Karnataka High Court
Bhimanna vs The State Of Karnataka on 12 June, 2025
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 200018 OF 2019
(374(Cr.PC)/415(BNSS))
BETWEEN
BHIMANNA
S/O MADIVAAPPA SUNGATHAN,
AGE:31 YEARS, OCC:COOLIE,
R/O BANKAAGI, NOW RESIDING AT SINDAGI,
TQ.SINDAGI, DIST.VIJAYAPUR - 586101. ...APPELLANT
(BY SRI SHIVANAND V PATTANASHETTI, ADV.)
AND
1. THE STATE OF KARNATAKA
R/BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585106.
Digitally signed by
SREEDHARAN BANGALORE (THROUGH SINDAGI P.S.
SUSHMA LAKSHMI
DIST.VIJAYAPUR-586101)
Location: High Court of
Karnataka
2. BHAGWANT
S/O BHEEMSHI KSHATRI
AGED 25 YEARS, OCC: AGRICULTURE
R/O SINDAGI, DIST VIJAYAPURA - 586 101
(R2 IMPLEADED VIDE ORDER DATED.20.08.2024)
... RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1;
R2 SERVED)
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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER OF CONVICTION DATED: 19.12.2018
PASSED BY THE II ADDL. DISTRICT & SESSIONS JUDGE,
VIJAYAPURA, IN SPECIAL CASE (POCSO) No.22/2015
CONVICTING THE APPELLANT / ACCUSED FOR THE OFFENCES
P/U/S.376(2)(i) OF IPC & SEC. 3(a), 5(j)(ii) OF POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.03.2025, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S RACHAIAH
CAV JUDGEMENT
(PER: HON'BLE MR. JUSTICE S RACHAIAH)
1. This appeal has been filed by the appellant being
aggrieved by the judgment of conviction dated
19.12.2018 and order on sentence dated 20.12.2018 in
Special Case (POCSO) No.22 of 2015 on the file of the II
Additional District and Sessions Judge at Vijayapura,
wherein the accused has been found guilty for the
offences under Section 376(2)(i) of Indian Penal Code
(for short 'IPC') and Sections 3(a), 5(j)(ii) of The
Protection of Children from Sexual Offences Act, 2012
(for short 'POCSO Act').
Factual matrix of the case are as under:
2. The brother of the victim lodged a complaint before
Sindagi police on 21.06.2015 at 20.15 hours stating that
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he is the resident of Holada Vasti, Sindagi and is residing
along with his wife, mother and sister in the farmhouse of
their land situated at Sindagi-Malegaon road near Ealiger
Oil Mill. The victim is his sister and she is deaf and dumb
from her birth. She used to graze the sheep nearby their
land. The accused and his father were known to the
complainant much earlier to the incident. Thereafter, they
shifted to Sindagi by seeking coolie work.
3. The accused was doing ploughing the land of Ramu
Kulkarni for the past three days and on the date of
alleged incident, the victim was grazing the sheep near
her land. The complainant had been to Sindagi along
with his friend to bring the tractor for tilling the land.
After coming home, he heard the screaming noise of his
sister from his land.
4. On hearing the screaming sound, he went to the spot and
noticed that the accused committing rape on his sister.
The accused on seeing the complainant, ran away from
the spot. Even though the complainant tried to catch
him, he could not catch the accused.
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5. After the incident, the complainant brought his sister to
the house and waited for arrival of his mother from
sandy. After her arrival, he narrated the incident and in
the meantime, the victim also narrated the incident
through sign language. Thereafter, he lodged a
complaint against the accused before the respondent -
Police. The respondent - police after conducting the
investigation, submitted the charge sheet.
6. To prove the case of the prosecution, the prosecution, in
all, examined 25 witnesses as PWs.1 to 25 and got
marked 31 documents as per Exs.P1 to P31 and also
identified 4 material objects as M.Os.1 to 4. The Trial
Court after considering the evidence on record, convicted
the accused for the above mentioned offences.
7. Heard Sri Shivanand V. Pattanashetti, the learned counsel
for the appellant and Sri Jamadar Shahabuddin, learned
High Court Government Pleader for the respondent
No.1/State.
