- 1 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1246 OF 2020 (C) BETWEEN: SRI. RAMU AGED ABOUT 29 YEARS, S/O MUNISWAMY R/AT GORLACHINNEPALLI VILLAGE, BETHAMANGALA HOBLI, BANGARPET TALUK, K.G.F. KOLAR DISTRICT - 563 113 …APPELLANT (BY SRI. VEERANNA G TIGADI, ADVOCATE) AND: 1. STATE OF KARNATAKA REPRESENTED BY PSI BETHAMANGALA POLICE STATION BANGARPET TALUK KOLAR DISTRICT - 563 116 REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BENGALURU - 560 001 2. SMT. CHAMUNDI AGED ABOUT 39 YEARS, W/O VENKATARAM R/AT GORLACHINNEPALLI VILLAGE, BETHAMANGALA HOBLI, K.G.F., KOLAR DISTRICT - 563 116. …RESPONDENTS (BY SMT. RASHMI JADHAV, ADDL. SPP, FOR R1 SMT. SOWMYA SRIDHAR, ADVOCATE FOR R2 (AB)) THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 27.01.2020 PASSED BY Digitally signed by NANDINI B G Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR IN S.C.NO.1/2019 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376 OF IPC AND SECTION 6 OF POCSO ACT. THE ACCUSED IS SENTENCED TO UNDERGO S.I FOR A PERIOD OF SEVEN YEARS WITH FINE OF RS.5000/- FOR THE OFFENCE P/U/S 376 OF IPC IN CASE OF DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO FURTHER IMPRISONMENT OF ONE MONTH. FURTHER THE ACCUSED IS SENTENCED TO UNDERGO S.I FOR A PERIOD OF 20 YEARS WITH FINE OF RS.10,000/- FOR THE OFFENCE P/U/S 6 OF POCSO ACT IN CASE OF DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO FURTHER IMPRISONMENT OF ONE MONTH. THE SENTENCES SHALL RUN CONCURRENTLY. AND THE APPELLANT PRAYS THAT HE BE ACQUITTED. THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT The accused in SC No. 1 of 2019 on the file of the learned II Additional District and Sessions Judge at Kolar, is impugning the judgment of conviction and order of sentence dated 27.01.2020, convicting him for the offence punishable under Section 376 of Indian Penal Code (for short, 'IPC'), and under Section 6 of the Protection of Children from Sexual Offences Act (for short, the 'POCSO Act'), sentencing him to undergo simple imprisonment for a period of 7 years with fine of Rs.5,000/- for the offence punishable under Section 376 of IPC and sentenced him to undergo simple imprisonment for a period of 20 years - 3 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 with fine of Rs.10,000/- for the offence punishable under Section 6 of POCSO Act, with default sentences. 2. Brief facts of the case are that, PW1, the mother of the victim girl has filed first information as per Ex.P1 against the accused, contending that on 02.11.2018 at 04.00 p.m., when PW.2-victim girl aged 12 years, had gone to his lands, accused No. 1 came and removed her clothes, tried to commit rape. Further two months earlier to the said incident when the victim girl had gone to bring haystack, the accused had pushed her to the ground and committed rape, punishable under Section 376 of IPC, and that by having sexual intercourse with the minor girl, the accused has committed the offence of aggravated penetrative sexual assault punishable under Section 6 of POCSO Act. The police, after registering the FIR against the accused, conducted investigation, and subjected the victim and the accused for medical examination. Statement of the victim girl was recorded under Section 164 of Cr.PC as per Exhibit P10 and after completing the investigation, the charge sheet came to be filed. - 4 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 3. The Trial Court took cognizance of the offence and summoned the accused. The accused appeared before the Trial Court and pleaded not guilty. The prosecution examined PWs.1 to 10, got marked Exhibits P1 to 20 and identified material objects as MOs.1 to 9 in support of its contention. The accused has denied all the incriminating materials available on record, but has not chosen to lead any evidence in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and convicted and sentenced the accused as stated above. Being aggrieved by the same, the accused is before this court. 4. Heard Sri.Veeranna G. Tigadi, learned for the appellant and Smt.Rashmi Jadhav, learned Additional SPP for respondent No.1-State and Smt.Sowmya Sridhar, learned counsel for respondent No.2. Perused the materials including the Trial Court records. - 5 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 5. In light of the rival contentions urged by learned Counsel for both parties, the point that would arise for my consideration is as under: "Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the above point is 'partly in the affirmative' for the following: REASONS 6. It is the contention of the prosecution that on 02.11.2018, the accused had tried to commit rape on the minor girl, aged 12 years by removing her clothes, and two months earlier to the said incident, the accused had committed rape on her and thereby he has committed the offence punishable under Section 376 of IPC and under Section 6 of the POCSO Act. To prove its contention, the prosecution examined PW.1, the mother of the victim girl, the informant, who lodged the first information as per Ex.P1. The mother does not say anything about the earlier incident where the accused has committed rape on the victim girl. Neither it is stated in the - 6 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 first information Ex.P1. She states that she had seen the incident on 02.11.2018 where both the accused and the victim were naked with the clothes thrown nearby. On seeing her coming to the spot, the accused had ran away from the scene. 7. PW2 is the victim girl. She has deposed before the Court that the accused is her uncle and he spoiled her. The witness also stated that earlier to the said incident when she had gone to fetch haystack, he had committed rape on her. No details were elicited by the learned Prosecutor from the victim regarding commission of the offence on two different occasions. 