Karnataka High Court
Anil Kumar H.S vs The State Of Karnataka on 22 April, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:16580
CRL.A No. 1106 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.1106 OF 2024
BETWEEN:
ANIL KUMAR H S,
S/O SHIVANNA @ SHIVEGOWDA,
AGED ABOUT 38 YEARS,
R/O C/O SMT. AMUDU'S RENTED HOUSE,
6TH CROSS, 2ND MAIN,
MUNESHWARA LAYOUT, LAGGERE,
BENGALURU-560058
...APPELLANT
(BY SRI ABHISHEK HUDDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally signed BY NANDINI LAYOUT POLICE STATION,
by DEVIKA M REP BY S.P.P,
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF BENGALURU-560001.
KARNATAKA
2. VICTIM,
REP. BY NATURAL GUARDIAN HER MOTHER -
SUNANDA, W/O ANANDA,
AGED ABOUT 35 YEARS
R/A NO.42, 6TH CROSS, 2ND MAIN
MUNESHWARA LAYOUT, LAGGERE
BENGALURU-560058
...RESPONDENTS
(BY SMT. K P YASHODA, HCGP FOR R1;
SRI MONISH C P, ADVOCATE FOR R2)
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NC: 2025:KHC:16580
CRL.A No. 1106 of 2024
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.PC
PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 30.03.2024 AND
02.04.2024 PASSED BY THE COURT OF THE ADDL. CITY CIVIL
AND SESSIONS JUDGE, FTSC-II, BENGALURU IN
SPL.C.C.NO.816/2022 U/S 376 OF IPC, SEC. 6 AND 8 OF
POCSO ACT 2012 AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This appeal is filed challenging the judgment of conviction and sentence dated 30.03.2024 and 02.04.2024 passed in Spl.CC.No.816/2022 by the Additional City Civil and Sessions Judge, FTSC-II, Bengaluru.
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the prosecution before the Trial Court is that on 22.01.2022 at about 6.30 p.m., when the victim girl aged about 8 years was alone in her house situated at No.42, 6th Cross, 2nd Main Road, Muneshwara Lyaout, Laggere, Bengaluru, the accused went to the house of the victim girl and committed rape on her by touching her vagina and other private parts with a -3- NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 sexual intent and forcibly had a sexual intercourse with the victim girl without her consent. Hence, the offences punishable under Section 376 of IPC and Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) were invoked against the appellant/accused.
4. The case was registered against the accused based on the complaint of the mother of the victim girl. After the complaint, the police have investigated the matter and filed the charge-sheet. The accused was secured before the Trial Court and he did not plead guilty of the aforesaid offences and claims the trial. Hence, the prosecution examined the witnesses as P.W.1 to P.W.14 on its behalf and also got marked the documents at Exs.P1 to P47 and also marked the material objects as M.O.1 to M.O.12. On behalf of the accused, one Manjunath H R is examined as D.W.1. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the prosecution proved the case against the accused and hence, convicted the accused for the offence punishable under Section 6 of the POCSO -4- NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 Act and sentenced to undergo rigorous imprisonment for a period of 20 years with fine of Rs.10,000/- and also convicted for the offence punishable under Section 8 of the POCSO Act and sentenced to undergo simple imprisonment for a period of three years with fine of Rs.1,000/-.
5. Being aggrieved by the said judgment of conviction and sentence, the present appeal is filed by the accused/appellant before this Court.
