Karnataka High Court
Krishna vs The State Of Karnataka on 6 June, 2025
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NC: 2025:KHC-D:7407
CRL.A No. 100214 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CRIMINAL APPEAL NO.100214 OF 2016 (C)
BETWEEN:
KRISHNA S/O. GYANAPPA BHOSLE
AGE: 21 YEARS, OCC: FISHERY BUSINESS,
R/O. RAMPUR RC TQ AND DIST: BAGALKOT.
...APPELLANT
(BY SRI. N.L.BATAKURKI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BAGALKOT RURAL POLICE STATION,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
Digitally signed
by
MOHANKUMAR CRPC PRAYING TO ADMIT THE APPEAL AND CALL FOR THE RECORDS
B SHELAR
Location: HIGH
COURT OF
FROM COURT BELOW AND SET ASIDE THE JUDGMENT AND
KARNATKA
DHARWAD
BENCH
SENTENCE DATED 14.07.2016 PASSED BY THE II ADDL. DISTRICT
Date: 2025.06.19
14:55:08 +0530 AND SESSIONS JUDGE BAGALKOT IN SPL.C.NO.35/2014 AND IT IS
MOST HUMBLY PRYAED TO ACQUIT THE APPELLANT FOR THE
ALLEGED OFFENCES IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
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NC: 2025:KHC-D:7407
CRL.A No. 100214 of 2016
HC-KAR
ORAL JUDGMENT
The convicted accused in Spl.C.No.35/2014 on the file of the II Additional District and Sessions Judge, Bagalkot (hereinafter referred to as the 'trial Court' for short) has filed this appeal challenging the judgment dated 14.07.2016 and the order of sentence dated 14.07.2016, by which he was convicted for the offence punishable under Section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act, 2012' for short) and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.5,000/- and compensation of Rs.10,000/- to the victim girl.
2. The case of the prosecution is that, PW.1 informed the respondent-police on 02.12.2013 at Bagalkot that the accused was residing in the same lane where her house was situated and that the accused used to tease her daughter. She claimed that at the instance of the elders in the village, the accused owned up his mistake and agreed not to repeat it. She alleged that after the said incident, whenever she walked in the lane, the accused used to abuse her and when questioned, he took her caste and threatened to kidnap and murder her. She alleged that she tolerated these incidents. However, on -3- NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR 30.11.2013 when she and her husband were out of the house, the accused had thrown stones at her house which was informed to her by other residents. Later, her husband informed this to the parents of the accused who told him that they had given up on him and to do whatever that was required to be done.
3. Based on this, the respondent-Police registered Crime No.263/2013 for offences punishable under Sections 336, 354, 504, 506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short) and Section 3(1)(x)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act' for short). The respondent-Police recorded the statements of the complainant, the victim girl and the father of the victim. The respondent-Police also recorded the statements of villagers who had warned the accused and who had informed the complainant that the accused had pelted stones at her house. The respondent-Police secured the caste certificate of the complainant from PW-12. Based on these material, a charge sheet was laid for offences punishable under Sections 336, 354, -4- NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR 504, 506 of IPC and Section 3(1)(x)(xi) of SC/ST Act and Section 12 of the POCSO Act, 2012. The accused was arrested on 04.12.2013 and released on bail on 24.01.2014. Copies of the charge sheet were furnished to the accused and charges were framed for offences punishable under Sections 336, 354, 504, 506 of IPC read with Section 3(1)(x)(xi) of the SC/ST Act and Section 12 of POCSO Act, 2012. The accused pleaded not guilty and claimed to be tried.
4. The respondent-Police examined the complainant as PW.1 and the engineer who had drawn the sketch of the scene of the crime as PW.2, the victim girl as PW.3 and the father of the victim as PW.4.
