Karnataka High Court
Sangamesh @ Mahesh S/O Babu Rao Donagao vs The State Through on 12 January, 2026
-1-
NC: 2026:KHC-K:177-DB
CRL.A No. 200169 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI
DATED THIS THE 12TH DAY OF JANUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
CRIMINAL APPEAL NO. 200169 OF 2016
(374(Cr.PC)/415(BNSS)
BETWEEN:
SANGAMESH @ MAHESH
S/O BABU RAO DONAGAO,
AGE: 21 YEARS,
R/O: DONAGAPUR,
TQ: BHALKI.
...APPELLANT
(BY SRI NANDKISHORE BOOB, ADVOCATE)
AND:
THE STATE THROUGH
Digitally signed
by SACHIN BHALKI TOWN POLICE STATION,
Location: HIGH NOW REPRESENTED BY
COURT OF ADDL. S.P.P. HCKB AT KALABURAGI.
KARNATAKA
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 05.10.2016 OF SPECIAL
JUDGE AND ADDITIONAL DISTRICT & SESSIONS JUDGE, AT
BIDAR IN SPECIAL CASE NO.11/2015 AND FURTHER ACQUIT
THE APPELLANT, IN VIEW OF THE REASONS AS STATED ABOVE
IN THE INTEREST OF JUSTICE AND EQUITY.
-2-
NC: 2026:KHC-K:177-DB
CRL.A No. 200169 of 2016
HC-KAR
THIS CRIMINAL APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
and
HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE R.NATARAJ) This appeal is filed by appellant/convict No.2 challenging the judgment of conviction and order of sentence dated 05.10.2016 passed by the Special Judge and Additional District and Sessions Judge at Bidar convicting him for the offences punishable under Section 366-A read with Section 34 of IPC and Section 17 of Protection of Children from Sexual Offences (POCSO) Act, 2012 (hereinafter referred to as 'the POCSO Act, 2012', for brevity). He has also challenged the order of sentence to undergo simple imprisonment for five years and to pay fine of Rs.5,000/- in default simple imprisonment for one month for the offence punishable under Section 366-A of IPC and simple imprisonment for -3- NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR life and to pay fine of Rs.10,000/- in default simple imprisonment for two months for the offence punishable under Section 17 of the POCSO Act, 2012.
2. The respondent registered Crime No.395/2014 for the offences punishable under Section 366A read with Section 34 of IPC and Sections 12, 11 and 16 of the POCSO Act, 2012 on the basis of information furnished by the mother of the victim girl on 21.11.2014. The respondent after conducting an investigation apprehended the accused and after recording relevant mahazars and subjecting the victim girl and accused for medical examination and recording the statement under Section 164 of Cr.P.C filed a charge for the offences punishable under Sections 342, 109, 34, 366A, 376 of IPC and Sections 12, 11 and 16 of the POCSO Act, 2012. The accused were released on bail. The role of the accused No.2 was that he had abetted the commission of the crime by accused No.1.
-4-
NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR
3. The trial Court framed charge against accused No.2 for the offence punishable under Section 366A, 376 read with Section 34 of IPC and Sections 4 and 6 of the POCSO Act, 2012. The accused denied the charges and claimed to be tried. In support of the case of the prosecution, PW-1 to PW-21 were examined and Ex.P-1 to P-19 and MOs-1 to 9 were marked. The substance of the evidence of the prosecution witnesses were read over to the accused, who denied same. However, the accused did not lead any evidence. Based on the oral and documentary evidence, the trial Court held that the accused No.2 guilty for the offence punishable under Section 366A of IPC and Section 17 of POCSO Act, 2012 and sentenced him accordingly. Being aggrieved by the said judgment of conviction and the order of sentence the accused No.2 is before this Court.
4. Learned counsel for the accused No.2 contended that the trial Court did not consider the fact that the accused No.2 was not involved in the offence -5- NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR alleged. On the contrary, the statement of the victim girl under Section 164 of Code of Criminal Procedure showed that the accused No.1 called the accused No.2 who reached the place where the accused No.1 and the victim was standing. The victim handed over her four year old niece victim to accused No.2 and that accused No.1 took the victim on the motorcycle. He contends that accused No.2 was not involved in the offence of luring away the victim or in the offence under Section 366A of IPC. He contends that he was unaware that the victim was a minor and that she was taken by accused No.1 forcibly and without her consent. He therefore submits that the trial Court cursorily looked into the evidence led by the prosecution to hold that the accused No.2 was complicit in the commission of the offence. He further states that the victim was not even known to the accused No.2 and therefore, the accused No.2 could not have been arraigned for an offence punishable under Section 17 of the POCSO Act, 2012 He further submits that PW-1 is the mother of -6- NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR the victim enquired with accused No.2, who disclosed that the accused No.1 had taken the victim towards the railway station. He contends that except this, there is no allegation against the accused No.2 and he neither conspired with the accused No.1 nor did he have any intention to kidnap the victim girl. He therefore submits that the trial Court proceeded on the assumption that the accused No.2 abetted the kidnapping of the victim girl. He submits that the accused No.2 did not have the intention to abet the kidnap and did no act in furtherance of that intention. Hence, the trial Court could not have convicted him for the offence punishable under Section 366A of IPC and Section 17 of the POCSO Act, 2012.
