Karnataka High Court
Nizamuddin Nadaf S/O Nabisab Nadaf vs The State Of Karnataka on 28 August, 2025
-1-
NC: 2025:KHC-K:4942
CRL.A No. 200185 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO.200185 OF 2021
(374(Cr.PC)/415(BNSS))
BETWEEN:
NIZAMUDDIN NADAF S/O NABISAB NADAF,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O. JAI BHAVANI NAGAR, TQ. SINDAGI,
DIST. VIJAYAPURA-586 123.
...APPELLANT
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY ADDL. SPP,
Digitally signed
by RAMESH HIGH COURT OF KARNATAKA,
MATHAPATI KALABURAGI BENCH-585107,
Location: HIGH (THROUGH SINDAGI P.S.
COURT OF DIST. VIJAYAPURA-586 123).
KARNATAKA
2. EARANNA S/O KALAPPA BADIGER,
AGE:59 YEARS, OCC: CARPENTER,
R/O. SINDAGI, NEAR MAIBOOB SUBHANI DARGA,
TQ. SINDAGI, DIST. VIJAYAPURA-586 123.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1;
R2 SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) OF CR.P.C PRAYING TO ADMIT THIS APPEAL AND SET
-2-
NC: 2025:KHC-K:4942
CRL.A No. 200185 of 2021
HC-KAR
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED: 16-08-2021 PASSED BY THE HON'BLE
ADDL. SESSIONS JUDGE: FTSC-I (POCSO) AT VIJAYAPUR IN
SPECIAL CASE (POCSO) NO.9/2016 AND ACQUIT THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTION 363 OF IPC & UNDER SECTION 12 OF POCSO ACT-
2012 AND UNDER SECTION 18 OF POCSO ACT R/W 511 OF
IPC.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE M G UMA) The accused in Special Case (POCSO) No.9/2016, on the file of learned Additional Sessions Judge/FTSC-I (POCSO), Vijayapur (for short 'Trial Court'), is impugning the judgment of conviction and order of sentence dated 16.08.2021, convicting him for the offences punishable under Section 363 of Indian Penal Code, 1860 (for short 'IPC') and under Sections 12 and 18 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') read with Section 511 of IPC and sentencing to undergo rigorous imprisonment for a period of seven years -3- NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR and to pay fine of Rs.25,000/- for the offence punishable under Section 363 of IPC; to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/- for the offence under Section 11 punishable under Section 12 of the POCSO Act and to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.25,000/- for the offence punishable under Section 18 of POCSO Act read with Section 511 of IPC, with default sentences.
2. Facts of the case in brief are that, the victim lodged the first information with Sindagi police against the accused alleging commission of the offences punishable under Sections 323, 354, 366A read with Section 511 of IPC, stating that the accused had tried to kidnap her on his motorcycle bearing registration No.KA-28/Y-8026 with an intention to commit sexual assault. When she jumped out of the motorcycle and tried to escape from the spot, the accused slapped her. The investigation was undertaken and charge sheet came to be filed for the -4- NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR offences punishable under Sections 323, 366A read with Section 511 of IPC and under Section 18 of the POCSO Act. The charges were framed by the Trial Court for the offences punishable under Sections 366A and 323 read with Section 511 of IPC and also under Section 18 of the POCSO Act.
3. The accused had appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PW.1 to PW.9 and got marked Exs.P1 to P8 in support of its contention. The accused has denied all the incriminatory materials available on record but has not led any evidence in support of his defence. But got marked Ex.D1 and D2 during the cross- examination of PW.3 and PW.4. The Trial Court after taking into consideration all these materials on record came to the conclusion that, the prosecution is successful in proving the guilt of the accused and accordingly, passed the impugned judgment of conviction and order of -5- NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR sentence as stated above. Being aggrieved by the same, the appellant/accused is before this Court.
4. Heard Sri Shivanand V. Pattanashetti, learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for respondent No.1 - State. Respondent No.2 though served remains unrepresented. Perused the materials on record, including the Trial Court records.
5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the judgment of conviction and order of sentence passed by the Trial Court suffers from infirmities and calls for interference by this Court?"
My answer to the above point is in the 'Affirmative', for the following:
-6-
NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR REASONS
6. The victim is said to be aged 13 years. She lodged the first information against the accused alleging that, he has tried to kidnap her on his motorcycle bearing registration No.KA-28/Y-8206 with an intention to commit sexual assault. When she jumped out of the motorcycle and tried to run away from the spot, the accused caught hold and slapped her and thereby committed the offences punishable under Sections 323, 354, 366A read with Section 511 of IPC. After investigation, charge sheet came to be filed for the offences punishable under Sections 323, 366A and 511 of IPC and under Section 18 of the POCSO Act. The charges were framed as stated above.