5. PW.5, PW.6, PW.7 and PW.8 were the elders of the village who had warned the accused against harassing the victim girl. These witnesses turned hostile. PW.9, PW.10 and PW.11 who supposedly had informed PW.1 that the accused had pelted stones at her house also turned hostile. PW.12 was the Tahsildar who placed on record the caste certificate of PW.1 which was marked at Ex.P.13. PW.13 was also one of the persons who had informed PW.1 about the accused pelting -5- NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR stones and he also turned hostile. PW.14 was the Police Inspector who registered FIR and PW.15 was the Dy.S.P. and the Investigating Officer. The trial Court confronted the incriminating evidences to the accused under Section 313 of Cr.P.C., and he denied the same. The accused led evidence and marked Ex.D1 to D4.
6. Based on the oral and documentary evidence, the trial Court held that the evidence of PW.1, PW.3 and PW.4 established beyond doubt that the accused was sexually harassing the girl. It noticed that there was no evidence to establish the offences punishable under Sections 336, 504, 506 of IPC and Section 3(1)(x)(xi) of the SC/ST (Prevention of Atrocities) Act. However, it noticed that the evidence of PW.1, PW.3 and PW.4 established that the accused was sexually harassing the girl and therefore, convicted the accused for offence punishable under Section 12 of POCSO Act and sentenced him to undergo simple imprisonment for a period of one year and to pay fine of Rs.5,000/- and also compensation of Rs.10,000/- to the victim girl. Being aggrieved by the same, the accused is before this Court in this appeal. -6-
NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR
7. Sri.N.L.Batakarki, learned counsel for the accused contended that the accused and the complainant (PW.1) were residing in the same lane. He contends that both the families were known to each other. He further contends that there were certain issues between PW.1 and the mother of the accused and in order to settle scores, the instant complaint was lodged by PW.1. He submits that the entire case of the prosecution is false. He further submits that except the self-serving evidence of PW.1, PW.3 and PW.4, none of the prosecution witnesses supported the prosecution. He further contends that for an offence punishable under Section 12 of POCSO Act, the prosecution is bound to first prove that the victim was a child as defined under POCSO Act, 2012. He contends that except a school certificate marked as Ex.P.16, no documentary evidence was produced to prove that the victim was a minor girl. The accused recorded his statement contending that his mother and PW.1 were representing Shri Dharmadevathe Svasahaya Sangha. He claimed that in 2013 there was misunderstanding between them since PW.1 had misused the funds of the Sangha and that the mother of accused had reprimanded her. He claimed that his mother had given a sum of Rs.15,000/- hand -7- NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR loan and when demanded the return of the money, she filed a false complaint. He also claimed that when the girl was in 8th Std., she had written love letters to him and that he and his parents had informed PW.1 to advice the girl suitably. He claimed that though these love letters were returned to PW.1, the victim girl had again written letters to him. He marked Exs.D.1 to D.4 which were love letters allegedly written by the victim girl. He contends that PW.3 in her evidence deposed that she was married 1 and ½ years prior to she deposing before the Court which meant that she was married somewhere during later part of the year 2014. He contends that if the victim girl was 14 years as per Ex.P.16, it is highly unbelievable that she was married off when she was hardly 15 years old. Therefore, he contends that the victim girl was not a child as on the date of the alleged offence and hence, the trial Court committed error in convicting the accused for offence punishable under Section 12 of POCSO Act, 2012.
8. Per contra, Sri.M.B.Gundawade, learned Addl. SPP submitted that the victim and the accused were all staying in the same lane. He contends that though information about the -8- NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR accused committing an offence punishable under Section 12 of POCSO Act, 2012 was not immediately lodged, but PW.1, PW.3 and PW.4 deposed that the accused was sexually harassing the victim girl by pelting stones, winking at her, etc. He therefore, contends that the accused with a sexual intent had committed a sexual offence and therefore, the trial Court was right in convicting the accused for the offence punishable under Section 12 of POCSO Act, 2012. He also contends that Ex.P.16 is a school record, which is maintained in the regular course and therefore, a presumption is attached to the contents of Ex.P.16. Thus, he contends that the accused was guilty of an offence punishable under Section 12 of POCSO Act, 2012.
