- 1 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200153 OF 2017 (374(Cr.PC)/415(BNSS)) BETWEEN MOHD. ARIF S/O MOHD.SHABEER SALAR AGE:20 YEARS OCC:STUDENT R/O PILKMMA AREA WADI TQ.CHITTAPUR DIST.KALABURAGI. ...APPELLANT (BY SRI NANDKISHORE BOOB, ADV.) AND 1 . THE STATE, THROUGH WADI POLICE STATION, NOW REPRESENTED BY ADDL. SPP HCKB, AT KALABURAGI. 2. NINGANNA S/O BHEEMARAYA TALWAR, AGE: 53 YEARS, OCC: ELECTRIC SHOP, R/O. PILKAM AREA, WADI, TQ. CHITTAPUR, DIST. KALABURAGI-585225. …RESPONDENTS (BY SRI GOPAL KRISHNA YADAV, HCGP FOR R1; R2 SERVED) THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 24.10.2017 AND 30.10.2017 RESPECTIVELY PASSED BY THE II ADDL. SESSIONS JUDGE, KALABURAGI, IN SPECIAL CASE Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 (POCSO) NO.19/2014, CONVICTING THE APPELLANT / ACCUSED FOR THE OFFENCES P/U/S. 366 AND 376(2)(n) OF IPC. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 17.03.2025 AT KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S RACHAIAH CAV JUDGMENT (PER: HON'BLE MR. JUSTICE S RACHAIAH) 1. This appeal has been filed by the appellant / accused No.1 being aggrieved by the judgment of conviction dated 24.10.2017 and order on sentence dated 30.10.2017 in Spl. Case (POCSO) No.19/2014 on the file of the II Additional Sessions Judge, Kalaburagi, wherein the accused No.1 has been convicted for the offences under Sections 366, 376(2)(n) of Indian Penal Code (for short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). 2. The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience. Factual matrix of the case is as under: 3. It is the case of the prosecution that, P.W.2 - Ninganna lodged a complaint as per Ex.P2 stating that, his - 3 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 daughter was aged about 17 years and she was studying in PUC. About one month prior to the lodging of the complaint, when his daughter was going to college, during her journey to the college, accused No.1 was talking with his daughter in the midst of the road. After having seen the said incident, the villagers of P.W.2 instructed the said Arif that he should not talk with the girl, who is supposed to be married to someone else. Further, P.W.2 was informed about the incident. 4. After hearing the said news, P.W.2 and his wife Mallamma went to the house of Arif and informed his parents regarding the said incident and also instructed them to give suitable advice to Arif. On 30.01.2014, around 09.00 a.m., his daughter went to the college as usual, however, she did not return home even after the evening was over. P.W.2 started searching for the whereabouts of his daughter. However, he could not get any information. - 4 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 5. On 05.02.2014, P.W.2 lodged a complaint before the respondent-police regarding the incident. The respondent-police have registered a case in Crime No. 24/2014 for the offence under Section 366A of IPC. After conducting the investigation, submitted the charge sheet for the offences under Sections 366, 376(2)(n) of IPC r/w Sections 4, 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). 6. To prove the case of the prosecution, the prosecution, in all, examined 17 witnesses as PWs.1 to 17 and got marked 19 documents as per Exs.P1 to P19. The defence has got marked 9 documents as per Exs.D1 to D9. The Trial Court after concluding the trial and after having appreciated the facts and circumstances of the case, acquitted the accused Nos.2 and 3 for the offences under Sections 109 r/w 366 of IPC and Section 17 of POCSO Act and convicted the accused No.1 for the offences under Sections 366, 376(2)(n) of IPC and Section 6 of POCSO Act. Being aggrieved by the judgment of conviction, the - 5 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 appellant / accused No.1 is before this Court seeking to set aside the said judgment. 7. Heard Sri Nandkishore Boob, learned counsel for the appellant and Sri Gopal Krishna Yadav, learned High Court Government Pleader for the respondent No.1 - State. 8. The contention of the learned counsel for the appellant/accused is that the evidence of P.W.1 would indicate that accused No.1 along with two others, kidnapped her by giving life threat and took her to Hyderabad, there they stayed for 2 months in the house of P.W.12 and further, P.W.1 stated that she had been continuously raped by accused No.1. However, the medical evidence would indicate otherwise. 9. It is further submitted that the evidence of P.W.12 would indicate that, when she enquired P.W.1 regarding the relationship between the accused No.1 and herself, she stated that the accused No.1 was her husband. Further, it is stated that, both were staying in the house of P.W.12 - 6 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 for one month and twenty days. Such being the fact, if at all P.W.1 had been kidnapped by the accused, there was no impediment for her to disclose the said fact to P.W.12. 10. It is further submitted that, regarding the age of the victim is concerned, though PWs.1 and 2 are consistent that she was a minor as on the date of the alleged incident and P.W.13 submitted a certificate, as per Ex.P13, to state that her age was 17 years as on the date of the alleged incident, the evidence of P.W.2 did not indicate as to how he arrived at a conclusion that the age of the victim was 17 years. Merely because he gave the information to the school authority regarding the age of the victim without any birth certificate, it cannot be construed as it is an accurate age. Under such circumstances, the medical evidence or opinion regarding the age has to be considered. P.W.9 was the Doctor who conducted examination of the victim, submitted her final opinion as per Ex.P9 and opined that the age of the victim was 16 – 18 years as on the date of the alleged - 7 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 incident. That should have been considered by the Trial Court while appreciating the evidence. 