Karnataka High Court
The State Of Karnataka vs Ningappa S/O Mallappa Dhanameti And Ors on 1 August, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 200145 of 2015
C/W CRL.A No. 200034 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
CRIMINAL APPEAL NO. 200145 OF 2015
C/W
CRIMINAL APPEAL NO. 200034 OF 2016
IN CRL.A. No.200145/2015
BETWEEN:
1. HANUMANTH
S/O BHEEMAPPA SINGOTI
AGED ABOUT 58 YEARS
OCC: AGRICULTURE
Digitally signed
by
BASALINGAPPA 2. AKKANAGAMMA
SHIVARAJ D/O HANUMANTH
DHUTTARGAON
AGED ABOUT 18 YEARS,
Location: HIGH
COURT OF OCC: COOLIE
KARNATAKA
BOTH ARE R/O BALCHED VILLAGE
TQ. & DIST: YADGIRI.
...APPELLANTS
(BY SRI. B C JAKA, ADVOCATE)
AND:
1. NINGAPPA
S/O MALLAPPA DHANAMETI
AGED ABOUT 20 YEARS, OCC: AGRI
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CRL.A No. 200145 of 2015
C/W CRL.A No. 200034 of 2016
HC-KAR
2. MALLAPPA
S/O MALLAPPA DHANAMETI
AGED ABOUT 61 YEARS, OCC: AGRI
3. AKKAMMA
W/O MALLAPPA DHANAMETI
AGED ABOUT 56 YEARS, OCC: AGRI
4. HAYYALAPPA
S/O MALLAPPA DHANAMETI
AGED ABOUT 39 YEARS, OCC: AGRI
5. MALLAPPA
S/O MALLAPPA DHANAMETI
AGED ABOUT 26 YEARS, OCC: AGRI
6. NAGAPPA
S/O MALLAPPA DHANAMETI
AGED ABOUT 37 YEARS, OCC: AGRI,
ALL R-1 TO R-6 ARE R/O BALCHED VILLAGE
TQ. & DIST: YADGIRI-585201.
7. STATE OF KARNATAKA
REPRESENTED BY ADDL. PUBLIC PROSECUTOR
HIRH COURT OF KARNATAKA
BENCH AT KALABURAGI
(SAIDAPUR POLICE, YADGIRI DIST.)
...RESPONDENTS
(BY SRI. S S ASPALLI, ADV. FOR R1 TO R6;
SRI. SIDDALING P.PATIL, ADDL. SPP FOR R7)
THIS CRL.A. IS FILED U/S. 372 OF CR.P.C, PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT AND ORDER, DATED
14.09.2015, PASSED IN SPECIAL CASE (POSCO) No.15/2014,
BY THE SESSIONS JUDGE/SPECIAL JUDGE YUDGIRI, BY
ALLOWING THIS APPEAL CONSEQUENTLY CONVICT THE
RESPONDENTS/ ACCUSED OF THE CHARGES LEVIED AGAINST
THEM, FOR OFFENCES PUNISHABLE 366-A, 376 OF IPC, UNDER
SEC.4 OF THE POSCO ACT AND U/SEC. 3(2), (v) OF THE SC/ST
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CRL.A No. 200145 of 2015
C/W CRL.A No. 200034 of 2016
HC-KAR
(P.A.) ACT, AS AGAINST ACCUSED No.1 AND FOR THE
OFFENCES PUNISHABLE U/SEC.504 OF IPC AND U/SEC.
3(2),(v) OF THE SC/ST (P.A.) ACT AS AGAINST ACCUSED No.2
TO 6.
IN CRL.A No.200034/2016:
BETWEEN:
THE STATE OF KARNATAKA
THROUGH SAIDAPUR P.S.,
RPTED. BY ITS ADDL. STATE PUBLIC PROSECUTOR.