6. The learned counsel appearing for the appellant would vehemently contend that the age of the victim is only one part of the matter in satisfying the definition of a child as under Section 2(d) of the POCSO Act, however, the mere age of the victim cannot determine the guilt of the accused since, there has to be evidence substantiating and corroborating allegations of such heinous nature. It is also contended that the Sessions Judge has turned a blind eye to Section 164 of Cr.P.C statement of the complainant, wherein she has stated that she came back from her regular work and she allegedly witnessed that the accused slept on the victim girl and then she cried. There is not -5- NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 even a whisper of an attempt of the complainant to come to the aid of her daughter who was allegedly the victim of sexual assault and non-consideration of this testimony amongst various other lacunas leads the conviction and the same is erroneous. The learned counsel contend that the medical evidence, which was placed before the Court is clear that hymen was intact and there were no any injuries on the private part of the victim girl. The learned counsel contend that the evidence of P.W.3 is nothing but who turned witness and she deposed in the line of the evidence of P.W.2 mother. P.W.2 says that she witnessed the incident and the accused ran away from the house of the victim and no one came forward and gave evidence. The evidence of neighbouring witness, according to the prosecution, that they rushed to the spot and witnessed the accused ran away is not substantiated by any material before the Court. The learned counsel contend that P.W.12 who according to the prosecution resides in the same apartment as the appellant and allegedly witnessed the appellant escaping from the scene of crime, but P.W.12 however did not support the case of the prosecution and -6- NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 nothing corroborates the case of the prosecution and hence it is a clear case of acquittal.
7. The learned counsel for the appellant in support of his arguments relied upon the judgment of the Apex Court passed in Crl.A.94/2025 dated 07.01.2025 arising out of SLP (Crl.) No.11687/2019 and brought to the notice of this Court paragraph No.10 with regard to the sole testimony of the prosecutrix, wherein it is held that it is absolutely true that in the case of rape, conviction can be made on the sole testimony of the prosecutrix as her evidence is in the nature of an injured witness which is given a very high value by the Courts. But nevertheless when a person can be convicted on the testimony of a single witness the Courts are bound to be very careful in examining such a witness and thus testimony of such a witness must inspire confidence of the Court. The testimony of the prosecutrix in the present case thus failed to inspire absolute confidence of the Trial Court, the High Court and this Court as well.
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8. The learned counsel also relied upon the judgment of the Gauhati High Court passed in Crl.A.No.278/2022 dated 12.12.2023 and brought to the notice of this Court paragraph No.23, wherein it is held that as regards the question as to whether the victim was forcefully subjected to sexual intercourse recently before such medical examination or not, no such conclusive evidence is there as the medical evidence on record also failed to suggest that the victim was subjected to forceful sexual intercourse. Moreover, considering the fact that the testimony of the victim girl while she has deposed before the Court is inconsistent and totally contradictory to her statements which she has made while her statement was recorded under Section 164 of Cr.P.C. as well as made under Section 161 of Cr.P.C., this Court is of considered opinion that it may not be safe to rely on sole testimony of the victim girl to arrive at a finding of guilt of the present appellant. As the testimony of the victim girl does not inspire confidence and same remained uncorroborated in material particulars, the appellant is entitled to get benefit of doubt in the instance case.
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9. The learned counsel referring these two judgments would contend that the prosecutrix deposed before the Court and there is no consistent evidence as well as no medical evidence and also the evidence of the victim not inspires the confidence of the Court.
10. Per contra, the learned High Court Government Pleader appearing for respondent No.1 State relied upon the Apex Court judgment in the case of RANJIT HAZARIKA v. STATE OF ASSAM reported in (1998) 8 SCC 635, wherein it is held that in a case of Section 376 of IPC, non-rupture of hymen or absence of injury on victim's private parts held, does not belie her testimony as she nowhere stated that she bled per vagina and her statement remained virtually unchallenged in cross-examination. To constitute rape penetration, however slight is sufficient. Prosecutrix subjected to sexual intercourse in a standing posture indicating absence of any injury on her private parts. Opinion of doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides such opinion was based on no reasons. On facts, corroboration of testimony -9- NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 of prosecutrix by medical evidence was not essential. In any case, her evidence was amply corroborated by her mother and father whom she immediately informed about the occurrence.