11. It is further submitted that, when the age of the victim is disputed, the benefit of doubt should have been given and the medical evidence in respect of the age of the prosecutrix becomes relevant in that circumstance. As per Ex.P9, the age of the victim is 18 years. If the said age is considered as true and genuine, the question of recording the conviction for the above said offences would not arise. The Trial Court has committed an error while appreciating the evidence in such a way. Therefore, the said judgment of conviction is liable to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 12. Per contra learned High Court Government Pleader for the respondent No.1 - State vehemently justified the judgment of conviction and he further submitted that P.W.1 being the victim of the incident, has categorically supported the case of the prosecution. P.Ws.4 and 5 are the friends of accused No.1. Even though they did not - 8 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 support the case of prosecution, P.W.12 who is the owner of the house at Hyderabad, has stated that both the accused and the victim were staying together in her house as tenants. 13. It is further submitted that, merely because the medical evidence regarding the age and also the incident of rape did not support the case of prosecution, that would not be sufficient to discard the evidence of P.Ws.1 and 2. When the prosecutrix herself deposed before the Court that she had been subjected to sexual assault on several occasions when she was staying in the house of P.W.12, that would be sufficient to record the conviction. Accordingly, the Trial Court rightly appreciated the evidence of all the witnesses and passed the judgment of conviction which is appropriate and proper. It is not appropriate to interfere with the said findings. Making such submissions, learned High Court Government Pleader for the respondent No.1 - State prays to dismiss the appeal. - 9 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 14. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, it is appropriate to refer the evidence of all the witnesses. 15. According to P.W.1, she was born on 07.04.1997. Her age as on the date of incident was 17 years. She stated that she was kidnapped by accused No.1 on the pretext of marriage on 30.01.2014. After kidnapping her, she was taken to Hyderabad by bus and she was confined in the house of P.W.12 for 1½ months. Further, she stated that she had been subjected to sexual assault on several occasions when she was staying there. 16. P.W.2 who is the father of the victim, had stated in conformity as that of the averments of the complaint and supported the case of the prosecution. Though the defence has not put any question regarding the age of the victim and its accuracy, the fact remains that, as per Section 94(2) of the Juvenile Justice Act, the age of the prosecutrix has to be proved. - 10 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 17. In this context, it is appropriate to refer the judgment of the Hon'ble Supreme Court in the case of P.Yuvaprakash v. State, Rep. by Inspector of Police1, paragraph No.16 reads as under: 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh [(2019) 12 SCC 370] that: “Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 1 2023 SCC OnLine SC 846 - 11 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 18. On careful reading of the dictum of the Hon'ble Supreme Court, firstly, the age of the juvenile has to be considered by placing reliance on the birth certificate from the school and the matriculation or equivalent certificate from the concerned Examination Board. In the absence thereof, it can also be proved by obtaining the birth certificate from the Corporation, Municipal Authority or Panchayath. In the absence of these two methods, medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. 19. In the present case, the victim was a student and she was studying PUC as on the date of the alleged incident. The prosecution examined P.W.13 who produced a - 12 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 certificate as per Ex.P13 which would indicate that the date of birth of the victim was 07.04.1997 i.e., 17 years as on the date of the incident. When the matriculation certificate is available to determine the age of the victim and it was not disputed by the defence in the cross- examination, the medical opinion regarding age of the victim cannot be sustainable. 20. It is also relevant to take note of the fact that, P.W.12 deposed in her evidence that, both the victim and accused No.1 had stayed in her house as tenants for 1½ months. The evidence of this witness has to be believed for the reason that, she is an independent witness and her evidence has not been discredited, even though she had been subjected to cross-examination. Therefore, the evidence of P.Ws.1, 2, 12 and 13 is unambiguous and consistent that the accused No.1 had kidnapped the victim and committed the sexual assault. Hence, I am of the considered opinion that the findings of the Trial Court are appropriate and there is no occasion for this Court to interfere with the said findings. - 13 - HC-KAR NC: 2025:KHC-K:3245 CRL.A No. 200153 of 2017 21. In the light of the observations made above, I proceed to pass the following: ORDER Criminal Appeal filed by the appellant/accused No.1 is dismissed. Sd/- (S RACHAIAH) JUDGE BSS List No.: 19 Sl No.: 1