8. It is the submission of the learned counsel for the
appellant that the judgment of conviction and order on
sentence passed by the Trial Court is contrary to the facts
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of the case, evidence on record and also against the
settled principles of law.
9. It is further submitted that the prosecution has not
proved the minority of the victim. Therefore, the
conviction under the POCSO Act cannot be sustained.
There is a discrepancy in the report issued by the Doctor
- P.W.7 regarding the age of pregnancy and also the date
of commission of offence.
10. It is further submitted that even assuming that the DNA
report is considered as true, the fact remains that, when
the prosecution has not proved the case beyond
reasonable doubt regarding the age of the prosecutrix
and also not obtaining the consent, it cannot be
presumed that the accused has committed rape on the
victim.
11. It is further submitted that, even after the incident, the
family members have continued the pregnancy of the
victim till ten weeks which would indicate that the family
members were not intended to terminate the pregnancy.
Therefore, the findings of the Trial Court in recording the
conviction required to be set aside. Making such
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submissions, learned counsel for the appellant prays to
allow the appeal.
12. Per contra, learned High Court Government Pleader for
respondent No.1 controverted the submissions of the
learned counsel for the appellant and he further
submitted that the evidence of the mother of the victim
and also the medical examination conducted by P.W.2
would indicate that the age of the victim - girl appeared
to be more than 12 years and less than 16 years. That
would indicate that she was a minor as on the date of
alleged incident. Moreover, P.W.1 after hearing the
screaming sound of his sister, went to the spot and
rescued her.
13. It is further submitted that the act of the accused
committing sexual intercourse without the consent of the
victim amounts to rape. The Trial Court after
appreciating the evidence of all the witnesses, rightly
recorded the conviction.
14. It is further submitted that the aborted residue was
prepared in the form of slide and it was subjected to DNA
test. The DNA test would indicate that the accused is the
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biological father of the aborted foetus. Therefore, the
findings of the Court below are proper and appropriate
and interference may not be required. Making such
submissions, learned High Court Government Pleader for
respondent No.1 prays to dismiss the appeal.
15. Having heard learned counsel for the respective parties
and also perused the findings of the courts below in
recording the conviction, it is relevant to take note of the
brief history of the witnesses.
16. P.W.1 is the complainant and he is the brother of the
victim. P.W.2 is the Doctor who examined the victim.
P.W.3 is the employer of the accused. P.W.4 is the owner
of the land situated nearby the house of the victim. P.W.5
is the Psychiatrist who examined the victim about her
mental ability. P.W.6 is the Doctor who gave the scan
report of the victim. P.W.7 is the Doctor who examined
the victim and terminated the pregnancy. P.W.8 is the
panch witness for Exhibit P15 - panchanama. P.W.9 is the
mother of the victim. P.W.10 and P.W.11 are the owners
of the adjacent lands. P.W.12 is the elder sister of the
victim. P.W.13 is the scribe of the complaint. P.W.14 is
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the Doctor who examined the accused. P.W.15 is the
Expert Teacher in the Dumb and Deaf School, situated at
Golageri, Sindagi Taluk. P.W.16 is the victim. P.W.17 is
the Engineer who drew the sketch at Ex.P19. P.W.18 was
the Head Constable, Sindagi Police Station, who carried
the FIR and submitted to the court. P.W.19 was the PSI
who recorded the statement of the victim with the help of
her brother - complainant. Rest of the witnesses are
police officials and official witnesses.
17. It is the case of the prosecution that the accused
committed rape on the victim, who is dumb and deaf.
Consequently, she became pregnant and considering her
health status, the said pregnancy was terminated. The
aborted foetus was preserved in the form of slide for the
purpose of conducting DNA test. The DNA test was
conducted. The said report would indicate that both the
victim and the accused are the biological parents of the
said foetus.
