- 1 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO.1767 OF 2018 (C) BETWEEN: 1. MOHAMMED RAFEEQ @ RAFEEQ S/O MOQBAL SAB AGED ABOUT 26 YEARS OCC:MASON R/O ANUPINAKATTE OPPOSITE TO MADARASA GOPALA, SHIVAMOGGA-577 201 …APPELLANT (BY SRI UMESH.P.B FOR SRI R B DESHPANDE, ADVOCATES) AND: 1. THE STATE OF KARNATAKA BY MAHILA POLICE STATION SHIVAMOGGA-577 201 (REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 001) …RESPONDENT (BY SRI RAHUL RAI.K, HCGP) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 26.04.2016 PASSED BY THE PRINCIPAL SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.174/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 366, 376(2)(f), 323 AND 324 OF IPC. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Umesh P.S., appearing on behalf of Sri R.B. Deshpande, counsel for the appellant and Sri Rahul Rai K., learned High Court Government Pleader for the respondent. 2. Accused in S.C.No.174/2012 on the file of Principal Sessions Judge, Shivamogga, wherein he has been convicted for the offences punishable under Sections 366, 376 (2) (f), 323 and 324 IPC and ordered to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.10,000/- for the offence punishable under Section 376 (2) (f) IPC, has preferred this appeal. 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: Mahila Police, Shivamogga filed a charge sheet against the appellant for the offence punishable under Section 366-A, 376 (2) (f), 323 and 324 IPC alleging that on 29.08.2011 at around 8.00 p.m., accused went to the house of the victim and persuaded the victim girl to show the house of Hajira. The - 3 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 victim girl believed the words of the accused and accompanied the accused to show the house of Hajira. 4. After showing the house, when the victim girl wanted to return to her house, accused gagged her mouth and forcibly carried her to an abandoned place near 5th cross, 3rd main, Chalukya Nagar, New Hudko colony, Tunga Nagar, Shivamogga (hereinafter referred to as ‘place of incident’) and beaten her and thereafter committed forcible sexual intercourse on her. 5. When the victim girl did not return after accompanying the accused, C.Ws.4 and 5 came in search of the victim girl and on seeing them, accused ran away. 6. Mother of the victim girl lodged a complaint wherein she has stated that victim girl is her second daughter out of her three daughters and a son and she was aged about 10 years. She has further stated that at about 9.30 p.m., when victim girl was in her grand mother’s house, she came in search of the victim girl and found that in the place of incident crying and on enquiry she came to know about the incident. 7. Based on the complaint, Mahila Police registered a case in Crl.No.129/2011 and victim girl was sent to medical - 4 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 examination wherein the doctor has examined her and noted the injuries and issued the certificate. After completing the investigation, Mahila Police filed the charge sheet for the aforesaid offences. 8. Accused was in custody and his presence was secured after committal order and charges were framed. Accused pleaded not guilty and therefore trial was held. 9. In order to bring home the guilt of the accused, prosecution in all examined nine witnesses comprising of complainant, victim girl, spot mahazar witnesses, Doctor, who has examined the accused and victim girl and Investigating Officer. 10. Prosecution has also placed on record eighteen documentary evidence which were exhibited and marked as Exs.P.1 to P.18, comprising of complaint, medical certificate, spot mahazar, seizure mahazar, opinion of the Doctor, report of the Head Constable, Forensic science laboratory report, school certificate of the victim girl. 11. On behalf of the defence, contradicting the statement elicited in the examination of P.Ws.2 and 3 were marked as Exs.D.1 and D.2. - 5 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 12. The prosecution placed on record, six material objects which were marked as M.Os.1 to 6, comprising of underwear garments of the accused, right and left finger nails scraping of the victim, swab, underwear garment of victim and Urethral swab and smear. 13. On conclusion of recording of evidence, accused statement as is contemplated under Section 313 Cr.P.C., was recorded wherein accused has denied all the incriminatory materials and did not choose to offer his explanation about the incident in writing as is contemplated under Section 313 (4) Cr.P.C., nor placed any defence evidence. 14. Thereafter learned Trial Judge heard the parties in detail and on cumulative consideration of material evidence on record including the medical evidence referred to the oral testimony of the victim girl, found that the accused is guilty for the offence punishable under Section 323, 324, 366, 376 (2) (f) (victim being minor) and sentenced as referred to supra. 