- 1 - NC: 2025:KHC-K:1575 CRL.A No. 200079 of 2018 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200079 OF 2018 (374(Cr.PC)/415(BNSS)) BETWEEN: MALLAPPA S/O TIPPANNA BAGGI, AGE:19 YEARS, OCC: AGRICULTURE, R/O. DUPPALLI, TQ. & DIST. YADAGIR. …APPELLANT (BY SRI ASHOK B. MULAGE, ADVOCATE) AND: 1. THE STATE THROUGH, SAIDAPUR POLICE STATION, YADAGIR, DIST. YADAGIR, THROUGH ADDITIONAL SPP, HIGH COURT OF KARNATAKA, KALABURAGI BENCH - 585107. 2. SABANNA S/O GIREPPA KAVALI, AGE:54 YEARS, OCC: AGRICULTURE, R/O. DUPPALLI, TQ. AND DIST. YADAGIR. …RESPONDENTS (BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1; SRI BHEEMARAYA M.N., SRI SHARANAPPA HOSALLI AND SRI JOSEPH PURUSHOTTAM, ADVOCATES FOR R2 ) THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE SESSIONS JUDGE AT YADGIRI IN SPL.CASE (POCSO) NO.19/2015 DATED:23.02.2018 AND ACQUIT THE APPELLANT FOR THE OFFENCE PUNISHABLE UNDER SECTION 8 OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012. Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - NC: 2025:KHC-K:1575 CRL.A No. 200079 of 2018 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S RACHAIAH ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE S RACHAIAH) 1. This appeal is arising from the judgment of conviction and order on sentence dated 23.02.2018 passed in Spl.Case (POCSO) No.19/2015 on the file of Sessions Judge at Yadgiri. 2. The ranks of the parties will be considered henceforth as that of Trial Court for convenience. Factual matrix of the case: 3. The case of the prosecution is that, the daughter of P.W.2 had been to school to attend the examination. After the examination, she did not go to her house. Being afraid of not having found the victim, the family members have searched the whereabouts of the victim. As they could not trace her, he lodges a complaint before the respondent - police. The respondent - police after - 3 - NC: 2025:KHC-K:1575 CRL.A No. 200079 of 2018 registering the case, conducted the investigation and submitted the charge sheet. 4. Heard Sri Ashok B. Mulage, learned counsel for the appellant, Sri Jamadar Shahabuddin, learned High Court Government Pleader for respondent No.1 and Sri Bheemaraya M.N., Sri Sharanappa Hosalli and Sri Joseph Purushottam, learned counsel for the respondent No.2. 5. It is the submission of the learned counsel for the appellant that the findings of the Trial Court in recording the conviction in respect of Section 8 of POCSO Act is not proper and not relevant for the reason that the victim though she stated to have traveled to Bengaluru in a public transport after she had been kidnapped by the accused, the fact remains that, the prosecution has failed to establish the ingredients of above said provision through independent witnesses. 6. It is further submitted that the alleged kidnap itself is doubtful, committing the offence under Section 8 of the POCSO Act is not proper. Therefore, the findings of the Trial Court are required to be set aside. Making such - 4 - NC: 2025:KHC-K:1575 CRL.A No. 200079 of 2018 submissions, the learned counsel for the appellant prays to allow the appeal. 7. Per contra, the learned High Court Government Pleader for respondent No.1 vehemently justified the conviction and further submitted that the evidence of P.W.1 cannot be discarded as she has supported the case. The relative of the victim and also parents are consistent that she had been kidnapped and she was rescued from BOSCO Institute after drawing the spot mahazar. Such being the fact, it is not appropriate to interfere with the findings of the Trial Court. Making such submissions, learned High Court Government Pleader prays to dismiss the appeal. 8. Similarly, learned counsel for the respondent No.2 adopted the arguments of learned High Court Government Pleader and he prays to dismiss the appeal. 9. Having heard the learned counsel for respective parties and also perused the findings of the Trial Court, it appears from the record that the victim had been kidnapped by the accused. She has been examined in the Court as P.W.1. In the examination-in-chief, she - 5 - NC: 2025:KHC-K:1575 CRL.A No. 200079 of 2018 stated that accused No.1 was touching her and also kissing her while traveling to Bengaluru. Further, she stated that he had threatened her by showing knife. In the cross-examination held on 26.11.2016, she admitted that accused had not kidnapped her. Further, she stated that PWs.2 and 3 are not her parents. However, again she was called on 22.01.2018 for the purpose of further examination-in-chief, there the learned prosecutor takes admissions of the victim relating to the case. On overall reading of the evidence of the victim, it is not appropriate to rely on her evidence in respect of the incident. 10. P.Ws.2, 3 are the parents, have supported the case of the prosecution in respect of abduction or kidnap. 11. P.W.4 stated to be the witness to Ex.P3. Though he supported the case relating to signature, however, he was not aware about the contents thereof. 12. P.W.5 also witness to Ex.P3. He has not supported the case. 13. P.Ws.6 and 7 are the witnesses to Ex.P4 have turned hostile. - 6 - NC: 2025:KHC-K:1575 CRL.A No. 200079 of 2018 14. P.W.8 is the sister of P.W.2. She is a hearsay witness. 15. P.W.9 – Doctor who conducted the examination of the victim opined that there is no sexual assault on the victim. She submitted the report as per Ex.P5. 16. P.Ws.10, 11 and 12 are the classmates of P.W.1. They have not supported the case of the prosecution. 17. Be that as it may, on careful reading of the evidence of all the witnesses, the entire case is revolving around the punishment relating to Section 8 of POCSO Act. Even though P.W.1 being a victim of the case, her evidence is shrouded with ambiguity and it is not appropriate to accept the same as relevant. Therefore, relying on her evidence in respect of the above said offence appears to be not proper and appropriate. 18. It is also noticed here that there is no evidence to show that she had been rescued from the BOSCO home situated at Bengaluru. In the absence of the evidence that the victim was brought from BOSCO, traveling in the bus along with accused No.1 is doubtful. Therefore, the said doubt has to be given in the form of benefit of doubt - 7 - NC: 2025:KHC-K:1575 CRL.A No. 200079 of 2018 to the accused No.1. However, the Trial Court has committed serious error in recording the conviction. Hence, the same is liable to the set aside. 19. In the light of the observations made above, I proceed to pass the following: ORDER i) The Criminal Appeal is allowed. ii) The judgment and order dated 23.02.2018 passed in Spl.Case (POCSO) No.19/2015 by the Sessions Judge, Yadgiri is set aside. iii) The petitioner is acquitted for the offence punishable under section 8 of POCSO Act. iv) Bail bonds executed, if any, stands cancelled. Sd/- (S RACHAIAH) JUDGE RSP/UN List No.: 1 Sl No.: 40 CT:PK