18. Be that as it may, now it is necessary to consider as to
whether the age of the prosecutrix has been proved in
accordance with law. In this context, it is relevant to
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take note of the judgment of the Hon'ble Supreme Court,
for the purpose of clarifying as to whether the age of the
victim has been determined properly or not. The Hon'ble
Supreme Court in the case of P. Yuvaprakash v. State
Rep. by Inspector of Police1, in paragraph Nos.12, 13
and 14, held as under:
12. In view of Section 34(1) of the POCSO Act,
Section 94 of the JJ Act, 2015 becomes relevant,
and applicable. That provision is extracted below:
"94. Presumption and determination of
age. - (1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act
(other than for the purpose of giving
evidence) that the said person is a child,
the Committee or the Board shall record
such observation stating the age of the
child as nearly as may be and proceed with
the inquiry under section 14 or section 36,
as the case may be, without waiting for
further confirmation of the age.
1
2023 SCC OnLine SC 846
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(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee
or the Board, as the case may be, shall
undertake the process of age
determination, by seeking evidence by
obtaining-
(i) the date of birth certificate from
the school, or the matriculation
or equivalent certificate from the
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:
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Provided such age
determination test conducted
on the order of the Committee
or the Board shall be
completed within fifteen days
from the date of such order.
(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person.
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
concerned examination Board, if
available; and in the absence thereof;
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(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."
14. Section 94(2)(iii) of the JJ Act clearly
indicates that the date of birth certificate from
the school or matriculation or equivalent
certificate by the concerned examination board
has to be firstly preferred in the absence of which
the birth certificate issued by the Corporation or
Municipal Authority or Panchayat and it is only
thereafter in the absence of these such
documents the age is to be determined through
"an ossification test" or "any other latest medical
age determination test" conducted on the orders
of the concerned authority, i.e. Committee or
Board or Court. In the present case, concededly,
only a transfer certificate and not the date of
birth certificate or matriculation or equivalent
certificate was considered. Ex. C1, i.e., the school
transfer certificate showed the date of birth of the
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victim as 11.07.1997. Significantly, the transfer
certificate was produced not by the prosecution
but instead by the court summoned witness, i.e.,
CW-1. The burden is always upon the prosecution
to establish what it alleges; therefore, the
prosecution could not have been fallen back upon
a document which it had never relied upon.
Furthermore, DW-3, the concerned Revenue
Official (Deputy Tahsildar) had stated on oath
that the records for the year 1997 in respect to
the births and deaths were missing. Since it did
not answer to the description of any class of
documents mentioned in Section 94(2)(i) as it
was a mere transfer certificate, Ex C-1 could not
have been relied upon to hold that M was below
18 years at the time of commission of the
offence."
19. On careful reading of the dictum of the Hon'ble Supreme
Court, it makes it clear that the above methods to prove
the juvenility have to be followed. In the present case,
P.W.2 - Doctor on examining the radiological test on the
victim, opined that the age of the victim is above 12
years and below 16 years. Such being the case, it is held
that, the age of the victim has been proved properly by
the prosecution. Nothing has been elicited to discredit
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the method adopted for determining the age of the
victim.
20. Once the age of the victim is determined in accordance
with law, it is held that she is a minor. Notwithstanding
her consent in respect of sexual assault, that cannot be
construed as valid consent in accordance with law.
Therefore, the prosecution has established that the
accused has committed rape on the victim.
21. There are some discrepancies in the medical evidence
with regard to the age of pregnancy that may not be fatal
to the case of the prosecution, for the reason that, the
complainant and his family members are rustic villagers
and were not aware about the actual process of
subjecting the victim for medical examination.
22. In addition to the above stated appreciation, the DNA test
which was conducted on the foetus of the victim assumes
greater significance even though, it is the opinion of the
expert, for the reason that, the DNA test is considered as
one of the effective tests for determining the paternity.
In this case, the said DNA test would indicate that the
accused is the biological father of the foetus. Therefore,
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it is established that the accused had committed rape on
the victim, who is deaf and dumb by birth and made her
to become pregnant.
23. Hence, I am of the considered opinion that the findings of
the Trial Court in recording the conviction appears to be
proper and appropriate. There is no occasion for this
Court to interfere with the said findings.
24. Accordingly, I proceed to pass the following:
ORDER
The Criminal Appeal filed by the appellant/accused is dismissed.
Sd/-
(S RACHAIAH) JUDGE BSS List No.: 19 Sl No.: 1