Karnataka High Court
Rajkumar Walikar S/O Dattatreya ... vs The State Of Karnataka on 8 September, 2025
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NC: 2025:KHC-K:5222
CRL.A No. 200162 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 200162 OF 2021
(374(Cr.PC)/415(BNSS))
BETWEEN:
RAJKUMAR WALIKAR S/O DATTATREYA WALIKAR,
AGE: 27 YEARS, OCC: DRIVER,
R/O. DASUR, TQ. INDI,
DIST. VIJAYAPURA-586101.
...APPELLANT
(BY SRI R. S. LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally signed by THROUGH POLICE, CHADCHAN POLICE STATION,
RAMESH MATHAPATI
Location: HIGH TQ. INDI, DIST. VIJAYAPURA,
COURT OF
KARNATAKA REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
BENCH AT KALABURAGI-585 107.
2. VICTIM REPRESENTED BY HER
FATHER/COMPLAINANT,
SRI TULASIDAS S/O SUBBARAO PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. DASUR, TQ. INDI, DIST. VIJAYAPUR-586 101.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1;
R2 SERVED)
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NC: 2025:KHC-K:5222
CRL.A No. 200162 of 2021
HC-KAR
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
PRAYING TO ADMIT THE APPEAL, SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND SENTENCE DATED:
26.07.2021 PASSED BY THE ADDL. SESSIONS JUDGE FTSC-I
(POCSO) AT VIJAYAPURA IN SPECIAL CASE (POCSO)
NO.28/2016 ON ITS FILE, THEREBY CONVICTING THE
APPELLANT FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 366, 344 OF IPC AND SECTION 11 AND 12 OF
POCSO ACT, 2012, ACQUIT THE APPELLANT OF ALL CHARGES
IN SPECIAL CASE (POCSO) NO.28/2016 ON THE FILE OF ADDL.
SESSIONS JUDGE FTSC-I (POCSO) AT VIJAYAPURA.
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 appellant being the accused in Special Case (POCSO) No.28/2016 on the file of the learned Additional Sessions Judge, FTSC-I (POCSO), Vijayapura (for short, 'the Trial Court'], is impugning the judgment of conviction and order of sentence dated 26.07.2021, convicting him for the offences punishable under Sections 366, 344 of the Indian Penal Code, 1860 [for short, 'the IPC'] and Section 11 punishable under Section 12 of the Protection of Children from Sexual Offences Act, 2012 [for short, 'the -3- NC: 2025:KHC-K:5222 CRL.A No. 200162 of 2021 HC-KAR POCSO Act'] and sentencing to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.25,000/- for the offence punishable under Section 366 of IPC; to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/- for the offence punishable under Section 344 of IPC; and 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, with default sentences, while acquitting him for the offences punishable under Sections 376(2)(n) of IPC and Section 5(1) punishable under Section 6 of the POCSO Act.
2. Facts of the case in brief are that, PW-4 being the father of the victim girl, lodged the first information as per Ex.P-5. The informant stated in the first information that, about a year ago, she discontinued her studies after studying 6th standard. The accused was teasing and harassing her since about a year, and the informant had advised him to behave properly. On 06/07.05.2016 he -4- NC: 2025:KHC-K:5222 CRL.A No. 200162 of 2021 HC-KAR noticed that, the victim girl was not in the house. On enquiry he learnt that, the accused had taken her on his motor cycle. Therefore, he requested the police to register the case and to trace his daughter and to initiate action against the accused for having kidnapped the minor girl aged 15 years. Accordingly, FIR came to be registered and investigation was undertaken. It is stated that, the victim and accused were found together on 22.05.2016. The victim was rescued and accused was apprehended. After investigation, charge sheet came to be filed for the offences punishable under Sections 363(A), 376, 344 of IPC and Sections 3(a), 4, 6, 12 of the POCSO Act.
3. The accused had appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs-1 to 24 and got marked Exs.P- 1 to P-37. The accused has denied all the incriminating materials available on record, but had not led any evidence in support of his defence. However, Exs.D-1 to D-6 were marked during cross-examination of the -5- NC: 2025:KHC-K:5222 CRL.A No. 200162 of 2021 HC-KAR prosecution witnesses. The Trial Court, after taking into consideration all these materials on record, came to be conclusion that, the prosecution has not proved the guilt of the accused for the offence punishable under Section 376 of IPC and under Sections 3, 4 and 5 of POCSO Act. However, it held that the prosecution is successful in proving guilt of the accused for the offences punishable under Sections 366, 344 of IPC and Section 11 punishable under Section 12 of the POCSO Act. Accordingly, he was convicted and sentenced as stated above. Being aggrieved by the same, the accused is before this Court.
4. Heard Sri R.S. Lagali, learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for respondent No.1 - State. Respondent No.2 though served, has remained un- represented. Perused the materials on record, including the Trial Court records.
