Karnataka High Court
State Of Karnataka vs Babu Alias N Babu S/O. Gadilingappa on 21 April, 2025
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CRL.A No.100550/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100550 OF 2022 (A)
BETWEEN:
STATE OF KARNATAKA
REP. BY THE INSPECTOR OF POLICE,
T.B. DAM POLICE STATION,
TUNGA BHADRA DAM CIRCLE,
DIST. BALLARI, THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
AND:
BABU @ N.BABU S/O. GADILINGAPPA
Digitally signed by AGE: 29 YEARS, R/O: MARUTI NAGAR,
V N BADIGER
Location: HIGH T.B. DAM, HOSAPETE,DIST: BALLARI-583101.
COURT OF
KARNATAKA,
DHARWAD BENCH,
...RESPONDENT
DHARWAD
(BY SRI. MAHESH WODEYAR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378 (1)
AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 07.07.2021
PASSED BY THE I ADDITIONAL DISTRICT AND SPECIAL JUDGE AT
BALLARI IN SPECIAL CASE NO.69/2017 AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 07.07.2021 PASSED
BY THE I ADDITIONAL DISTRICT AND SPECIAL JUDGE AT BALLARI IN
SPECIAL CASE NO.69/2017 AND TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 366 AND 376(2)(i) OF IPC AND UNDER SECTIONS 4 AND
6 OF POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.03.2025, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No.100550/2022
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE G BASAVARAJA) State has preferred this appeal against the Judgment and Order of acquittal dated 07th July, 2021 passed in SC No.69 of 2017 by the I Additional District & Special Judge, Bellary (for short hereinafter referred to as "the trial Court").
2. For the sake of convenience, the parties herein are referred to as per their status and before the trial Court.
3. Facts in brief leading to the appeal are that the Circle Inspector of Police, TB Dam, Hospet submitted charge-sheet against the accused for the offence punishable under Sections 366 and 376(2)(i) of Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short hereinafter referred to as the "POCSO Act"). It is stated that the accused was a security guard within the jurisdiction of TB Dam Police Station. It is alleged by the prosecution that on 02nd January 2017 at about 8.00 PM, accused kidnapped CW10 from Neshani camp, TB Dam, Hosapete, with an intention to commit rape on her, took her to Bellary and from -3- CRL.A No.100550/2022 there to Bengaluru and confined her in the house of CW17- Raja, where they stayed for a week, and during that period against her will and consent the accused committed sexual assault on the victim twice though he is well aware that the victim is a minor. Thus accused committed the alleged offences. After filing the charge-sheet, learned Special Judge has taken cognizance against the accused and case was registered in Special Case No.69 of 2017. On hearing charges, the learned Sessions Judge framed charges against the accused for the offence punishable under Sections 366 and 376(2)(i) of Indian Penal Code and Sections 4 & 6 of POCSO Act. The same was read over and explained to the accused in the language known to him. Having heard the same, accused pleaded not guilty and claimed to be tried.
4. To prove the case of the prosecution, in all, 18 witnesses were examined as PWs1 to 18, fifteen documents were marked as Exhibits P1 to P15 and fourteen Material Objects for MOs1 to 14. On closure of prosecution side evidence, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. Accused totally denied all the incriminating evidences appearing against him, but he has not chosen to adduce any defence evidence on his -4- CRL.A No.100550/2022 behalf. However, during the cross-examination of prosecution witnesses, Exhibit D1 is marked. Having heard the arguments on both sides, trial Court has acquitted the accused. Being aggrieved by the impugned judgment of acquittal, State has preferred this appeal.
