Karnataka High Court
Vijaykumar S/O Doulappa Noolinavar vs The State on 23 July, 2025
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2025:KHC-K:4189-DB
CRL.A No. 200073 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JULY, 2025
PRESENT
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS. JUSTICE K S HEMALEKHA
CRIMINAL APPEAL NO.200073 OF 2019
BETWEEN:
VIJAYKUMAR
S/O DOULAPPA NOOLINAVAR,
AGE: 25 YEARS, OCC: COOLIE,
R/O: VILLAGE, GANAPUR,
TQ: CHINCHOLLI,
DIST: KALABURAGI - 585 301.
...APPELLANT
(BY SRI NANDKISHORE BOOB, ADVOCATE)
Digitally AND:
signed by
LAKSHMI T 1. THE STATE THROUGH
Location: MIRIYAN POLICE STATION
High Court
of Karnataka NOW REPRESENTED BY
ADDL. SPP HCKB AT KALABURAGI - 585 101.
2. NAGAPPA
S/O MALAKAPPA
AGE: 51 YEARS, OCC: AGRI,
R/O: GANAPUR,TQ: CHINCHOLI,
DIST: KALABURAGI.
...RESPONDENTS
(BY SRI SIDDALING S. PATIL, ADDL SPP, FOR R1;
R2 IS SERVED )
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NC: 2025:KHC-K:4189-DB
CRL.A No. 200073 of 2019
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C 1973, PRAYING TO PLEASED TO CALL FOR THE
RECORDS OF THE COURTS BELOW, AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE AND
FINE IMPOSED ON THE APPELLANT/ACCUSED BY THE HON'BLE
II ADDITIONAL SESSIONS JUDGE, KALABURAGI, IN SPECIAL
CASE(POCSO)NO.17/2018, DATED:17.01.2019, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 376(2)(N), 366-A,
344, OF IPC & SECTION 6 OF POCSO ACT, 2012, IN VIEW OF
THE REASONS AS STATED ABOVE, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
AND
HON'BLE MRS. JUSTICE K S HEMALEKHA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ) The accused/convict has preferred this appeal against the judgment and order dated 17.01.2019 passed by the Court of II Additional Sessions Judge, Kalaburagi, in Special Case (POCSO) No.17/2018, whereby he is convicted and sentenced for the offences punishable under Sections 366-A, 344, 376(2)(n) of Indian Penal Code (for -3- NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR short 'IPC') and Section 6 of Protection of children from Sexual Offences Act, 2012( for short 'POCSO Act').
2. It is the case of prosecution that, the accused on 10.09.2017, in the afternoon took the minor girl (victim) to his house at Ganapur, inducing that he will marry her and committed rape on her and once again on 16.09.2017 at about 02.00 p.m., committed rape on her and on 21.11.2017 at 12.00 noon, when she had been to Nala at Ganapura Village, kidnapped her by taking her out of the lawful guardianship of her parents with intent that she may be compelled to marry him against her will and she may be forced or seduced to illicit intercourse and after kidnapping, wrongfully confined her in the house of one Devidas (PW4) at Shivapur Galli, Humanabad and repeatedly committed rape on her till 20.01.2018 and thereby committed the charged offences.
3. Charges were framed against the accused for the offence punishable under Sections 366-A, 344, 376 -4- NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR (2)(n) of IPC and Section 5(j)(ii) and (l) of the POCSO Act, 2012, punishable under Section 6 of the said Act.
4. The prosecution in all examined 16 witnesses and got marked 21 documents and MO's 1 to 3, to establish the charges leveled against the accused.
5. The defence of the accused was one of total denial, however, he did not lead any evidence on his behalf.
6. The learned session judge, vide impugned judgment and order held the accused guilty of the offences under Section 366A, 344, 376(2)(n) of IPC and Section 6 of the POCSO Act, 2012.
7. We have heard the learned counsel for the appellant and the learned Additional SPP for the State. Perused the evidence and material on record.
8. The law was set into motion by the victim's father-PW2. In his complaint marked as Ex.P7, he has stated that, on 20.11.2017 he had been to Tandur Village -5- NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR and at that time his wife and children were present in the house. On 21.11.2017 at about 05.00 p.m., when he returned to the house, he noticed his daughter(victim) was missing and when he enquired with his wife, she informed that at about 12.00 noon, the victim had been to the Nala to wash the clothes and thereafter she did not return. A missing complaint was lodged on 22.11.2017, suspecting that the accused Vijay Kumar Son of Dulappa might have kidnapped his daughter.