9. After hearing the learned counsel for the accused and the learned Addl.SPP, the following point arises for consideration:
Whether there was sufficient evidence before the trial Court to convict the accused for offence punishable under Section 12 of POCSO Act, 2012 ?
10. Though the accused was charged for offences punishable under Sections 336, 354, 504, 506 of IPC, Sections -9- NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR 3(1) (x) (xi) of SC/ST Act and Section 12 of POCSO Act, 2012, the trial Court had convicted the accused for offence punishable under Section 12 of POCSO Act, 2012. There is no appeal preferred by the prosecution against the acquittal of the accused against other offences.
11. An offence punishable under Section 12 of POCSO Act, 2012 is stated to have been committed when a person with a sexual intent has done the following acts:
"(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person;
or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefore."
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NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR
12. In the instant case, PW.1 in her complaint, merely stated that the accused was teasing her daughter. Neither the prosecution nor PW.1 has elaborated as to what exactly were the words used or acts done by the accused to verify whether it falls within the meaning of sexual offence punishable under Section 12 of POCSO Act, 2012. It is relevant to note that PW.1 did not lodge any complaint against the accused for the alleged act of teasing the victim girl. However, after many days when the accused allegedly pelted stones at the house of PW.1, the instant complaint was filed. Therefore, there is a delay in lodging a complaint for the offence punishable under Section 12 of POCSO Act, 2012. There is no palpable evidence to prove the commission of offence punishable under Section 12 of POCSO Act, 2012. PW.3 in her evidence tried to improve the case by contending that the accused was winking at her, make signs, pelting stones, etc. This however was not mentioned in her complaint at Ex.P.1 or in her evidence before the Court. Therefore, it was not proper to invoke Section 12 of POCSO Act, 2012 in the facts and circumstances of the case. The trial Court has blindly accepted the evidence of PW.3 to convict the accused for an offence punishable under Section 12 of POCSO
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NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR Act, 2012. This apart, no credible evidence was produced before the Court to establish that PW.3 was a child as defined under the POCSO Act, 2012. The procedure for determination of age by the Special Court is set out in Section 34 of the Act, 2012. It was incumbent upon the Special Court to determine the age of the child as provided under Section 94 of the Juvenile Justice Act, more particularly in the light of the evidence adduced by the victim girl that she was married 1½ years prior to she recording her evidence before the trial Court. The entries in the records maintained at a school are not conclusive proof to establish the age of the victim girl. The prosecution ought to have been taken sufficient steps to prove the age of the victim girl which unfortunately is not done in the instant case.
13. In view of the above, the prosecution has miserably failed to prove that the victim girl was a child as on the date of the alleged offence. This apart, the offence that was allegedly committed by the accused on 30.11.2013 had nothing to do with the offence punishable under Section 12 of POCSO Act, 2012. The delay in lodging the complaint for the alleged offence
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NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR punishable under Section 12 of POCSO Act, 2012 is fatal to the case of the prosecution and hence, the judgment of the trial Court convicting the accused for offence punishable under Section 12 of POCSO Act, 2012 is improper and deserves to be set-aside.
14. In view of the above, the point for consideration framed by this Court is answered in favour of the accused and it is held there was no sufficient material before the Court to convict the accused for an offence punishable under Section 12 of POCSO Act, 2012 and thus, the following:
ORDER
(i) The criminal appeal is allowed.
(ii) The impugned judgment of conviction of the accused for offence punishable under Section 12 of POCSO Act, 2012 and the consequent sentence imposed on the accused by the trial Court in Spl.C.No.35/2014 is set-aside and the accused is acquitted of the offence punishable under Section 12 of POCSO Act, 2012.
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NC: 2025:KHC-D:7407 CRL.A No. 100214 of 2016 HC-KAR Any bail bonds furnished by the accused shall stand discharged.
Sd/-
(R.NATARAJ) JUDGE RH Ct:vh List No.: 1 Sl No.: 4