Submissions on behalf of the State:
5. Sri M.B. Gundawade, learned Additional State Public Prosecutor appearing for the State would submit that the judgment and order of acquittal passed by the trial Court is contrary to facts and evidence on record and the same is not sustainable in the eye of law. He would submit that PW4 is the victim and she has clearly stated in her evidence regarding the accused committing the alleged offence in spite of her resistance and also stated before the Court that for about ten days, she was with accused at Bengaluru and also stated regarding securing of accused and victim by the police from the house of CW17. Further, she has deposed that she has given the statement before the Magistrate as per Exhibit P4 regarding the sexual assault committed by the accused on her. The said evidence has not been appreciated by the trial Court in its proper perspective and thereby erred in acquitting the accused. -5- CRL.A No.100550/2022
5.1. PW11-Doctor who has examined the victim girl has issued medical certificate as per Exhibit P3 wherein it is opined that upon examination, absence of hymen is noticed and that there is possibility of sexual assault upon the victim and further stated that the victim, before coming to the hospital for medical examination, has taken bath and had changed her clothes. Therefore, there is no possibility of tracing spermatozoa, blood stain and also seminal stain and further it is stated that there is no sexual assault on the victim within the preceding 48 hours. This evidence of the victim has also not been appreciated by the trial Court in its proper perspective is the submission of the learning State public Prosecutor.
5.2. He would further submit that PW12-Assistant Master of Government School, TB Dam has given the school certificate as per Exhibit P11 regarding the date of birth of the victim. As per this Exhibit P11, the date of birth of victim is 23rd January 2003, and the victim was a minor girl. But the trial Court, giving much importance to the opinion evidence produced by the Doctor stating that the victim was between 18 to 20 years, has come to the wrong conclusion that the victim was not minor as on the date of alleged incident. Therefore, the finding given by the trial Court is not sustainable in the eye -6- CRL.A No.100550/2022 of law since the PW12 has clearly stated that as per school records, the date of birth of the victim was 23rd January 2003. The trial Court ought to have convicted the accused by taking into consideration the evidence of PW1 & 2-parents of the victim but has come to the wrong conclusion that the victim was major as on the date of incident. Therefore, the finding given by the trial Court is not sustainable in the eye of law since PW12 has clearly stated as per school records, the date of birth of the victim was 23rd January 2003.
5.3. PW9 is the Doctor who has examined accused and issued certificate as per Exhibit P8 who has opined that the accused is having capacity of performing the sexual act. The trial Court ought to have convicted the accused by taking into consideration evidence of parents-PW1 & 2, PW4-victim, PWs9 & 11 Doctors and PW12-School Teacher, so also the evidence of investigating officers and failure to consider the same had resulted in miscarriage of justice.
5.4. Further, he would submit that the learned Special Judge has totally ignored the provisions of Sections 29 and 30 of the POCSO Act. Accordingly, the finding given by the trial Court, while acquitting the accused, is perverse and the trial -7- CRL.A No.100550/2022 Court has ignored the statutory presumption which is mandatory to be drawn against the accused. On all these grounds, he sought to allow the appeal.
Submissions on behalf of the respondent accused:
6. Shri Mahesh Wodeyar, learned counsel appearing for the respondent supports the judgment and order of acquittal and would submit that the prosecution has not placed cogent and convincing evidence as to the date of birth of the victim to show her age as on the date of alleged commission of offence. Prosecution has relied on the study certificate (ªÁå¸ÀAUÀ ¥ÀæªÀiÁt ¥ÀvÀæ) Exhibit P11 and evidence of PW12-Sri Basavaraj Banad, and on that basis, it stated that date of birth of the victim as 23rd January 2003. PW12-Assistant Master has not whispered anything as to on what basis the school authorities have entered the date of birth of the victim as 23rd January 2003. The Birth Certificate, Transfer Certificate or the school Admission Register Extract of the victim are not produced by the prosecution. The Investigating Officer has not explained anything as to non-production of the above material documents to prove the age of the victim. During the cross examination of PW17-Investigating Officer has clearly stated that the Medical -8- CRL.A No.100550/2022 Officer, at the time of determining the age of the victim, has shown the age of the victim between 18 to 20 years as on the date of alleged commission of offence. During the course of cross-examination of PW1, he has clearly admitted that he has not given the birth certificate to the School at the time of admission to School. Further, he admits that the Government Hospital authorities have issued the birth certificate with regard to her birth in the hospital and he has submitted the same to the municipal authorities to enter the date of birth of victim. But the Investigating Officer has not collected this material piece of evidence. He has clearly admitted in his evidence that the Medical Officer has not been requested to make the Ossification test for determination of the age of the victim as on the date of the alleged commission of offence. In that view of the matter, the trial Court has properly appreciated the evidence on record in according with law and facts and has come to the conclusion that the prosecution has failed to prove that the victim was a minor as the rate of the alleged commission of offence.