5. Per contra, the learned Additional State Public Prosecutor submitted that the accused No.2 was also a resident of the same village and he is bound to know that about the victim girl as well as the accused No.1. He submits that when the accused No.2 had provided a motorcycle to the accused No.1 to take the victim girl, it is -7- NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR clear that the accused No.2 also had knowledge about the criminal intent of the accused No.1. He therefore submits that the accused No.2 abetted the accused No.1 in commission of the crime and hence, accused No.2 is liable for offence punishable under Section 366A of IPC and Section 17 of the POCSO Act.
6. After hearing the learned counsel for the accused No.2 as well as the learned Additional State Public Prosecutor, the point for consideration that arises for our consideration is :-
"Whether there is sufficient evidence to convict the accused No.2 for an offence punishable under Section 366A read with Section 34 of IPC and Section 17 of the POCSO Act, 2012 ?"
7. A criminal prosecution was launched based on the information provided by PW.1 on 21.11.2014. The accused No.1 and the victim girl were traced in Hyderabad on 30.11.2014. The statement of the victim girl recorded on 02.12.2014, which is after 8 days from the date of the -8- NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR alleged incident. It is evident from the statement victim girl that the accused No.1 lured her. The incident allegedly occurred in front of a jeep stand where several persons would be gathered to go to their respective destinations. This statement also indicates that it was the accused No.1 who compelled the victim girl to go along with him. The accused No.2 allegedly came into the picture after the accused No.1 telephoned him and he arrived at the scene of the incident on a motorcycle. The accused No.1 entrusted the niece of the victim girl to the accused No.2 and sped away on the motorcycle along with the victim girl.
8. PW-1 claimed that accused No.2 was also a resident of her village. When she enquired with him, he disclosed that accused No.1 took the victim girl towards the railway station. Except this, she did not mention anything about the involvement of the accused No.2. The motorcycle was seized on the same day i.e., on 21.11.2014 as per Ex.P-5. PW-1, who was the mother of -9- NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR the victim girl, did not mention about the involvement of the accused No.2. The mother of the victim girl did not allege any motive or involvement of the accused No.2 in abetting the offence punishable under Section 366A of IPC. On the contrary, the accused No.2 was present throughout with the PW-1.
9. PW-2 the victim girl only mentioned about the accused taking her to drop her at the hospital where PW-1 had gone for treatment but took her to railway station. This is however contrary to her statement under Section 164 of Cr.P.C as she stated that she handed over her 4 year old niece to the accused No.2. PW-1 also stated that accused No.2 was at the bus stand. Therefore, it is evident from the evidence of PW-2 that it is accused No.1 who was responsible for abducting her. Except this, there is no other evidence on record to connect the accused with the crime under Section 366A, 109 read with Section 34 of IPC and Section 17 of POCSO Act.
- 10 -
NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR
10. The trial Court while holding that the accused No.2 was guilty of the offence, held that the accused No.2 had abetted the accused No.1 to kidnap the victim girl to Bhalki Railway Station. No material is placed by the prosecution to link the accused No.2 to the motorcycle seized as MO-2. Except the sweeping statement made in the judgment of the trial Court, there is no finding recorded by the trial Court regarding the abetment by the accused No.2 in an offence punishable under Section 366A read with Section 17 of the POCSO Act.
11. In view of the above, we have no hesitation to hold that the prosecution failed to prove the offence under Section 366A, 109 read with Section 34 of IPC and Section 17 of the POCSO Act, 2012 as against the accused No.2. In that view of the matter, we proceed to pass the following :
ORDER
i) Appeal is allowed.
- 11 -
NC: 2026:KHC-K:177-DB CRL.A No. 200169 of 2016 HC-KAR
ii) The impugned judgment of conviction and order of sentence dated 05.10.2016 passed in Special Case No.11/2015 by the court of the Special Judge and Additional District and Sessions Judge, Bidar convicting the appellant/accused No.2 for the offences punishable under Sections 366A, 109 read with Section 34 of IPC and Section 17 of the POCSO Act, 2012 is set aside.
iii) The appellant/accused No.2 is acquitted of the said offences.
iv) The office is directed to communicate a copy of this order to the Trial Court for further needful action.
v) Any bail bonds/security furnished by the accused No.2/appellant stands discharged.
Sd/-
(R.NATARAJ) JUDGE Sd/-
(TYAGARAJA N. INAVALLY) JUDGE SN List No.: 1 Sl No.: 49