15. Being aggrieved by the same accused before this Court in this appeal on the following grounds:  That conviction and sentence are contrary to law, evidence and probabilities of the case. - 6 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018  That learned Sessions Judge has committed serious error in convicting the Appellant on the prosecution evidence which is highly interested, contradictory, unreliable and artificial.  That prosecution is guilty of the suppression of the material evidence and has not come forward with true version of the incident.  That learned Sessions Judge has committed serious error in holding that prosecution has proved the case beyond all reasonable doubts that Appellant is guilty of the offence alleged against him.  That learned Sessions Judge should have acquitted the Appellant on the ground that there is long, unexplained delay in filing the complaint.  That the learned Sessions Judge has committed serious error in relying on interested testimony of Pw's 1 to 4 who are related to each other and when their evidence are evidence is not corroborated by other prosecution evidence.  That learned Sessions Judge has committed serious error in relying on the evidence of Pw's 1 to 4 when their evidence is full of material contradictions and omissions further suffers from legal infirmities  That learned Sessions Judge should have acquitted the Appellant on the ground that identity of appellant/accused was disputed as there is no corroborative evidence i.e. evidence of C.W. 7 and 8 who are charge sheeted witnesses. The evidence of alleged last seen witness namely Pw's 4 is suffering - 7 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 from serious illegality and is in-consistent and contrary to the complaint and the other prosecution witnesses.  That the learned Sessions Judge has committed serious error in convicting the appellant on the ground that medical evidence is not corroborate with the prosecution version against the allegation upon appellant. Under these circumstances the prosecution has failed to prove the allegations against the appellant and hence conviction of appellant is bad in law.  That the learned Sessions Judge ought to have appreciated the fact that there was no motive on the part of the appellant to commit such offences as seen by the materials collected during investigation. Under these circumstances the benefit of doubt ought to have extended to the appellant considering that defense taken by the appellant is corroborating the circumstances which are not elicited by the prosecution to the link the appellant with the alleged incident.  That the learned Sessions Judge ought to have been that there is long unexplained delay in filing the complaint and this delay has been conveniently used by the interested persons to concoct a false case against the appellant. This aspect is corroborated with the defense version of the appellant that there was enmity between appellant and other interested persons who in turn made complainant to give a false complaint against the appellant. - 8 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018  That the learned Sessions Judge ought to have discarded the case of the prosecution on the ground that there is lapse in procedural aspects by the investigation officer and thus prosecution version cannot be accepted in the facts and circumstances and appellant should have been given benefit of doubt in the case of the prosecution and acquitted him for the charge leveled against him.  That the learned Sessions Judge ought to have drawn adverse inference in the case of the prosecution since evidence of P.W.9/investigation officer, which is suffering from serious infirmities and omissions which goes to root of the case.  That the learned Sessions Judge has committed serious error in convicting the Appellant for the offences punishable under Section 366, 376(2)(f), 323 and 324 IPC when prosecution has failed to adduce or produce any evidence in that regard.  That the learned Sessions Judge has not at all taken into consideration various decisions relied on behalf of defence.  That sentence imposed on the Appellant is too severe and harsh and disproportionate.  The learned Sessions Judge should have accepted the defence version and acquitted the Appellant.  That learned Sessions Judge has not at all appreciated the evidence in the light of human probabilities and name has resulted in mis-carriage of justice. - 9 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018  That the entire approach of the case by the learned Sessions Judge in convicting and sentencing the Appellant is illegal, erroneous and the same has resulted in mis-carriage of justice.” 16. Sri Umesh P.S., learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the material evidence did not support the case of the prosecution in toto and thereby the oral testimony of P.W.2 - victim girl ought not to have been believed in toto by the learned Trial Judge, especially while recording the guilt of the appellant for the offence punishable under Section 376 (2) (f) IPC and sought for allowing the appeal. 