11. The learned High Court Government Pleader referring this judgment would contend that this judgment is aptly applicable to the case on hand. The learned counsel contend that the evidence of P.W.2 and P.W.3 is very specific that the incident was taken place and revealed what act was done by the accused. P.W.2 mother witnessed both of them in naked posture and the accused ran away from the spot and the victim girl was taken to the hospital and subjected for medical examination. P.W.5 examined the victim and even recorded the statement of the victim and she categorically stated with regard to the act of the accused. The learned counsel contend that though other witnesses have turned hostile with regard to they rushed to the spot, but their evidence is very clear that C.W.1 i.e., P.W.2 screamed and rushed to the spot. The learned counsel also brought to the notice of this Court that those witnesses have supported the case of the
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 prosecution in their chief evidence, but they were cross- examined after a long time and won over the witnesses and hence the prosecution was not able to place on record the corroboration with regard to the incident is concerned. The learned counsel contend that the principles laid down in the judgment of the Apex Court is very clear with regard to that even slight penetration is enough.
12. The learned High Court Government Pleader also relied upon the judgment of the Apex Court passed in Crl.A.No.144/2022 dated 08.02.2022 and brought to the notice of this Court paragraph No.8, wherein discussion was made with regard to Section 3 of the POCSO Act defines 'penetrative sexual assault' and Section 5 of the POCSO Act defines 'aggravated penetrative sexual assault' and as per Section 5(m) whoever commits penetrative sexual assault on a child below twelve years, it is aggravated penetrative sexual assault. Section 6 provides punishment for aggravated penetrative sexual assault. The learned counsel contend that the said judgment is aptly applicable to the case on hand.
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13. In reply, the learned counsel for the appellant would contend that there was no corroboration and P.W.2 and P.W.3 are interested witnesses and there was a financial transaction and hence they were having grounds against the accused and a false case has been registered.
14. Having heard the learned counsel for the appellant and the learned High Court Government Pleader and taking note of the principles laid down in the judgments referred supra by both the learned counsel, the points that arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in invoking the offences under Sections 6 and 8 of the POCSO Act and also Section 376 of IPC against the appellant and whether it requires interference of this Court by exercising the appellate jurisdiction?
(ii) What order?
Point No.(i):
15. Having heard the learned counsel for the respective parties, no doubt, the Apex Court in its judgment in the case of Ranjit Hazarika (supra), held that
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 in a case of Section 376 of IPC, non-rupture of hymen or absence of injury on victim's private parts, held does not belie her testimony as she nowhere stated that she bled per vagina and her statement remained virtually unchallenged in cross-examination. To constitute rape penetration, however slight is sufficient. Prosecutrix subjected to sexual intercourse in a standing posture indicating absence of any injury on her private parts.
16. In the case on hand, it is not the case of the prosecution that sexual assault was committed in standing posture indicating absence of any injury. It is the case of P.W.2 mother that when she entered the house, the accused was lying on the victim girl.
17. The Apex Court in its judgment passed in Crl.A.No.144/2022 (supra) observed in paragraph No.8 that in a case of aggravated penetrative sexual assault, Section 6 of the POCSO Act provides punishment and also discussed that in the present case, it has been established and proved that the accused penetrated his finger in the vagina and because of that the victim girl felt pain and
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 irritation in urination as well as pain on her body and there was redness and swelling around the vagina found by the doctor. It was also opined that therefore the case would fall under Section 3(b) of the POCSO Act and it can be said to be penetrative sexual assault and considering Section 5(m) of the POCSO Act as such penetrative sexual assault was committed on a girl child aged four years (below twelve years) the same can be said to be 'aggravated penetrative sexual assault' punishable under Section 6 of the POCSO Act. Therefore, both the Trial Court as well as the High Court have rightly convicted the accused for the offence punishable under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act.