9. On receiving the complaint - Ex.P7 from PW2, a missing case was registered by ASI-PW15 and he forwarded the FIR- Ex.P21 to the jurisdictional Court. The investigation was then transferred to the PSI - PW13 and on 20.01.2018, on tracing the victim, she was produced before him. He recorded the statement of the victim and sent her for medical examination. Victim's statement was recorded under Section 164 of Cr.PC. Further, on 22.01.2018, the accused was produced before him. He conducted part of investigation and transferred the -6- NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR investigation to CPI-PW14, who sent seized articles for FSL examination. Further investigation was taken over by PW16, who after completion of investigation filed the charge sheet.
10. According to the prosecution, the victim was a minor aged about 17 years and the accused by threatening, kidnapped her on 21.11.2017, when she had been to Nala in Ganapur village, for washing the clothes and then he took her to the house of Devidas(PW4), wherein he repeatedly committed penetrative sexual assault on her. It is also the case of prosecution that even prior, on 10.09.2017 and 16.09.2017, accused took the victim to his house and committed rape on her.
11. In order to prove the age of the victim, the prosecution has mainly relied on the school certificate issued by PW12 namely the Headmaster of Bambalagi GHPS. The school certificate is marked as Ex.P19, as per which the date of birth of the victim is 01.06.2000. -7-
NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR Hence it is contended by the learned Additional SPP that, in view of the said document and the evidence of PW12, the prosecution has proved that the victim was aged below 18 years as on the date of the incident. It is further contended that the evidence of PW2 and PW3 would clearly reveal that the victim girl had studied upto 8th Standard in the Government High School at Bombalagi Village, which is not seriously disputed by the defence and therefore, the Trial Court has rightly come to the conclusion, based on the above evidence that the victim was a minor.
12. After the victim was traced on 20.01.2018, she was subjected to medical examination by the doctor-PW8. We have Perused the evidence of PW8, who has deposed that she was working as junior resident doctor in Gynecology Department at GIMS Kalaburagi. On 20.01.2018 at 06.15 p.m., she examined the victim girl, who informed that she was in relationship with Vijay Kumar her neighbor since one year and at about four -8- NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR months back, he called her to his home and forcibly had sexual intercourse by tying her mouth with a Dupatta. She did not inform the matter to her family. Later, after one month she missed her periods and even thereafter they had sexual intercourse and the boy had assured to marry her.
13. PW8 has stated that the victim was carrying 11 weeks one day old fetus and according to the radiologist the victim was aged more than 18 years and according to the dentist she was below 18 years. She issued the preliminary medical certificate - Ex.P13, pending receipt of the FSL report and after receipt of the FSL report, issued final medical certificate as per Ex.P14. Further, as per FSL report at Ex.P15, there was no evidence of seminal stains in Item Nos.1 to 7 and 10 and no spermatozoa in Item Nos. 8 and 9. She has opined that there was no evidence of recent sexual act and age of the victim was below 18 years, according to the dentist and above 18 years, according to the radiologist. Further, due to lapse of time, -9- NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR spermatozoa was not detected in cervical smear and vaginal smear and the pregnancy of the victim shows that she had participated in sexual act.
14. From the above evidence on record, we notice that, as per school certificate issued by PW12 - the headmaster of the school, wherein the victim studied, date of birth of the victim is 01.06.2000 and in that event, the victim was aged about 17 years 5 months at the time of incident, but as per the radiologist, the victim was aged more than 18 years and again as per the dentist the victim was below 18 years.
15. PW12 has stated that he has issued the certificate-Ex.P19 on the basis of the admission register. The Trial Court perusing the original admission register brought by the said witness, wherein the date of birth was mentioned as 01.06.2000, accepted the said document and held that the victim was a minor aged below 18 years as on the date of incident.
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16. According to the prosecution, the victim studied upto 8th standard in Government High School at Bombalagi Village. PW12 in his cross examination has stated that on the basis of the admission form filled by the parents, he has mentioned the date of birth. He further stated that at the time of admission, date of certificate was not produced. PW2 in his cross examination has stated that his mother admitted the victim to school at Bombalagi Village and he does not know what was the date of birth of the victim given by his mother at the time of admission. From the evidence of the victim's mother - PW3, it is seen that the victim was earlier studying in Mannaekhalli and she was staying in her mother's house at Bombalagi village and when her mother died, she was studying in 9th Standard.
