- 1 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.879 OF 2020 BETWEEN: SRI RAVI T. NAIKA S/O NARAYANA NAIKA AGED ABOUT 35 YEARS R/AT THALEHITHLU HOUSE 34, NEKKILADY VILLAGE PUTTUR TALUK D.K. DISTRICT- 574235 PRESENTLY LOGDED AT CENTRAL PRISON SHIVAMOGGA, KARNATAKA CTP NO.599 …APPELLANT (BY SRI. JAVEED S, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY UPPINANGADY P S PUTTUR TALUK, D K DISTRICT, KARNATAKA REPRESENTED BY STATE PUBLIC Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE - 560001 2. SMT. SARASWATHI W/O LINGAPPA NAIKA AGED ABOUT 43 YEARS R/AT NEKKILADY VILLAGE PUTTUR TALUK D.K. DISTRICT-574325 (AMENDED VIDE COURT ORDER DATED 13.06.2023) …RESPONDENTS (BY SRI CHANNAPPA ERAPPA, HCGP FOR R1; MS. ANAGHA J PRAKASH, ADVOCATE FOR R2) THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION 14.02.2020 AND ORDER OF SENTENCE DATED 06.03.2020 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS AND SPECIAL JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K. IN SPL.C.NO.07/2017 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(2), (f), (i) AND 506 OF IPC AND SECTION 5(m), 6, 7 AND 8 OF POCSO ACT AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT This appeal is filed challenging the judgment of conviction and sentence passed in Spl. Case No.7/2017 for the offences punishable under Section 376(2)(f)(i), 506 of IPC and Section 5M, 6, 7 and 8 of the Protection of Children from Sexual Offences Act. 2. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the prosecution before the Trial Court that on 21.10.2016 at about 4.30 p.m., this appellant/accused took the child who is aged about 7 years to hilly area and this appellant is non-other than the cousin knowing fully well that she was a minor child, touched her vegina and lay her on the floor, lifted her skirt, removed her underwear, caressed her private part and committed forcible sexual intercourse on - 4 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 her and also threatened the victim girl to kill her if she discloses about the incident to her parents. Accordingly, a complaint was lodged and based on the complaint of the mother of the victim, case was registered for the aforesaid offences. 4. Based on the complaint, the police have registered the case and apprehended the accused and investigated the matter and filed the charge-sheet citing 21 witnesses. The Trial Court took the cognizance as well as secured the accused and the accused was in custody through the trial. The prosecution in order to prove the case, examined the witnesses as PW1 to PW12 and got marked the documents at Ex.P1 to P17 and accused was subjected to 313 statement and he did not choose to lead any defence evidence. The Trial Court considered the evidence of PW1 - victim girl as well as PW2 - mother of the victim girl; PW3 - maternal uncle of the victim; the evidence of PW6 who particularly speaks about the document with regard to school records of the victim girl; - 5 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 evidence of PW7 – doctor who examined the victim and also the evidence of PW8 who conducted the medical examination of accused and evidence of PW9 to PW12 who are formal witnesses i.e., ASI, Head Constable and Investigating Officer and convicted the accused in coming to the conclusion that the accused had committed the offences invoked against him and sentenced him. 5. 5. The main contention of the counsel for the appellant that the Trial Court committed an error in relying upon the evidence of PW1 to PW3 as well as evidence of doctor - PW7 since there are material contradictions in their evidence. The counsel also would vehemently contend that PW2 admitted that during those days i.e., before medical examination of the victim girl, she had given bath to her and she did not observe any signs of rape on the body of PW1 and further, she admitted that during those days, the victim girl was taking food as usual and playing in the house. PW2 also says that she did not inform about the incident to the family of the accused and - 6 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 PW2 had no impediment to take the victim girl to the hospital on the evening of 24.10.2016 itself and there was a delay in lodging the complaint and PW2 did not notice any stains of mud on the dress of victim girl on 21.10.2016 and Trial Court fails to consider all these material and particularly, the admission given by PW2 in her cross-examination. The Trial Court has erred in over looking the admission made by PW3 who admitted that complaint dated 25.10.2016 lodged by PW1 was filed at his behest and he admits that there was no impediment to take the victim girl to the hospital for medical check up immediately and the counsel further contends that the Trial Court fails to consider the admission of PW5 so also PW7 wherein PW7 categorically deposed that there are possibilities of victim girl suffering pain on the date of the alleged incident and she may not be in a position to walk comfortably. Hence, there is a contradictions in the admission of PW2 and the Trial Court fails to take note of all these materials while convicting the accused. - 7 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 6. Per contra, the learned counsel appearing for the State would vehemently contend that this accused being the cousin of the victim girl, taken the advantage of the girl who is alone in the house and took her to a hilly area and subjected her for sexual act and also caused treat not to disclose