7. To prove its contention, the prosecution examined the victim girl as PW.1. Initially she has stated that, her date of birth is 01.06.1999 and was studying in 8th standard and later she stopped her studies. On 17.05.2014 at 4.30 p.m., accused came on a motorcycle -7- NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR and asked to accompany him. When he promised to drop her near her house, she accompanied him on the motorcycle but when the accused did not stop the motorcycle near her house, she jumped out of the motorcycle with fear. The accused caught hold her, slapped her and gagged her mouth with the veil and again took her on his motorcycle with an intention to commit sexual assault. Since the friends of her elder brother came following them, the accused dropped the victim girl and went away. Therefore, she lodged the first information with Sindagi police as per Ex.P1. The police on the basis of the first information, have drawn the mahazar. Subsequently, witness turned hostile and has not supported the case of the prosecution.
8. PW.2 is the doctor, who examined the victim girl on the very same day and issued the wound certificate as per Ex.P3. The witness stated that, the victim had not sustained any external injury and she was quite normal. Ex.P3 is the wound certificate, according to which, the -8- NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR victim was examined on 17.05.2014 and no external injuries were found. During cross-examination, witness has stated that if a person is slapped with force and mouth is gagged with veil forcibly, there will be marks on the face, but he had not noticed any such marks on the victim girl. PW.3 is the mother of the victim girl and she is a hearsay witness. Even though initially she has stated about the incident as heard by her from the victim girl, subsequently, she has not supported the case of the prosecution. PW.4 is the father of the victim girl. He has also initially deposed by supporting the victim girl but later turned hostile to the case of the prosecution. PW.5 and PW.6 are the eyewitnesses, but they have not supported the case of the prosecution. Even though PW.7 and PW.8 are the mahazar witnesses, they have also not supported the case of the prosecution. PW.9 is the Investigating Officer, who registered the FIR and filed the final report after investigation.
-9-
NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR
9. From these materials on record, even though serious allegations are made against the accused for having committed the offence, there is absolutely no material to support the same. PW.2 - Doctor, who examined the victim girl on the very same day, found no external injuries on the body of the victim girl. He states that, the victim girl was normal on that day. The version of the victim girl at the initial stage that, she jumped out of the moving motorcycle and was slapped by the accused twice, she was gagged with the veil and she was again taken on the motorcycle, cannot be believed in the absence of any medical evidence. Moreover, PW.1, PW.3 and PW.4 being the victim girl and her parents even though deposed in support of the case of the prosecution to some extent, later turned hostile. PW.5 and PW.6 who were cited as eyewitnesses, have not supported the case of the prosecution. Under these circumstances, I am of the opinion that the prosecution has not proved the guilt of the accused beyond reasonable doubt. The benefit of
- 10 -
NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR doubt will have to be extended to the accused and he is entitled to be acquitted.
10. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The Trial Court was swayed away by the half hearted evidence given by the victim girl, ignoring the fact that PW.1, PW.3 and PW.4 have completely turned hostile at later stage. Even the medical evidence is against the prosecution, which does not suggests commission of any of the offences. Therefore, I am of the opinion that the impugned judgment of conviction and order of sentence passed by the Trial Court is liable to be set aside. Accordingly, I answer the above point in the affirmative and proceed to pass the following:
ORDER
(i) The appeal is allowed;
(ii) The judgment of conviction and order of sentence dated 16.08.2021 passed in Special Case (POCSO) No.9/2016, on the
- 11 -
NC: 2025:KHC-K:4942 CRL.A No. 200185 of 2021 HC-KAR file of the learned Additional Sessions Judge/FTSC-I (POCSO), Vijayapur, is hereby set aside.
(iii) The appellant is acquitted of the offences punishable under Section 363 of IPC and under Sections 11, 12 and 18 of the POCSO Act read with Section 511 of IPC.
(iv) Bail bond of the accused, if any, and that of his sureties shall stand cancelled.
(v) The fine amount deposited, if any, is ordered to be refunded to the appellant on due identification.
Office is directed to send back the Trial Court records along with copy of this judgment for information and for necessary action.
Sd/-
(M G UMA) JUDGE SRT/MSR List No.: 1 Sl No.: 34 CT:PK