18. In the case on hand, there was no such circumstances that the victim girl felt any pain or irritation in urination as well as pain on the body and there was no redness and swelling around the vagina found by the doctor. It is the case of the prosecution that not only inserted his finger and also even penetrated his penis, but the Court has to take note of the evidence of doctor P.W.5 in order to come to the conclusion that whether there was
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 any aggravated penetration. The evidence of P.W.5 doctor is that she examined the victim and she was grown according to her age and not found any external injuries on her body and hymen was intact and given the report in terms of Ex.P.14 and also collected the clothes of the victim and sent to FSL and FSL report is negative. It is important to note that in the evidence the witness says that if penis is inserted to certain extent, there is a possibility of hymen is intact. But in the cross-examination, when a suggestion was made that if a seven years girl was subjected to sexual assault or inserting the finger there are chances of injuries, the witness says that sometimes it may occur and sometimes it may not occur. She admits that there was no any sign of inserting of finger, but she has mentioned the same as per the statement of the victim girl. Hence, it is clear that hymen was intact and there was no any sign of subjecting her for sexual assault.
19. P.W.3 victim girl though she reiterated that the accused subjected her for sexual act in her chief evidence, she says that he inserted finger as well as penis and also caused sexual assault over her naked body. The accused
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 removed her clothes and clothes of the accused and when the mother came to the house and found both of them in the said posture, the accused ran away from the spot. But in the cross-examination, she says that she cannot tell the name of the hospital and she was suffering from fever and she was taken to the hospital and also she revealed that she was suffering from fever to the doctor and the doctor has examined her and obtained her signature. She cannot tell what is written in the document, but her signature was taken. She says that after coming to the house, she bolted the door and was sleeping. When mother came and knocked the door she went and removed the door by opening the lock. Except eliciting this answer in the cross- examination, nothing is elicited from the mouth of P.W.3 and even not suggested for false implication of the accused in the case and even not put any questions of committing the act of sexual assault during the course of cross- examination of P.W.3.
20. P.W.2 is the mother of the victim girl and she reiterated the evidence of P.W.3 that P.W.3 revealed the act of the accused when she witnessed both of them and
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 also reveals that the neighbours rushed to the spot and found the accused ran away from the place. But in the cross-examination of P.W.2, nothing is suggested about any animosity against the accused, except the answer elicited that the complaint was written by her brother Raghavendra.
21. The learned counsel for the appellant brought to the notice of this Court that the appellant says that he himself and his sister are illiterates and hence the evidence of P.W.2 cannot be believed. Only on mere stray admission on the part of writing of the complaint, the Court cannot discard the evidence of P.W.2 in total. However, the fact that the victim was taken to the hospital immediately is not in dispute and P.W.5 doctor is examined is not in dispute. On perusal of the material on record with regard to the aggravated penetration is concerned, the medical evidence is not clear, but the hymen was intact and there were no any injuries on the private parts of the victim. P.W.1 doctor examined the accused on production of the accused in terms of Ex.P.4 request made by the prosecution and found that there were scratch marks on the face, nose and
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 also on the chest of the accused and says that these injuries could be caused if any person scratch by using nail and those injuries are recent one. The fact that the incident was taken place on 22.01.2022 and the accused was examined on the very next day is not in dispute. In the cross-examination of P.W.1, nothing is elicited with regard to the nature of injures and even not denied the nature of injuries sustained by the accused, but except eliciting the answer that those type of injuries could be caused by using nail and cannot say that those injuries could be caused only as nail injuries, nothing is elicited. In 313 statement of the accused, no explanation was given with regard to the injuries sustained by him on his face as well as on the chest. Apart from that, the evidence of doctor P.W.5 is clear that she has noted down the act of the accused on the say of the victim in her evidence.