6.1 With regard to a commission of offence under Sections 366 and 376(2)(i) of Indian Penal Code is concerned, the learned Counsel submitted that the trial Court has properly -9- CRL.A No.100550/2022 appreciated all the materials placed on record in accordance with law and absolutely, there are no materials to interfere with the impugned judgment and order of acquittal. On all these grounds he sought for dismissal of appeal.
7. Having heard the learned counsel appearing on both sides and on perusal of materials placed before us, the following points would arise for our consideration:
1. Whether the trial Court is justified in holding that the prosecution has failed to prove that the victim was minor as on the date of alleged commission of offence?
2. Whether the impugned judgment of acquittal suffers from legal infirmities requiring this Court to intercede?
3. What order?
8. Our answer to the above points would be as under:
Point no.1: in the affirmative;
Point no.2: in the negative;
Point No.3: as per final order.
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Regarding Point No.1:
9. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal.
10. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus:
"23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
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CRL.A No.100550/2022(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
11. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:
"16. The High Court in the present case was dealing with an appeal against acquittal. In such a case,
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it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. ..."
12. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:
"4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there
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has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice...."
13. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:
"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it
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is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."
14. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:
"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion."
15. It is the case of the prosecution that at the time of commission of offence, the victim was a minor as defined under the provisions of the POCSO Act. To substantiate this,
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CRL.A No.100550/2022prosecution has produced Exhibit P1-study certificate in which the date of birth of the victim is shown as 23rd January, 2003. PW12-Assistant Master of Government School, TB Dam, is also examined. He has deposed as to the issuance of Exhibit P11. Further, he has deposed that he has also issued copy of Transfer Certificate of the victim. But the Investigating Officer has neither produced the transfer certificate nor he has explained as to non-production of transfer certificate though he has obtained the same from PW12.
16. PW1 Jayavelu and PW2 Smt. Tulasimani parents of the victim, have not deposed as to the age of the victim. During the course of cross-examination, PW1 has clearly admitted that his daughter is born in Government Hospital and the hospital authorities have issued the birth certificate of the victim and he handed over the same to municipal authorities. This material original document regarding birth of the victim has not been collected by the Investigating Officer. The Investigating Officer has not explained anything as to non- production of this document. During the course of cross- examination of PW 17-the investigating officer, the Counsel for the accused confronted the Certificate issued by VIMS, Bellary pertaining to the this victim which is admitted by the
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CRL.A No.100550/2022investigating officer and further he has also admitted that there is opinion of the doctor that victim is aged between 18 to 20 years. Exhibit D1 also reveals the same. Considering all these material/evidence adcuced, the trial Court has properly appreciated the evidence in accordance with law and facts and has come to the conclusion that the prosecution has failed to prove that the victim was minor as on the rate of alleged commission of offence. Even on re-appreciation, re-evaluation of the entire evidence on record, we do not find any error or legal infirmity in the finding given by the trial Court in this regard. Accordingly Point No.1 is answered in the affirmative. Regarding Point No.2:
17. With regard to commission of offence alleged against the accused is concerned, the prosecution has alleged that on 02nd January 2017 at 8 PM, the victim-PW4 left to Flour Mill and at that time she has informed in the house that she is also going to meet her cousin, but she did not turn up. The complainant and his family members after searching for her and not able to trace her, on the next day i.e. on 3 January 2017, by suspecting that the accused, might have kidnapped their daughter, lodged the complaint as per Exhibit P1.