17. He would further contend that by following the principles of law enunciated by the Hon’ble Apex Court in various judicial pronouncements that in a matter of this nature, the conviction of the appellant for the sexual offences though punishable solely on the oral testimony of the victim, legal principles would also caution the Trial Court that if the oral testimony in a matter of this nature is shaky or in the nature of - 10 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 not inspiring total confidence in the Trial Court, as a rule of prudence, the Courts are required to look for corroboration. 18. Looking for the corroboration in the rule of prudence and in the case on hand, no such corroboration is placed on record on behalf of the prosecution and victim being the 10 years old girl and tutored witness. Therefore, her evidence ought not to have been believed in toto by the learned Trial Judge by recording the guilt of the accused especially for the offence punishable under Section 376 (2) (f) IPC and thus sought for allowing the appeal. 19. Alternatively, learned counsel for the appellant would contend that the other offences could be scaled down in the absence of material evidence establishing the allegations of their against the appellant and custody period of more than nine years already undergone by the appellant can be treated as period of imprisonment and appellant is set free. 20. Per contra, Sri Rahul Rai, learned High Court Government Pleader would support the impugned judgment in toto. 21. He would further contend that in the absence of any previous enmity or animosity between the complaint and the - 11 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 accused why the complainant would file a false complaint against the appellant, that too by pledging the dignity of the victim girl who is only ten years old and sought for dismissal of the appeal. 22. He also contended that the material evidence placed on record is sufficient enough inasmuch as there was no delay in lodging the complaint nor medical examination and opinion of the Doctor who examined the minor girl is sufficient enough to conclude the offence of rape. He also contended that the term ‘rape’ is not a medical term and it is a legal term which has been accessed by the Court from the material placed on record and to establish the same, insertion of the male part into the female part, few slightest extent (penetration) is sufficient and ejaculation of the sperm or absence of spermatozoa is of no consequence in asserting the act attributed to the appellant and thus sought for dismissal of the appeal. 23. He would also contend that the material evidence on record would justify the conviction of the appellant on record especially when there is no explanation offered by the appellant and victim girl was found away from the house of the mother of - 12 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 the complainant. Victim girl was found in the place of incident from where the victim girl has been rescued by the complainant. When the complainant went to the place of incident, accused ran away from the place and victim girl was totally naked which would establish the case of the prosecution in toto and sought for dismissal of the appeal. 24. Having heard the parties in detail, this Court perused the material on record meticulously. 25. On such perusal of the material on record, the following points would arise for consideration: 1) Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Sections 323, 324, 326, 366 and 376 (2) (f) IPC? 2) Whether the appellant makes out a legal infirmity and perversity in the impugned judgment? 3) Whether the sentence needs modification? 4) What order? - 13 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 Regarding point Nos.1 and 2: 26. In the case on hand, the victim girl – P.W.2 being the second daughter of P.W.1 is not in dispute. Age of the victim girl is recorded by the school certificate marked at Ex.P.18. Admittedly, the victim girl as on the date of incident was ten years old. 27. According to the case of the prosecution, accused who is acquainted with the complainant and her family members, visited the mother’s house of the complainant on 29.08.2011. Thereafter in the guise of seeking help to locate the house of Hajira (C.W.8), accused cajoled the victim girl to come out of the house. Believing the words of the accused, victim girl came out of the house around 8.00 p.m., and shown the house of Hajira (C.W.8) from a distance and was about to return to her house. It is at that juncture, the accused gagged the mouth of the victim girl and forcibly took her to the abandoned place (place of incident) and committed sexual assault. 28. When the mother of the complainant came in search of the victim girl, she found the victim girl in the naked state at the place of incident. Thereafter rescued her and - 14 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 brought back to her house and then went to the police Station. Police after verifying the case, referred the victim girl to medical examination, wherein the Doctor who examined the victim girl, gave a certificate after collecting the vaginal swab and receiving the FSL report which is marked at Ex.P.2. 