the same to her parents. The counsel also would vehemently contend that when she was getting pain, she informed the same to her mother and immediately, a complaint was lodged and statement of victim also recorded before the learned Magistrate and she has reiterated the same with regard to the sexual act is concerned and causing of life treat. The counsel also would vehemently contend that evidence of PW2 and PW3 corroborates with the evidence of PW1. Apart from that medical evidence of PW7 and FSL report is very clear with regard to subjecting the victim girl for sexual act and FSL report is also positive and found his swab on the cloth of the victim. Having considered the same only, the Trial Court rightly convicted the accused for the aforesaid offences. - 8 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 7. The learned counsel for respondent No.2/complainant also reiterates the submission made by the counsel for the State and particularly relies upon the evidence of the doctor as well as PW1, PW2 and FSL report and contend that evidence of PW7 is very clear that material on record suggestive of subjecting her for sexual act. In the defence, nothing is elicited with regard to the medical evidence is concerned except eliciting that they were not cordial. 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the points that would arise for the consideration of this Court are: 1. Whether the Trial Court committed an error in convicting and sentencing the accused for the offences invoked against him and fails to consider the contradictions elicited from the prosecution witnesses and - 9 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 whether it requires interference of this Court? 2. What order? Point No.1 9. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that it is a specific case of the prosecution that on 21.10.2016 at about 4.30 p.m., this accused took the victim girl to a hilly area and subjected her for sexual act. The Court has to look into the evidence available on record to see that whether the same inspires the confidence of the Court to bring the accused to home. The Trial Court also having particularly considered the evidence of PW1, taken note of the fact that victim girl was aged about 7 years old and she is pursuing the studies of second standard. In her evidence in camera proceedings, the Trial Court taken note of her capacity to give evidence since her age was below 12 years and only after satisfying about her confidence, recorded the evidence. The consistent statement of PW1 shows that - 10 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 accused person induced her to show an Uda (monital lizard) in the nearby hill, he took her when her parents were not in the house and accused person removed his underwear and also removed her cloth and inserted his penis into her vegina, due to which, she suffered pain and further she stated that he threatened her not to disclose the same to her parents. When she experienced the pain, she revealed the same to her mother and she had also shown abdomen in the witness box and deposed that she suffered pain in that area and mahazer was also conducted in her presence in the hill and the same was marked as Ex.P1. 10. The mother of the victim also examined as PW2 wherein she deposed that she gave the complaint as per Ex.P2 and also identifies her signature and she also reiterated what the victim has revealed with her when she has suffered injuries from getting the pain. 11. The prosecution also relied upon the medical evidence of PW7 wherein the doctor deposed that the - 11 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 victim girl was subjected to sexual act and PW7 also categorically says that no external injuries were present on the body but found labia minor was appeared edematous (swollen), vaginal introitus was congested and hymen had appeared at 5 O’clock position and the torn edges were edematous and PW7 gave provisional opinion saying that there are signs suggestive of forceful penetrative sexual intercourse which might have occurred approximately 70-72 hours before the time of examination since complaint was given belatedly and victim was taken to the hospital after lodging the complaint. The doctor also relied upon RFSL report wherein presence of blood stains in skirt and vulval swabs and final opinion is, there are signs suggestive of forceful penetrative sexual intercourse which might have occurred approximately 70- 72 hours before the time of examination. No doubt, this witness was subjected for cross-examination and elicited that injuries caused to the victim girl was not severe but there are possibilities of suffering pain by the victim girl on the date of alleged incident and she may not be in a - 12 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 position to walk comfortably. It is also elicited that there are chances of tearing of hymen of a girl at the time of playing and categorically says that there are no chances of tearing of hymen at the time of itching. However, it is elicited that if above incidence was occurred, the mother of the victim girl might have noticed the above injuries on the date of the incident itself. Now, the question before this Court is that whether the answer elicited from the mouth of PW7 takes away the case of the prosecution. It is important to note that RFSL report which is marked as Ex.P16 discloses about description of the article particularly item No.2 that is one sealed cloth packet containing one T-shirt and one sealed cloth packet containing one skirt as per article ‘C’ and article ‘contains one sealed paper envelope said to contain vulval swabs (in a plastic vial) and the opinion is also very clear that presence of blood stain detected in Article Nos.’C’ and ‘Q’ but the same are insufficient for serological examination and hence, it is clear that not only the medical evidence - 13 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 supports the case of the prosecution but and RFSL report supports the case of the prosecution. 