...APPELLANT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
AND:
1. NINGAPPA
S/O MALLAPPA DHANAMETI
AGE 21 YEARS, OCC:AGRICULTURE,
R/O BALKHED, TQ. YADGIRI.
2. MALLAPPA
S/O MALLAPPA DHANAMETI
AGE 62 YEARS, OCC:AGRICULTURE,
R/O BALKHED, TQ. YADGIRI.
3. AKKAMMA
W/O MALLAPPA DHANAMETI
AGE 57 YEARS, OCC:HOUSEHOLD & AGRI,
R/O BALKHED, TQ. YADGIRI.
4. HAYYALAPPA
S/O MALLAPPA DHANAMETI
AGE 40 YEARS, OCC:AGRICULTURE,
R/O BALKHED, TQ. YADGIRI.
5. MALLAPPA
S/O MALLAPPA DHANAMETI
AGE 27 YEARS, OCC:AGRICULTURE,
R/O BALKHED, TQ. YADGIRI.
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CRL.A No. 200145 of 2015
C/W CRL.A No. 200034 of 2016
HC-KAR
6. NAGAPPA
S/O MALLAPPA DHANAMETI
AGE 38 YEARS, OCC:AGRICULTURE,
R/O BALKHED, TQ. YADGIRI.
7. SHIVARAJ
S/O MALLAPPA DHANAMETI
(JUVENILE IN CONFLICT WITH LAW)
...RESPONDENTS
(BY SRI S.S. ASPALLI, ADV. FOR R1 TO R6)
THIS CRL.A. IS FILED U/S. 378(1) & (b) OF CR.P.C
PRAYING TO a) GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 14.09.2015 PASSED BY THE
SESSION JUDGE AND SPECIAL JUDGE, YADGIRI, IN SPECIAL
CASE NO.15/2014. b) SET ASIDE THE JUDGMENT AND ORDER
DATED 14.09.2015 PASSED BY THE SESSIONS JUDGE AND
SPECIAL JUDGE, YADGIRI, IN SPECIAL CASE NO.15/2014.
c) CONVICT AND SENTENCE THE ACCUSED/RESPONDENTS
NO.1 FOR THE OFFENCES P/U/S. 366-A, 376 OF IPC AND
UNDER SEC. 4 OF THE POCSO ACT, 2012 AND UNDER SEC.
3(2)(V) OF SC/ST (P.A.) ACT, 1989 AND CONVICT
RESPONDENT/ACCUSED NOS.2 TO 6 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 504 OF IPC AND UNDER
SECTION 3(1)(X) OF SC/ST (P.A.)ACT, 1989, IN THE INTEREST
OF JUSTICE AND EQUITY.
THESE APPEALS ARE COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
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CRL.A No. 200145 of 2015
C/W CRL.A No. 200034 of 2016
HC-KAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH) Heard the appellant's counsel and the counsel appearing for the accused appearing in Crl.A No.200145/2015 and also the Additional SPP and the counsel appearing for the accused in Crl.A.No.200034/2016.
2. Both these appeals are by the State as well as the complainant against the acquittal for the offence punishable under Sections 366-A, 376, 504 read with Section 149 of IPC and section 3(1)(x), 3(1)(xii) and 3(2)(v) of SC/ST (Prevention of Atrocities Act), 1989 (for short 'the SC/ST (P.A) Act') and so also for the offence punishable under Section 4 of the POCSO Act, 2012.