17. From the above evidence on record, it is clear that, at the time of admission of the victim to the school, there was no birth certificate produced and further that it was not PW2 and PW3 who admitted the victim to the
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR school on the other hand it was the mother of PW2 i.e., grand mother of the victim admitted her to school at Bombalagi Village. It is contended by the learned counsel for the appellant that in Ex.P19 the name shown is not that of the victim and therefore, the prosecution has concocted the said document for the purpose of present case.
18. The prosecution has conducted medical examination of the victim and we find from the evidence of PW8 - doctor that the victim was subjected to both dental and radiological examination for determination of her age and the report of the said examination are contrary to each other. As per the dentist, the victim was below 18 years, whereas according to the radiologist report, the victim was aged above 18 years. Hence, it cannot be said that the prosecution has been able to establish beyond reasonable doubt that the victim girl was a minor aged below 18 years as on the date of incident.
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19. The Hon'ble Apex Court in the case of Vinod Katara vs. State of Uttar Pradesh, reported in 2022 SCC Online SC 1204 in Para 57 and 60, as held as under:
"57. The bone ossification test (hereinafter "ossification test") is a test that determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. the most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive.
60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681: (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bhiar, (2008) 15 SCC 223: (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt."
20. It is further held that the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joint is conducted.
21. In the instant case, considering the evidence of P.W.8 wherein she has stated that as per Radiologist Report, the age of the victim was more than 18 years, we are unable to accept the contention of the learned Additional State Public Prosecutor that the prosecution has
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR proved its case beyond reasonable doubt that the victim was a minor aged below 18 years at the time of incident.
22. It is contended by the learned Additional State Public Prosecutor that even accepting that victim was not a minor, in view of her clear evidence wherein she has supported the case of prosecution and stated that the accused has kidnapped her by force and then confined her in the house of P.W.4 at Shivapur Galli and the fact that she was found to be pregnant, clearly establishes that the accused has committed rape on the victim against her will.
23. The victim is examined as P.W.1. It is pertinent to mention that according to the prosecution she was kidnapped by the accused on 21.11.2017 and traced on 20.01.2018 and all along she was detained by the accused and subjected to penetrative sexual assault. The prosecution has also alleged that even prior to the said incident, on two occasions i.e., on 10.09.2017 and 16.09.2017, the accused by luring the victim, took her to
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR his house and committed rape on her. From Ex.P.7, we do not find any allegation against the accused that he committed rape on the victim on earlier two occasions. As per prosecution, after the victim was traced, she revealed to her parents about the earlier incident. However, P.W.3 i.e., victim's mother has categorically stated that the victim has not narrated about the earlier incident. She was treated hostile by the prosecution and cross-examined by the learned Public Prosecutor. She has out-rightly denied the suggestion made by the Prosecutor about the victim having informed her about the incident that took place on 10.09.2017 and 16.09.2017. Hence, a serious doubt arises in the mind of the Court about the previous incidents. Prosecution has not established the same beyond reasonable doubt. The evidence of P.W.3, none other than the mother of the victim demolishes the said charges leveled against the accused.
24. It is contended by the learned counsel for the appellant that the victim was neither forcibly taken by the
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR accused nor she was threatened at any point of time and the fact that she remained with the accused for about two months itself goes to show that she had willingly accompanied the accused. He further contended that the ingredients of Section 366-A of IPC is also not attracted, since it is not the case of the prosecution that the victim was kidnapped by the accused with a knowledge or intention that she may be forced to have sexual intercourse with any other person. In support of his contention, the learned counsel has relied on the judgment of the Hon'ble Apex Court reported in (2018) 3 SCC (Cri.) 391 in the case of Kavita Chandrakant Lakhani Vs. State of Maharashtra and the judgment of the Apex Court reported in 2018 (9) SCC 248 in the case of Rajak Mohammad Vs. State of Himachal Pradesh.
25. In Kavita Chandrakant Lakhani (supra), the Apex Court has held that:
" In order to constitute the offence of "abduction", a person must be carried off illegally by force or
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse.
11. Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the court cannot hold the accused guilty and punish him under Section 366 IPC."