12. Apart from that PW2 who is the mother of the victim reiterates the averments made by the victim before the learned Magistrate as well as made the statement before her and she also says that on coming to know about the said act, she lodged the complaint. It is suggested that they were having enmity but PW2 denies the same but admits that their house is near the house of PW2. PW2 also says that prior to the incident, they used to visit the house of the accused and also admits that she used to bath her daughter but she did not notice any injuries on the body but only when the victim girl complain about the pain in the private part, she came to know about the alleged incident. PW2 categorically says that she only informed to her brother and she immediately lodged the complaint and taken the victim to the hospital. PW2 categorically says she intimated about the incident to her brother and after lodging of the complaint only police - 14 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 came to their house. A suggestion was made that they were having an intention to perform the marriage with accused i.e., her senior aunt’s grand daughter and the said suggestion was denied. Though an attempt was made suggesting that they were having ill-will against each other, nothing is elicited in the cross-examination of PW2 in this regard and nothing is elicited in the cross- examination to disbelieve the evidence of PW2. 13. PW3 also speaks that he came to know about the alleged incident through her sister and lodging of complaint in terms of Ex.P3 and he says that on the date when he visited the house of his sister, there was a darkness and hence, not lodged the complaint and also did not enquire with the parents of the accused and nothing is elicited in the cross-examination of PW3 also to disbelieve the evidence of PW3. 14. Having considered the over all evidence of PW1 who is the victim and evidences of PW2 and PW3 who are the material witnesses since they came to know about the - 15 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 incident when PW1 revealed the same and also considering the evidence of doctor - PW7 wherein she clearly deposed with regard to subjecting the victim girl for sexual act and also about the injuries found on the private part of the victim as well as FSL report which is marked as Ex.P16, the Trial Court convicted the accused. When such materials are available before the Court, the question of interfering with the finding of the Trial Court does not arise since the evidence of witnesses are consistent and nothing is elicited from the mouth of these witnesses to disbelieve the case of the prosecution and even PW1 though admits with regard to that they were not cordial but the fact is that the accused is none other than the cousin who is aged about 38 years and the victim was aged about 7 years at the time of the incident. The report of the doctor in terms of Ex.P10 also discloses the history given by the victim when she was taken to the hospital and also on examination, remarks also mentioned in the document itself that last attempt to intercourse had taken place on 21.10.2016 at 68 to 70 hours back from the time of - 16 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 examination. When such material is available on record, it is not a case for interfering with the finding of the Trial Court. Accordingly, I answer the above point as negative since there are no contradictions in the evidence of prosecution witnesses to comes to a other conclusion. 15. The counsel for the appellant at this stage makes the submission that already the appellant underwent the sentence and the accused was in custody for a period of 7 months 25 days during the trial and subsequent to the conviction, he has been in custody from 2020 and in all, he is in custody from 5 years 10 months and the same may be set off. The said submission cannot be accepted having taken note of the fact that victim is only aged about 7 years at the time of the incident and also the accused being the cousin, ought to have taken care of the child instead of that the accused had taken advantage of the loneliness of the victim when her parents were not at the house, committed the aforesaid offences and the medical evidence and victim evidence - 17 - NC: 2025:KHC:12159 CRL.A No. 879 of 2020 corroborates with each other. Under such circumstances, question of setting off the period of sentence which he underwent does not arise. Hence, the said contention is also not accepted. 16. The learned counsel for respondent No.2 submits that this Court may direct to pay compensation of Rs.2,50,000/- and the same was not paid in view of pendency of this appeal. Hence, directed to disburse the said amount in view of disposal of this appeal within the statutory period. 17. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. The judgment of conviction and sentence passed in Spl. Case No.7/2017 is confirmed. Sd/- (H.P.SANDESH) JUDGE SN