3. The factual matrix of the case of prosecution before the Trial Court in Spl. Case No.15/2014 that, on 19.12.2013 at about 2.00 PM, when PW2 was working in her land situated within the limits of village Balached and -6- NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR at that time, the accused came and informed that he has been loving her and ready to marry her and asked her to accompany him to go somewhere else to get married, for which PW2 has refused. In spite of refusal made by PW2, the accused No.1 induced her and forcibly took her by the side of the bush situated in the land of the PW2 to and made her to fell down and forcibly committed sexual intercourse against her will. It is also the case of the prosecution that, since there were no persons present in the adjoining lands, nobody came to the spot inspite of shouting and screaming made by her. Thereafter, the accused took her to Saidapur Village by giving direction not to make any shout and scream and in the event she made any hue and cry or scream, he will finish her. Therefore, PW2 kept quiet and he took her to the Bengaluru and made her to stay in a Hut at Dasarahalli and also subjected her to sexual act forcefully against her will at Bengaluru also. On 24.12.2013 at about 2.00 p.m., the brother of the accused No.1 by name Nagappa i.e., -7- NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR accused No.6 called him over phone and asked accused No.1 as to why he had taken PW2 to Bengaluru and asked accused No.1 to take her to yadgiri and leave her. Therefore on the same day, accused No.1 left Bengaluru along with victim girl and reached Yadigir on 25.12.2013 through a train. Thereafter the accused No.1 brought the victim girl to Sanna Sambra village and asked her to go to her house. Therefore, PW2 came over to Balched village in an auto and informed the act of forcible sexual intercourse committed by the accused No.1 against her will before her parents and uncle. The parents and uncle of the PW2 have gone to the house of accused No.1 and insisted the members of the family of accused No.1 to perform the marriage of the PW2 - victim girl with accused No.1, saying that accused No.1 by inducing PW2 to marry her had a forcible sexual intercourse with her and took her to Bengaluru for which the members of the family of accused No.1 took little time to settle the matter. Hence, PW2, her parents and uncle returned back to their house. -8-
NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR But subsequently, the parents of accused No.1 have not made any efforts to enquire with accused No.1 and also not made any efforts to perform the marriage of accused No.1 with PW2. Therefore on 10.01.2014 at 6.30 p.m., the PW1 i.e., father of PW2 along with PW2, approached the P.S.I of Saidapur Police Station and filed the oral complaint. On the basis of the said oral complaint - Ex.P1, PW13 - Basavaraj Avathi, PSI of Saidapur Police Station registered a case in crime No.9/2014 against the accused Nos.1 to 7 for the charged offences. In the pursuance of registration of the case, investigation was conducted and statement of victim - PW2 recorded under Section 164 of Cr.Pc. before the Magistrate and after completion of investigation filed chargesheet. The accused persons were secured before the Court and they did not felt guilty and faced the trail and hence, the Trial Court recorded the evidence of prosecution witnesses i.e., PW1 to PW14 and prosecution also relied upon the documents marked by the prosecution at Exs.P1 to P23. The defence -9- NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR have lead any evidence, however subjected to 313 statement before the Trial Court.
4. The Trial Court having considered the material available on record framed the points for consideration 1 to 6 and answered the same in 'negative' and acquitted the accused persons. Being aggrieved by the same, these two appeals are filed by the complainant as well as State.
5. The complainant in Crl.A No.200145/2015 contended that, inspite of the evidence of complainant - PW1, the victim girl - PW 2 and uncle of PW2, consistently deposed that the accused subjected the victim girl who is aged about 17 years for sexual act against her will, but the Trial Court not considered the evidence properly and the same is not in a proper perspective and the incident was taken place in the village as well as in Bengaluru. It is contented that accused knowing fully well that the victim girl belongs to a scheduled caste has committed forcible sexual intercourse against her will and abused the
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR complainant and victim girl in filthy language as well as taking their cast name in the presence of Public. Even though sufficient material available before the Trial Court particularly witnesses PW1 to PW3, as well as PW4 spoken about subjecting the victim as well as other family members and also subjecting them for humiliation in the general public by taking caste name, committed an error in acquitting the accused and hence, it requires interference.