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CRL.A No.100550/2022Genesis of this case is arising out of the complaint-Exhibit P1 filed by the father of the victim. On the basis of the complaint, police have registered a case in Crime No.3 of 2017 against the accused for the offence punishable under Section 363 Indian Penal Code. Thereafter, after recording the statement of the victim, Police have registered the case against the accused for the offence punishable under Sections 366 and 376(2)(i) of the Indian Penal Code and Sections 4 and 6 of POCSO Act. The material witness i.e PW4 has deposed in her evidence that on 02nd January 2017 at about 8 PM, she had been to flour mill and at that time accused took her from that place to Bellary and then from Bellary to Bangalore. Further, she has stated the accused took her to the House of CW17-Raja who is examined before the Court as PW8, wherein they stayed there for ten days. Further she has stated that during the period of stay in the house of CW17-Raja accused committed rape on her. After ten days, her father came to the house of CW17 with police and police took her and accused to the TB Dam Police Station. She has informed the fact before the police as per Exhibit P3. She has also given statement before the Magistrate as per Exhibit P4. During the course of cross-examination of PW4, she has clearly admitted that the accused has not
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CRL.A No.100550/2022committed rape on her in Bangalore. The material witness PW8-Raja has not supported the case of prosecution. Even in the cross-examination made by the Public Prosecutor after treating him as hostile witness with the permission of the Court, he has categorically denied the statement recorded by the Investigating officer under section 161 of Code of Criminal Procedure, which is marked as Exhibit P7. The prosecution has failed to elicit any favourable answer from this material witness to substantiate its Case.
18. Prosecution Witness No.11-Dr. Smt. Mehbooba, who issued the medical examination report marked as Exhibit P3, has given her deposition before the Court. According to her testimony, on 13th January 2017, the victim was brought to her for medical examination by the TB Dam Police, with a history of alleged sexual assault. During the course of the examination, the victim narrated that she was in a romantic relationship with the accused. She further disclosed that she had travelled to Bangalore in the company of the accused and that there had been consensual sexual intercourse between them. Dr. Mehbooba categorically stated in her evidence that she did not observe any physical injuries on the private parts of the victim during the examination. She further deposed that upon clinical
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CRL.A No.100550/2022examination, there was no indication of recent sexual assault having taken place within the preceding 48 hours prior to the examination. This medical testimony, thus, fails to support the allegation of rape made by the victim.
19. Further, Exhibit P9, which is the Forensic Science Laboratory (FSL) report submitted by Dr.Kumuda Rani, Assistant Director of the Biology Section at the FSL, Bengaluru, stationed at the Regional Forensic Science Laboratory (RFSL), Kalaburagi, also does not support the prosecution's version. The findings in the said report are as follows:
1. No seminal stains were detected in item numbers 2, 3, 4, 6, 7, 10, and 11;
2. Spermatozoa were not detected in item number 5;
3. No skin tissue was detected in item numbers 1 and 9;
4. Vaginal secretions were not found in item number 8;
5. Blood stains were absent in item numbers 10 and
11.
This scientific analysis clearly contradicts the statements made by the prosecution's witnesses, thereby weakening the overall credibility of the prosecution's case.
20. In light of the above, the medical and forensic evidence fails to corroborate the allegations made by the
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CRL.A No.100550/2022victim. Furthermore, as previously discussed, the victim herself, in her voluntary statement, admitted that the accused had not committed rape on her while they were in Bengaluru. The trial Court has rightly taken note of these inconsistencies and contradictions while appreciating the evidence. Upon a detailed and independent re-appreciation, re-evaluation, and re-examination of the entire evidence on record, we are of the considered opinion that the judgment of acquittal passed by the trial Court is well-reasoned, based on proper appreciation of facts and the law applicable thereto. No error, illegality, or infirmity is found in the impugned judgment warranting interference by this Court. Accordingly, point number two is answered in the negative.
Regarding Point No.3:
21. For the foregoing reasons and discussions, we proceed to pass the following:
ORDER
i) Appeal is dismissed;
ii) Judgment and Order of acquittal dated 07th July, 2021 passed in SC No.69 of 2017 by the I
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Additional District & Special Judge, Bellary, is confirmed.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE Sd/-
(G BASAVARAJA) JUDGE lnn CT-CMU