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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:
REASONS
6. It is the contention of the prosecution before the Trial Court that, the accused has kidnapped the victim, who is a minor aged 15 years, with an intention to marry her, thereby committed the offence punishable under Section 366 of IPC. She was wrongfully confined for more than 10 days and thereby he committed the offence punishable under Section 344 of IPC. Moreover, the accused had committed sexual harassment, and thereby committed the offence under Section 11 punishable under Section 12 of the POCSO Act. The Trial Court placed -7- NC: 2025:KHC-K:5222 CRL.A No. 200162 of 2021 HC-KAR reliance on the evidence of PW-4 - the informant, being the father of the victim girl, PW-5 - the victim girl herself, and PW-7 - the mother of the victim girl, and PW-14 - the doctor who examined the victim girl, to convict the accused. PWs-1, 2, 3, 6 and 11 being the mahazar witnesses, have not supported the case of the prosecution. PWs-9 and 10 are the villagers who advised the accused before commission of the offence. PW-8 being the scribe of the complaint, has not supported the case of the prosecution. PW-13, the owner of the motor cycle used by the accused to kidnap the victim girl has also not supported the case of the prosecution. PW-4 - the father of the victim, PW-5 - the victim, PW-7 - the mother of the victim have supported the case of the prosecution. Their version is to be considered in the light of the documents that are placed on record.
7. Ex.P-7 is the statement of the victim recorded by the learned Magistrate under Section 164 of Cr.P.C. which was recorded on 24.05.2016 as it is the case of the -8- NC: 2025:KHC-K:5222 CRL.A No. 200162 of 2021 HC-KAR prosecution that on 22.05.2016 the victim was rescued and subjected for medical examination. In her statement before the learned Magistrate, the victim stated that, she was in love with the accused since about one year. She wanted to marry him, but her mother had threatened that she would die if she marries the accused. She wants cordial relations both with her parents as well as the accused. On the date of the incident she went with the accused on the motor cycle to Sangola in Maharashtra, and stayed in the house of uncle of the accused for about 8 to 10 days. The accused has not committed any act as alleged.
8. The earliest version of the victim girl recorded before the learned Magistrate as per Ex.P-7 discloses that, the victim was in love with accused and she wanted to marry him. Since the parents were opposing such relation and used to threaten to die if she marries the accused, she went with the accused on the motor cycle. -9-
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9. PW-14 is the doctor who examined the victim girl. Ex.P-21 is the victim Medical Report, according to which, the informant - the father of the victim had accompanied her. There was no abnormality on physical examination of the victim. There was no genital injury. It is pertinent to note that, the doctor PW-14 has not noted anything about the hymen and vagina except saying that there were no genital injuries. Ex.P-22 is the final opinion, according to which, there are no signs suggestive of penetration. The presence of seminal stains and spermatozoa were not detected in any of the articles. From Exs.P-21 and P-22, it cannot be said that accused has committed any acts of penetrative sexual assault as alleged.
10. It is the contention of the prosecution that, accused has committed sexual harassment punishable under Section 12 of the POCSO Act. As I have already referred to the statement of the victim under Section 164 of Cr.P.C. recorded immediately after her rescue, which
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NC: 2025:KHC-K:5222 CRL.A No. 200162 of 2021 HC-KAR discloses that, the accused has not committed any such acts. Strangely, PW-5 - the victim girl has supported the case of prosecution when she was examined before the Court. There is absolutely no reason as to why she has not made any allegations against the accused when her statement was recorded by the learned Magistrate immediately after her rescue. She has gone to the extent of saying that, the accused had committed forcible penetrative sexual assault which is not supported by the medical records. Under such circumstances, I am of the opinion that, the victim might have supported the case of the prosecution at the instance of her parents. Since there are no materials to support her version, and it is against her statement under Section 164 of Cr.P.C., I am of the opinion that, serious doubt arises about the case made out by the prosecution. The benefit of such doubt is to be extended to the accused, and he is entitled to be acquitted.
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11. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The Trial Court, even though acquitted the accused for the offences punishable under Section 376 of IPC read with Section 6 of POCSO Act, proceeded to convict the accused for the offences punishable under Sections 366, 344 of IPC and Section 11 punishable under Section 12 of the POCSO Act, ignoring Ex.P-7 the statement of the victim under Section 164 of Cr.P.C., Exs.P-21 and P-22 the medical records, which also falsifies the case made out by the prosecution. Therefore, the impugned judgment of conviction and order of sentence is liable to be set aside. In view of the above, I answer the above point in the 'affirmative' and proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment of conviction and order of sentence dated 26.07.2021 passed in Spl.Case (POCSO) No.28/2016 on the file
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NC: 2025:KHC-K:5222 CRL.A No. 200162 of 2021 HC-KAR of the learned Additional Sessions Judge, FTSC-I (POCSO), Vijayapura is set aside.
(iii) Consequently, the appellant/accused is acquitted of the offences punishable under Sections 366 and 344 of IPC and Section 11 punishable under Section 12 of the POCSO Act.
(iv) Bail bond, if any, of the appellant and that of his sureties stand cancelled.
(v) Fine amount, if any, deposited is ordered to be refunded to the appellant/accused on due identification.
Registry is directed to send back the Trial Court records along with copy of this judgment for information and needful action.
Sd/-
(M G UMA) JUDGE SWK List No.: 1 Sl No.: 22 Ct:pk