6. The state in the Crl.A.No.200034/2016 contended that the evidence of PW1 to PW3 is consistent and since the victim girl was a minor at the time of subjecting her for sexual act and there is a presumption against the accused under Section 29 of POCSO Act, 2012 and also in her further 164 statement which is marked as Ex.P2, before the judicial magistrate, the victim girl clearly stated that accused has taken her by force against her will and subjected her for sexual act and Trial Court lost sight of this fact and wrongly come to the conclusion that the
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR evidence is not credible. The counsel also contended that PW8 - Doctor who has examined the victim girl has also supported the case of prosecution and as per Ex.P27 and the school certificate of the victim girl shows that date of birth is mentioned as 10.06.1996 and date of Commission of offence as on 19.12.2013 which clearly shows that victim girl was a minor at the time of commission of offence. The counsel also brought to notice of this Court that PW4 - Sharanappa who was also supported the case of prosecution regarding PW1 to PW3, when they went near the house of the accused requesting them to perform the marriage, but they abused them in a filthy language by taking their caste name and the Trial Court committed an error in appreciating the said evidence and not considered the evidence in a proper perspective.
7. The counsel appearing for the appellant also brought to the notice of this Court that Ex.P1 is very clear with regard to the allegations made in the complaint that too by the father of the victim girl and counsel contended
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR that Ex.P21 - Birth Certificate is also very clear that she was a minor that apart from the evidence of the doctor also supports that hymen was not intact and she was subjected to sexual act, though there is no evidence of recent sexual act. But evidence of PW8 is very clear that she was subjected to sexual act and these are the evidence has not been considered by the Trial Court.
8. The counsel appearing for the State also vehemently contended that, the delay in lodging the complaint only on account that, when the victim and their family members went to the house of accused, the accused and the family members of accused have promised that they are going to perform the marriage with the victim girl. On that assurance, the complaint was not given but ultimately they didn't perform the marriage and hence, finally complaint was given. The counsel would also vehemently contended that PW12 also spoken with regard to Ex.P21 and Ex.P22 and also the evidence of PW4
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR clearly attracts the Section 3(1)(x) as well as Section 3(2)(v) of SC/ST (P.A) Act.
9. The counsel appearing for the complainant also reiterates the arguments of State Public Prosecutor and contended that the evidence available on record though consistent, but given benefit of doubt and the same requires interference.
10. Per contra, the counsel appearing for the accused would vehemently contended that the very complaint doesn't disclose anything about the victim was subjected to sexual act in the land and the same is an improvement in the evidence of PW2. The counsel also vehemently contended that, in Ex.P1 - Complaint which was given by the father, nowhere stated anything about subjecting her for sexual act, except making an allegation that she was subjected to sexual act at Bengaluru and the counsel would further contended that, PW2 before the Court and also before the Magistrate, while making the
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR 164 statement, not spoken anything about subjecting her for sexual act either her at the land or at Bengaluru and hence, the Trial Court rightly appreciated the material available on record. The counsel also vehemently contended that, when the Court comes to the conclusion that the evidence of prosecution witnesses particularly evidences of PW1 to PW3, not inspired the confidence of the Court and rightly appreciated the same and comes to the conclusion that, it is not a case for convicting the accused. The counsel also brought to notice of this Court regarding the details of the order passed by the Trial Court and contended that in paragraph Nos.20, 21 and 22, the same has been discussed in detail considering Ex.P1, the evidence of PW2 and also the evidence of PW1 and PW3 and nothing was found in the 164 statement made before the Magistrate i.e., discussed in paragraph No.21 of the judgment and so also in paragraph No.22, discussed with regard to the statement at Ex.P2 which has been recorded by the learned JMFC
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR Court, Yadgiri and inspite of refusal made by PW2, the accused stuffed the cloth in her mouth and lifted her and took her to Bengaluru and after going to Bengaluru, they were living happily and the same was also taken note of and PW2 categorically deposed that both of them are living at Bengaluru happily and this is the observation also made by the Trial Court, while considering the material on record and so also taken note of Paragraph No.25 with regard to the evidence of PW3 is silent with regard to the fact of commission of the alleged forcible sexual intercourse committed by accused No.1 as against PW2 in the land and so also in paragraph No.26 discussed the entire story of the prosecution is based upon the statement of victim girl and nothing is found in the evidence of PW2 regarding subjecting her for sexual act and only in the evidence made on the improvement, the same is also discussed in paragraph Nos. 27 to 31 and so also in Paragraph No.32 of the judgment. Even in Paragraph No.33, discussed with regard to the evidence of PW3 and so also PW4 in
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR paragraph No.34 and the Court come to the conclusion that, not found any material for each of the offences which have been invoked against the accused and the ingredients of each of the offence which is taken note of and the same is discussed in detail and considering all, reasoned order has been passed and hence, it doesn't require any interference.