26. In the instant case, we have held the prosecution has failed to establish that the victim was a minor as on the date of incident. The ingredients of the offence under Section 366-A of IPC are not attracted. According to the prosecution, the accused by force and posing threat to the victim, kidnapped her, when she had gone to wash the clothes near the Nala.
27. A perusal of the evidence of victim - P.W.1 goes to show that the accused who was also a resident of
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR the same village was residing in a house situated about 4-5 houses away from her house. He used to visit her house and talk to her father and he was also talking to the victim. She has deposed that at about 12.00 noon, when she was washing the clothes near the stream, accused came and by assuring her that he will marry, called her to go out of the village, but she refused. The accused threatened to kill her parents and brother and forcibly took her to Mannaekhalli, District Bidar. Further, she has stated that from there the accused took her to Kalaburagi Railway Station and from there to Bangalore and kept her in a room of his friend for 4-5 days. From Bangalore, he took her to Humnabad and kept her in a rented home for one and half month. She has not stated that even after taking her forcibly by posing threat, the accused continued to threaten her. In her cross-examination, she has admitted that while going from Gulbarga to Bangalore, she did not raise alarm and she and accused were alone residing in the room in Bangalore and nearby there were
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR other rooms and people were also residing in those rooms. Further, she did not raise any alarm in Bangalore. Further, in Humnabad Bus-stand and Bangalore bus-stand she has not raised alarm.
28. The Learned Additional State Public Prosecutor contended that because of the threat given by the accused, victim did not raise any alarm. We are unable to accept the said contention, considering the fact that the victim traveled with the accused to various places and stayed with him for about one and half month. She had ample opportunity to raise alarm and complain to others. It is relevant to refer to para No.3 of the judgment in Rajak Mohammad (supra), which is extracted hereunder:
"3. Apart from the above, from the evidence of Bimla Devi (PW 7) it appears that the prosecutrix has remained with the appellant-accused for about two days in Kullu in the house of PW 7 and that there were about 60-70 houses in the village. The materials on record also indicate that the
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR prosecutrix remained in the company of the appellant-accused for about 12 days until she was recovered and that she had freely moved around with the appellant-accused in the course of which movement she had come across many people at different points of time. Yet, she did not complain of any criminal act on the part of the appellant- accused appellant."
29. In the above referred decision, the Apex Court under similar circumstances wherein the prosecutrix remained with the accused/appellant for a considerable period of time and noticing that she had freely moved around with the accused and she had come across many people at different points of time but did not raise alarm or complained to anyone, held that the possibility of prosecutrix being a consenting party cannot be altogether ruled out. In the case on hand, the said conclusion is more probable in the light of the history furnished by the victim before the doctor-PW8 that, she was in a relationship with the accused for more than one year.
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30. The evidence of the victim - P.W.1 does not inspire the confidence of this Court to hold that she was taken forcibly by the accused by posing threat and she was confined and subjected to rape against her will. Moreover, P.W.4, the owner of the house, where the victim and the accused stayed has deposed in his evidence that the accused and the victim girl stayed in the room for more than one month and without intimation both of them left the room leaving their belongings. In the cross- examination, he has stated that during their stay for about one month, the victim has not informed him that the accused was causing trouble to her.
31. For the reasons stated supra, the judgment of conviction and order of sentence passed by the trial Court convicting and sentencing the accused/appellant for offences punishable under Section 366-A, 344, 370(2)(n) of IPC and Section 6 of POCSO Act, 2012 is liable to be set aside. Accordingly, we pass the following:
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NC: 2025:KHC-K:4189-DB CRL.A No. 200073 of 2019 HC-KAR ORDER
i) The judgment and order of conviction and sentence dated 17.01.2019 passed by the II Addl. Sessions Judge, Kalaburagi in Special Case (POCSO) No.17/2018 is hereby set aside.
ii) The accused/appellant is acquitted of the offences punishable under Sections 366-A, 344, 376(2)(n) of IPC and Section 6 of POCSO Act, 2012.
iii) He shall be released from the prison, if not required in any other case.
iv) The fine amount, if any deposited, shall be returned to the accused/appellant.
Sd/-
(MOHAMMAD NAWAZ) JUDGE Sd/-
(K S HEMALEKHA) JUDGE TMP,THM,BL/List No.: 1 Sl No.: 18/CT:NI