present. On verification he learnt that, the accused No.2 had taken the victim-girl along with him and introduced her to accused No.1, who thereafter had taken her to Humnabad bus stand and from the said bus stand they traveled together to Hyderabad and stayed there in their relatives house and accused had sexual intercourse with the victim-girl in the said house and subsequently married her. From a reading of the deposition of P.W.2, it is evident that, only on the information received from his daughter, he came to know about the alleged act committed by the accused persons.
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13. The victim-girl has been examined as P.W.3. She has stated that, on 12.12.2019 she had met accused No.2, who introduced her to accused No.1. She and accused No.1 went in the motorbike of accused No.3 to Humnabad bus stand and from Humnabad bus stand they traveled to Hyderabad in a bus and accused No.1 took her to his relative's house at Hyderabad and they stayed there. She has alleged that, accused No.1 had sexual intercourse with her while she stayed with him in Hyderabad. On the next day, he had taken her to a Temple and they got married. Thereafter the accused No.1 took her to his Aunt's house at Mannaikheli village. A Police Constable, who came there, brought them to the police station and thereafter her parents were summoned.
14. The statement of the victim-girl under Section 164 of Cr.P.C., has been marked as Ex.D.1 in the present case. A perusal of the same would go to show that, there is no allegation against the accused No.1 about he committing sexual assault on the victim-girl and it is for the first time,
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NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 such an allegation was made by her during the course of her deposition. In her statement under Section 164 of Cr.P.C., she has stated that, for a period of about two days, she had roamed with accused No.1 at Hyderabad and when she made a telephone call to her parents, she came to know about the criminal case registered by them. She has stated that, her parents refused to withdraw the criminal case and therefore, she and accused No.1 returned to Charanalli village. She has specifically stated that, accused No.1 had not committed any wrong.
15. The medical examination report of the victim-girl is produced at Ex.P.20. In the said report, though it is stated that, the hymen was not intact, but it is also stated that, there were no injuries found on the external genitals or any other part of the body of the victim-girl. P.W.12 - Dr.Pallavi has issued Ex.P.20. This witness has stated that, no semen was found on the clothes of the victim-girl and the victim-girl had no injuries on her body. She has also stated that, victim had not suffered injuries on her private
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NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 part, but her hymen was ruptured. During the course of cross examination this witness has stated that she was not in a position to say the reason for tear of victim's hymen. She has admitted during her cross-examination that, she did not find any signs of sexual assault on the victim-girl when she had medically examined the victim-girl.
16. The prosecution in the present case has utterly failed to prove that, the victim-girl was a minor as on the date of the alleged incident. The medical records of the victim-girl and the deposition of the Doctor who had medically examined victim and issued medical report at Ex.P.20 also do not prima-facie suggest of any forcible sexual assault on the victim-girl. The victim-girl has not made any allegation against the accused No.1 about he committing forcible sexual assault on her in her statement at Ex.D.1, recorded under Section 164 of Cr.P.C. The material on record, more so, the evidence of P.W.2 and P.W.3 would go to show that, the victim-girl had accompanied the accused No.1 in a private transport from Humnabad to
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NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 Hyderabad and they had stayed together in the Aunt's house of accused No.1 for a period of two days. The victim-girl in her statement under Section 164 of Cr.P.C., has stated that, she had roamed with accused No.1 at Hyderabad during the said two days and she has also stated that, thereafter, they had returned to the Aunt's house of accused No.1 at Mannaikheli village. From the overall appreciation of the evidence on record, it appears that, the victim-girl had voluntarily accompanied the accused No.1 from her village, initially to Humnabad and thereafter to Hyderabad and had stayed with him for a period of two days. The allegation as against the accused No.2 is that, he had taken the victim-girl on 12.12.2019 along with him and had introduced her to accused No.1 and thereafter left her with accused No.1. Since the prosecution has failed to prove that the victim-girl was a minor, the alleged offence under Section 366A of IPC, cannot be invoked in the present case. Since the material on record would also go to show that, the victim-girl had voluntarily accompanied the accused persons and she had
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NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 voluntarily traveled along with accused No.1 from her village to Humnabad and thereafter to Hyderabad in a private transport, it appears that, the relationship between the parties was consensual and therefore, the trial Court had erred in convicting the accused Nos.1 and 2 even for the offence punishable under the provisions of the Indian Penal Code. Since the trial Court has acquitted the accused persons for the offences punishable under the provisions of Prohibition of Child Marriage Act, there is no justification for convicting the accused for the offences punishable under Section 366 of IPC. The offence punishable under Section 366A of IPC gets attracted only if the victim is a minor girl and in the case on hand, the finding recorded by the trial Court is that, the prosecution has failed to prove the age of the victim-girl. There is no allegation in the charge-sheet that, the victim-girl was trafficked or that she was exploited for being trafficked and therefore, the trial Court was also not justified in convicting the accused persons for the offence punishable under Section 370A of IPC. The trial Court without properly applying its mind to
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NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 the facts of the case, in the absence of material evidence containing the necessary ingredients which are prima-facie required to invoke the charge-sheeted offences, has erred in convicting the accused Nos.1 and 2 for the offence punishable under Sections 366, 366A, 376(4), 370A of IPC and Section 4(2) and 12 of the POCSO Act. Under the circumstances, I am of the opinion that the Judgment and order of conviction and order of sentence passed by the trial Court cannot be sustained. Accordingly, the following order:
ORDER
(i) The Judgment and order of conviction dated 12.03.2024 and order of sentence dated 13.03.2024 passed by the court of II Additional District and Sessions Judge, Bidar, in Spl. Case No.171/2020, is set aside.
(ii) Accused Nos.1 and 2 are acquitted of the offences punishable under Sections 366,
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NC: 2025:KHC-K:685 CRL.A No. 200184 of 2024 366A, 376(4), 370A of IPC and Sections 4(2) and 12 of POCSO Act.
(iii) Consequently, the bail bonds of the accused Nos.1 and 2 if any, shall stands cancelled and the fine amount deposited by them shall be refunded.
Sd/-
(S.VISHWAJITH SHETTY) JUDGE DHA,SVH List No.: 1 Sl No.: 41 CT:PK