11. Having heard the appellant's counsel and also the counsel appearing for the respondents/accused and also on re-evaluation of material available on record and also the grounds urged in the appeal as well as respective submissions, the point that would arise for the consideration of this Court is:
i) Whether the Trial Court committed an error in acquitting the accused persons for the offences invoked against the accused persons? and whether it requires interference of this Court?
ii) What order ?
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12. Having heard the respective counsel and also considering brief factual matrix of the case of the prosecution and also the defence which has been taken, it is a specific evidence of PW2 that accused subjected her for sexual act and also taken her to Bengaluru and also subjected her for sexual act at Bengaluru also. No doubt on perusal of the complaint in Ex.P1 as contended by the counsel appearing for the accused, nothing is disclosed in Ex.P1 subjecting her for sexual act in the land of the complainant, but specifically stated that she was subjected to sexual act at Bengaluru. It is also important to note that the Trial Court also taken note of Section 164 of Cr.Pc. statement made before the learned Magistrate by PW2, when the victim was produced before him and the victim wherein not stated anything about subjecting her for sexual act before the learned Magistrate while giving her statement, but she has deposed that she was subjected to sexual act in the land of the complainant and also at Bengaluru while giving her evidence before the
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR Court. It is also stated that a phone call was received by the family of the accused and abused her and brought her back and sent her to her parental house and then she revealed the fact that accused only took her to Bengaluru and also the earlier incident of subjecting her for sexual act, to her parents. It is also the evidence of PW1 and PW3 that, they went to the house of accused and also requested the family members of the accused to perform the marriage of PW2 with accused No.1. The family members have agreed to perform the marriage, but after some time they turned hostile to their promise. With regard to this aspects is concerned, the Trial Court has taken note of the same and also made an observation in Paragraph No.33 that, PW3 categorically deposed that after coming to know about the forcible sexual intercourse committed by accused No.1 against PW2, he himself and his brother had been to the house of accused persons with a request to perform the marriage of PW2 with accused No.1, but the accused persons have abused in a filthy
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR language by taking their caste name and the same was also discussed, since PW2 was also spoken about the same and also PW1 and PW3. The Trial Court after considering all these aspects, come to the conclusion that, the evidence of PW3 only shows that PW1 and PW2 have approached the accused persons for once that means the visit of the family members of the victim and it was taken note of by the Trial Court. However, while appreciating the evidence of PW4 in paragraph No.34 with regard to abuse is concern, the family members of the accused abused the victim and the victim's family in a filthy language as well as invoking the caste name and taken note of the admission on the part of PW4 that on the date of the incident, PW4, CW8 - Mallappa and CW9 - Neejappa are standing about 40 feet away from the Math and they were not in a position to hear the exchange of words taken place in front of the house of the accused persons. By that time, when they had gone to the house of the accused persons, all the talks were already over and PW4
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR evidence cannot be considered as an eye witness to the incident and he has to explain as to how he came to know about the exchange of words taken place between accused and PW1 to PW3 and CW6, but no explanation is forthcoming and hence, in view of this admission, comes to the conclusion that, he cannot be treated as an eye witness. However evidence of PW3 was taken note of and apart from that, PW2 also speaks about the same. But the Trial Court while considering the material on record with regard to the offence under Section 3(2)(v) and Section 3(2)(x) of SC/St (P.A) Act and also in respect of offence under Section 504 of IPC, though discussed the evidence of these witnesses, not given any findings to the effect whether Sections 3(2)(v) and Sections 3(2)(x) of SC/ST of (P.A) Act attracts or not and even with regard to offence punishable under Section 504 of IPC, the Trial Court has not discussed with regard to the credibility of the evidence of PW2 with regard to subjecting her for sexual act.