8. It is pertinent to note that the doctor who examined the victim is examined as PW10. She has categorically stated in her evidence that she had not seen the signs of recent sexual assault or rape on the victim girl. Since there were injuries on the body of the victim, she is of the opinion that there may be an attempt to commit rape. The witness states that if the sexual assault is committed within 24 hours, she will consider it as recent sexual assault. 9. Exhibits P.19 and 20 are the medical records issued by PW10. As per Exhibit P19, the certificate of medical - 7 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 examination of the victim of rape, she was examined on the very same day i.e. on 02.11.2018 at 08.42 p.m. As per the case made out by the prosecution, the incident had occurred on 02.11.2018 at about 4.00 p.m. As per Exhibit P20, the final opinion of the Medical Officer-PW10, there was no evidence of recent sexual intercourse, but there is evidence of physical assault. If at all then was penetrative sexual assault on the victim just about 4-5 hours earlier to her examination, definitely the medical officer could have referred to it as there was recent sexual assault or rape. 10. When such a clear case is made out by the prosecution itself, it cannot be said that the accused has committed aggravated penetrative sexual assault either to attract Section 376 of IPC or to attract Section 6 of POCSO Act. To attract Section 376 of IPC, the ingredients of Section 375 of IPC is required to be satisfied. The prosecution has led the evidence in a shabby manner without any details or particulars. Simply because the victim states that she was spoiled by the accused, the same cannot be stretched to contend that the prosecution has proved commission of rape by the accused, - 8 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 that too when the medical evidence is very clear that there was no signs of recent sexual intercourse. Under such circumstances, I am of the opinion that the accused is liable for conviction under Section 376 of IPC. 11. Even though the prosecution is not successful in making out a case for convicting the accused for the offence under Section 6 of the POCSO Act, as the materials on record do not fall under any of the clauses of Section 5 of POCSO Act, however, it is sufficient to attract Section 7 of POCSO Act. The victim refers to the act of the accused that he had touched her private parts, breast, etc. Compelled with the evidence of the informant, it could be concluded that the accused had committed the offence under Section 7 of POCSO Act punishable under Section 8, for which he is liable for conviction. 12. I have gone through the impugned judgment of conviction and order of sentence. The first information does not say that there was commission of rape or aggravated penetrative sexual assault. The charge framed by the Trial Court is for the offence of attempting to commit rape on the victim girl. The medical evidence, both oral and documentary - 9 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 i.e. the evidence of PW10, and Exhibits P19 and 20 suggests that there was only an attempt to commit rape, and there was no complete act either to attract under Section 376 of IPC or under Section 6 of the POCSO Act. Ignoring all these facts, the Trial Court proceeded to convict the accused for the offence punishable under Section 376 of IPC and under Section 6 of POCSO Act. 13. The Trial Court has also ignored Section 42 of POCSO Act which provides for alternative punishment. When the offence under Section 376 and under the provisions of POCSO Act are proved and the offender is found guilty of such offences, he shall be liable for punishment either under IPC or under POCSO Act considering the degree of punishment and to impose the punishment which is greater in degree. The Trial Court has lost sight of this provision of law. 14. It is also pertinent to note that even though the Trial Court proceeded to convict the accused for the offence under Section 6 of POCSO Act, it proceeded to sentence the accused to undergo simple imprisonment for a period of 20 years. Whereas the punishment prescribed under Section 6 of - 10 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 POCSO Act is rigorous imprisonment which shall not be less than 20 years. Therefore, I am of the opinion that the Trial Court has not applied its mind either to the facts of the case or to the provisions of law before proceeding to convict and sentence the accused. Hence, the impugned judgment of conviction and order of sentence calls for interference. Accordingly, I answer above point partly in the affirmative and I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment of conviction and order of sentence dated 27.01.2020 passed in S.C.No.1/2019 by the II Additional Sessions Judge at Kolar, against the accused for the offence punishable under 376 of IPC and under Section 6 of POCSO Act, are hereby set aside. iii. The accused is acquitted for the offence punishable under Section 376 of IPC and under Section 6 of POCSO Act. However, he is convicted for the offence punishable under Section 8 of POCSO Act and he is sentenced to undergo imprisonment for a - 11 - HC-KAR NC: 2025:KHC:20200 CRL.A No. 1246 of 2020 period of 5 years with fine of Rs.10,000/-. In case of default of payment of fine, he shall undergo imprisonment for a period of 1 year. iv. It is stated that the accused was apprehended on 03.11.2018 and since then he is in judicial custody. Prima-facie it appears that he has already served the sentence of 5 years. However, he is liable to pay fine. Registry to communicate this order to the Chief Superintendent, Central Jail, Parappana Agrahara, Bengaluru for information, and for needful action and send back the original records along with the copy of this judgment to the Trial Court, for needful action. Sd/- (M G UMA) JUDGE MKM List No.: 2 Sl No.: 3