22. It is important to note that in the further cross- examination of P.W.5, when a question was put that if there is any material before the Court to show that the victim was subjected to sexual act, she categorically says that with regard to sexual assault is concerned, as stated
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 by the victim girl, she has mentioned the same and also with regard to the history is concerned, history is mentioned based on the statement of the victim. In the further cross-examination, it is elicited that the victim stated that when she screamed at the spot, other people rushed to the spot and dragged the accused and the same was written in the document. Hence, it is clear that when an attempt was made to commit the rape on her, he committed the offence as defined under Section 7 of the POCSO Act. It is very clear that an attempt to commit penetrative sexual act was made in view of the evidence elicited from the mouth of P.W.1 doctor, who examined the accused and found the scratch marks on the face and chest of the accused. P.W.5 says that in the records they have mentioned that when the victim girl screamed at the spot, people rushed to the spot and dragged the accused and hence the penetrative sexual act was not completed and this aspect was not considered by the Trial Court while appreciating the material available on record. The fact is that the incident was taken place, though it is the
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 categorical denial of the accused that no such act was taken place.
23. I have already pointed out that in the cross- examination of P.W.2 and P.W.3, no suggestion was put with regard to animosity. It is found that while cross- examining P.W.8, at the first instance, he was not cross- examined, but later the learned counsel for the accused cross-examined some of the witnesses on 13.10.2023 and suggestions were put to the witnesses and it appears that these witnesses were won over during the course of cross- examination. The Court has to take note of the conduct of the learned counsel who did not cross-examine the witnesses when the witnesses were examined before the Court and cross-examination was done after six months of chief evidence of the witnesses. It is clear that sexual assault was made and the victim girl categorically deposed before the Court that the accused made her naked and subjected her for sexual assault, which comes within the purview of definition of Section 7 of POCSO Act, which clearly states that whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. The punishment is also provided under Section 8 of the POCSO Act that whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
24. The Trial Court failed to take note of the material available on record with regard to the aggravated sexual act. I have already pointed out that the judgment of the Apex Court in the case of Ranjit Hazarika (supra), relied upon by the learned counsel for the State will not come to the aid of the prosecution to invoke Section 6 of the POCSO Act and Section 376 of IPC and also the judgment which has been relied upon by the learned counsel for the appellant passed in Crl.A.94/2025 also will not come to the aid of the appellant that the sole prosecutrix evidence cannot be relied upon if it is not credible and such argument cannot be accepted. The
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 evidence available on record is very clear that nothing is elicited from the mouth of P.W.2 and P.W.3 to falsely implicate the accused and there was no animosity on the part of the accused by the complainant's family. The evidence of P.W.2 and P.W.3 is very clear with regard to invoking the ingredients of Section 7 of POCSO Act and not Section 6 of the POCSO Act and Section 376 of IPC. Hence, it is a case for interference only to modify the judgment of the Trial Court instead of invoking Section 376 of IPC and 6 of POCSO Act. An attempt was made by the accused, if the mother had not rushed to the house, at that event, it would have completed the offence under Section 6 of the POCSO Act and Section 376 of IPC. But fortunately the mother came to the house and found the accused in a naked posture along with the victim girl aged about eight years. Having taken note of the said fact into consideration, the Trial Court rightly convicted the accused for the offence punishable under Section 8 of the POCSO Act, but committed an error in invoking Section 6 of the POCSO Act and Section 376 of IPC. Hence, it requires modification of
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NC: 2025:KHC:16580 CRL.A No. 1106 of 2024 the judgment of the Trial Court. Hence, I answer the point partly in the affirmative.
Point No.(ii):
25. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The judgment of the Trial Court invoking Section 376 of IPC and Section 6 of the POCSO Act is set aside.
(iii) The conviction and sentence of the appellant for the offence punishable under Section 8 of the POCSO Act is confirmed.
(iv) The learned counsel for the appellant submits that the appellant has already undergone three years imprisonment. If such material is found, the appellant is entitled for set off under Section 428 of Cr.P.C. and the jail authorities are directed to release him, if he has undergone the sentence of three years.
Sd/-
(H.P.SANDESH) JUDGE MD