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13. Having perused this reasoning given by the Trial Court and also considering Section 354 of Cr.p.c, it is very clear that, when the point for consideration was framed by the Trial Court, the Trial Court ought to have answered each of the points for consideration, while considering the material on record. It is also important to note that, the incident had taken place on 19.12.2013 and complaint was given on 10.01.2014 and there was a delay of 20 Days in lodging the complaint, but reason for delay was explained that the accused have promised to perform the marriage but they did not perform the marriage and the same is not fatal to the case of prosecution, in view of the explanation given to the delay. However, with regard to the offence under Section 366-A and Section 376 of IPC is concerned, there is contradictions in the evidence of witnesses and also in order to invoke Section 366-A of IPC, except the fact that cloth was stuffed in her mouth, the fact that she was accompanied with the accused to the Bengaluru and both of them travelled in the train doesn't
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR attracts under the said Section and the same also to be taken note of. No doubt it is the case of prosecution that, she was a minor aged about 17 years and also as per Section 2(d) of the POCSO Act, if the child is below the age of eighteen years, the same would attracts and the school certificate is produced with regard to the age of the victim before the Court which shows that the victim was aged below eighteen years. But having considered the material on record, particularly Ex.P1, nothing is stated by the father of the victim girl for subjecting her for sexual act in the land but instead speaks about subjecting her for sexual act at Bengaluru and the material also discloses that the Investigation Officer did not conduct any spot inspection at Bengaluru and in terms of Ex.P1, the allegation only discloses that she was subjected to sexual act at Bengaluru, but no specific material or Panchanama or spot panchnama was conducted with regard to the committing of the offence at Bengaluru and also even not recorded statement of any of the witnesses who have
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR witnessed both of them seen at Bengaluru, but the very evidence of PW2-victim girl is specific that accused No.1 had taken her to Bengaluru promising to marry her and in order to substantiate the allegation that she was subjected to sexual act in the land, as PW2 before the learned Magistrate not spoken anything about the same while recording her statement under Section 164 and hence, benefit of doubt extended in favour of the accused and we do not find any error on the part of the Trial Court in coming to such a conclusion and the very earlier material i.e., Ex.P1 did not disclose subjecting her for sexual act at the land, if she reveals the same to her parents that would have find a place in Ex.P1 and also Ex.P2 also not disclosing anything about subjecting of her for sexual act in either of the places and when such being the case, we do not find that the evidence of PW1 and PW 2 inspire the confidence of the Court to invoke Section 376 of IPC and Section 4 of the POCSO Act and unless a cogent material is placed before the Court subjecting her to examination
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR by PW8 - Doctor, her evidence is very clear that hymen was not intact but there is no any sign of recent sexual act and also Court cannot accept the same. Material being placed on the evidence of PW8 - Doctor as to there is no recent sign of sexual intercourse, the Court has to accept the same and when such being the case, we do not find any material on record to invoke Section 376 and Section 4 of the POCSO Act.