29. Scratch abrasion was noted by the Doctor on the right forearm and scratch abrasions were also noted by the Doctor on the back, inner part of the left elbow, several other abrasions were noted as external injuries. 30. Final opinion of the doctor is at Ex.P.7, wherein the Doctor has stated that signs are suggestive that of recent sexual act are absent as per Forensic Science Laboratory report. 31. Taking note of these aspects of the matter, learned counsel for the appellant would contend that to attract the offence under section 376 (2) (f) IPC being absent, Trial Court ought not to have convicted the appellant for the offence punishable under Section 376 (2) (f) IPC. 32. In a matter of this nature, what is to be looked into is the oral testimony of the victim girl. She has been examined as P.W.2. She has stated that there was rubbing of the male - 15 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 part to her genitals after accused forcibly took her from the place where she had shown the house of Hajira (C.W.8). She has also stated that she sustained huge pain by the act of the accused and she felt like becoming unconscious. She has further stated that after hearing the loud noise by the persons who have assembled there, accused ran away from the spot after wearing the pant. 33. In the cross-examination, she has specifically stated that at the place of incident there was no proper light and accused gagged her mouth with the help of cloth. She further stated that accused slapped when she tried to escape from his clutches and thereafter scratched her back and inner part of the thigh. 34. In cross-examination, she reiterated the rubbing of male part of the accused with her genital part. 35. It is settled principles of law and requires no emphasis that to conclude the offence of rape, ejaculation of the sperm need not be established by the prosecution. The material evidence on record would be sufficient enough to establish that there was a penetration of male part into the genitals of victim girl to slightest extent by the accused. - 16 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 36. Though final opinion of the Doctor would not suggest the recent sexual intercourse, the swelling in the genitals of victim girl noticed by the Doctor apart from the other external injuries would be sufficient enough to infer that the offence of rape has taken place as is held by the learned Trial Judge. 37. Appreciation of the evidence in a matter of this nature is to be based on sound and logical reasons. In the absence of any previous enmity between the complainant and the accused, why complainant lodged complaint against the accused is a question that remains unanswered on behalf of the appellant. Moreover, appellant is aged about 26 years and victim is only about ten years and they were found in the place of incident and victim girl was naked when she was rescued. 38. Under such circumstances, in the absence of any previous enmity, no delay in lodging the complaint immediate medical examination would go to show that accused did commit rape on the body of the minor girl. 39. Moreover, place of incident being not having sufficient light, and ten years old girl being unable to depose as to the minor details in the act committed by the accused has - 17 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 been taken note by the learned Trial Judge while passing the impugned judgment. 40. On re-appreciation of the material evidence on record with the light of the grounds urged on behalf of the appellant, this Court does not find illegal infirmity or perversity in the finding recorded by the learned Trial Judge. 41. Moreover, taking away the minor girl under the custody of mother of the complaint in the guise of getting house located belonging to Hajira (C.W.8) and thereafter gagging the mouth of the victim girl and taking her to a lonely place (place of incident) itself would be sufficient to conclude all the necessary ingredients for the offence punishable under Section 366 IPC. 42. The abrasion injuries found on the body of the victim girl would be sufficient enough to maintain the conviction for the offence punishable under Section 323 and 324 IPC. Under such circumstances, point No.1 is answered in the Affirmative and point No.2 in the negative. Regarding point No.3: 43. Learned Trial Judge has granted minimum punishment of ten years rigorous imprisonment for the offence - 18 - NC: 2025:KHC:5921 CRL.A No. 1767 of 2018 punishable under Section 376 (2) (f) IPC. Therefore, no further interference on the sentence. Regarding point No.4: 44. In view of finding of this Court on point Nos.1 to 3, following order is passed: ORDER Appeal grounds are meritless and accordingly appeal stands dismissed. Sd/- (V SRISHANANDA) JUDGE MR