14. However with regard to the visiting the house and the promise was made by the accused persons is concerned and forcibly taking the victim, it is clear that, after victim-PW2 and accused No.1 came back to the village, they went to the house of the accused persons and PW3 categorically deposed with regard to they went to the house, that the accused persons promised to perform the marriage so also PW2 in her statement under Section 164 of Cr.Pc. and evidence before the Trial Court is firm and not shaken. But, PW4 though speaks about that he was also present at the time of abusing them, has not heard
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR the clear words with regard to the abuse is concerned and the fact is that PW3 and PW4 spoken about the visiting the house of the accused persons and requesting them to perform the marriage as there is a clear and accurate evidence with regard to invoking of the offence under SC/ST (P.A) Act and when such being the case, on the basis of material on record, the Trial Court not discussed the same in detail with regard to the offences of Section 504 of IPC and Section 3(2)(v) and also section 3(1)(x) of SC/ST (P.A) Act, but material available on record co- relates with regard to the incident is concerned i.e., taking her forcibly to the Bengaluru and also brought her back to the village after the phone call threat and then they went to the house of the accused wherein also a request was made and the promise was made and these are the reasons with regard to the delay in lodging the complaint. When such being the case, the Trial Court ought to have considered all these materials available on record.
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15. Though the charge is framed under Section 366A of IPC, however looking to the materials on record and evidence, the invoking of the said offence is not attracted, however the materials clearly suggests that the ingredients of Section 363 gets attracted. When the Court suggested this to the learned Addl. SPP, counsel for the appellant - complainant and the learned counsel for the accused, having found that the offence chargeable is to be altered, conceded for the same reason being the rigor of the said charge is less than the one now been charged i.e., under Section 366A of IPC. Having considered the submission of the learned counsel for the parties, the charge under Section 366A of IPC now stands modified to Section 363 of IPC, exercising the power under Section 221(2) of Cr.Pc. No need to give an opportunity since the same is lesser the offence compared to Section 366A of IPC. The Trial Court in presence of the materials on record has failed to consider the offence under Section 363 of IPC has been proved. It is on record that the victim was minor
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR as on the date of incident. It is also on record that the victim in her statement under Section 164 of Cr.Pc. as well as the evidence withstood firmly that she has been taken to Bengaluru by accused No.1. Though as has been argued by the learned counsel that the PW1 had admitted that she had been to Bengaluru with accused No.1 and lived there happily with him for six days, could not comes to the aid of accused No.1, reason being the victim was minor as on the date of incident and victim was induced and remanded under the lawful guardianship of her parents. In these circumstances, the definition of Section 361 of IPC and ingredients there on attracted obviously the charge under Section 363 of IPC get attracted. The accused No.1 aware of the charge framed against him under Section 366A of IPC that the victim was minor and taken her out of native place and some other place, his rights as such neither prejudiced on attorney the charge under Section 363 of IPC nor would amounts causing injustice. The Trial Court missed this aspect of the matter, as such the judgment of
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR the Trial Court suffers from perversity of facts. This Court as an appellate Court exercising the power under Section 386 of Cr.Pc. may reverse such order and direct the further inquires be made or that the aimed be re-tried or committed for trial or even find him guilty and pass sentence on him accordingly to law.
16. The punishment prescribed under Section 363 of IPC is imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
17. It is on record that accused No.1 was arrested and produced before the Court on 12.01.2014. He was released on Bail on 07.02.2014. He was in jail for a period of 27 days. In view of the same, the punishment for the offence under Section 363 is set off to the days of custody stated supra under Section 428 of Cr.Pc. So far fine is concerned, the same is ordered to exercise power under Section 357 of Cr.Pc. However taking note that the
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR incident is of the year 2013 and more than a decade was elapsed and instead of remanding the matter for consideration of these offences under Section 3(2)(v) and Section 3 (2)(x) of SC/ST (P.A) Act and Section 363 of IPC and also Section 504 of IPC, this Court felt it appropriate to invoke section 357 and 357A of Cr.Pc. to compensate the victim.
18. Since the victim girl belongs to the downtrodden that is particularly SC community and by taking note of the said fact into consideration, the benefit of doubt is extended to the accused for other offences and the delay in considering the material also on record, We find that the victim can be compensated by giving a compensation under Section 357 and 357A of Cr.P.C having been convicted under Section 363 of IPC and by overall considering the material available on record, it is appropriate to even not reversing the judgment of the Trial Court in respect of other offences stated supra and can order for compensation even in the case of acquittal,
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR when the evidence of victim-PW2 inspire the confidence of this Court taking the age of the girl as 17 year when they had gone to Bengaluru and thereafter, the request for marriage was also not performed and now it is learnt from the learned counsel for the parties that both of them married happily residing along with their respective family and also having children instead of remanding the matter for other offences stated supra, the victim can be rehabilitated by ordering for compensation under Section 357 and Section 357A of Cr.P.C and hence, it is appropriate to order for an amount of Rs.1,50,000/- to pay to the victim by the accused No.1 instead of remand as agreed by the counsel for accused having found material in respect of offences under Section 3(2)(v) and 3(2)(x) of SC/ST (P.A) Act, Section 504 of IPC and Section 363 of IPC only in respect of fine aspect as a special case and not as precedent. Apart from that, when the girl who is below the age of 17 belongs to the SC community and when she was subjected to the said act, the Court also
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR extended the benefit of doubt in view of the material contradictions in terms of Exs.P1 and P2 and the evidence of PW2 - victim girl not inspires to the extent of the case of the prosecution to prove the beyond reasonable doubt for the other offences except Section 363 of IPC. Hence, in addition to the time imposed to the accused it is appropriate to direct the District Legal Service Authority to pay an amount of Rs.1,50,000/- to the victim under Section 357A Sub Clause (3) of Cr.P.C, considering overall material available on record and hence, by confirming the judgment of acquittal for other offences and even can award compensation as held in the judgment of Hon'ble Apex Court in Ms. Eeva Through Dr. Manjula Vs. State (Govt. of Nct of Delhi) reported in (2017) 15 SCC 133 in Paragraph 20 of the judgment wherein discussed the statement of objects and reasons and preamble of POCSO Act. Compensation to the victim is an essential part of curing justice. The Apex Court also in the case of Saibaj Noor mohammad Shaikh Vs. State of Maharashtra
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR and another decided on 04.11.2024 in SLP (Crl) No.13890/024 has directed the Trial Court to award the compensation. Even in the case of Acquittal of the accused, the POCSO Act is a beneficial legislation aimed at ameliorating the suffering of children of sexual abuse. In the case of Rahul Vs. State (Govt. of Nct of Delhi) reported in (2023) 1 SCC 83 in Paragraph No.47 held that in case of acquittal under Section 357A of Cr.P.C, the victim would be entitled to the compensation. The judgment of acquittal is hereby modified, only to the extent of payment of compensation invoking the beneficial provisions of Section 357A of Cr.Pc. and for conviction under Section 363 of IPC.
19. Accordingly, we proceed to pass the following:
ORDER
i) The criminal appeals are allowed in part, modifying the acquittal order.
ii) Acting under Section 235(2) of Cr.Pc., accused No.1 is convicted for the offences under Section
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR 363 of IPC and sentenced to undergo imprisonment for 27 days which is the period the accused No.1 was under custody in view of set off extended under Section 428 of Cr.Pc.
iii) The accused/respondents are directed to deposit the amount of Rs.1,50,000/- as fine for the offence punishable under Section 363 of IPC before the Trial Court within a period of eight weeks and no further time will be extended on deposit and on deposit, pay the amount to PW2 on proper identification.
iv) In case the accused/respondents commits default in payment of amount, the Trial Court is directed to proceed in recovering the same in accordance with law. This direction is not precedent and considered as special case as observed above in Paragraph No.15.
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NC: 2025:KHC-K:4366-DB CRL.A No. 200145 of 2015 C/W CRL.A No. 200034 of 2016 HC-KAR
v) The District Legal Services Authority is directed to pay compensation of Rs.1,50,000/- to the victim - PW2 on proper identification. \ Sd/-
(H.P.SANDESH) JUDGE Sd/-
(T.M.NADAF) JUDGE THM List No.: 1 Sl No.: 53/CT:JLR