- 1 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO.1222 OF 2012 (C) BETWEEN: 1. SRI SHEIK SHAMSHUDDIN S/O ALLABAKSHA, AGED ABOUT 35 YEARS, RESIDING AT 2ND CROSS, BEHIND YASHODA BAKERY, ADITYA NAGAR, VIDHYARANYAPURA POST, BANGALORE-560097 …APPELLANT (BY SRI S RAGHAVENDRA, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY VIDHYARANYAPURA POLICE STATION 2. SMT.SALMA W/O MUBARAK R/AT IN FRONT OF GOVT. HOSPITAL MS PALYA, VIDYARANYAPURA POST BENGALURU – 560 097 …RESPONDENTS (BY SRI RAHUL RAI.K, HCGP OR R1; RESPONDENT NO.2 -PRESENT) THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED BY THE PRL. CITY CIVIL & SESSIONS JUDGE, BANGALORE IN S.C No.669/2010 DATED 11/10/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 342 AND 376 OF IPC. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri S. Raghavendra, learned counsel for the appellant and Sri Rahul Rai K, learned High Court Government Pleader for the respondent. 2. Victim is present before the Court and submits that she does not want to engage a separate counsel and learned High Court Government Pleader protects her interest in the appeal as well. 3. Accused who suffered an order of conviction in S.C.No.669/2010, dated 11.10.2012, on the file of Principal City Civil and Sessions Judge, Bengaluru for the offences punishable under Sections 376 and 342 IPC and sentenced to undergo simple imprisonment for seven years and six months and to pay fine of Rs.5,000/- and Rs.1,000/- respectively for both the offences and in default, rigorous imprisonment for one and half year and simple imprisonment for two months, is the appellant. 4. Facts in brief which are utmost necessary for disposal of the present appeal are as under: - 3 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 A complaint came to be lodged at Vidyaranyapura police station, Bengaluru, contending that accused being the uncle of the victim, had taken his wife to the hospital on 27.02.2010 and then left his wife in her parental house and alone returned to the house at about 1.00 p.m. At that juncture, the victim was washing clothes in the house. Victim girl was taken to the house of the accused in the guise of assisting the wife of the accused as the wife of the accused had become pregnant. Taking advantage of loneliness of victim girl, accused said to have confined her in the bed room by locking the door of the house and thereafter said to have committed forcible sexual intercourse on the victim girl who was minor girl. 5. When the matter was reported to the parents of the victim girl, a complaint was lodged based on the statement given by the victim girl. 6. Police after receiving the complaint, conducted the detailed investigation and filed the charge sheet. 7. Learned Trial Magistrate took cognizance and registered the case as C.C.No.22049/2010 and later on committed the matter to the Sessions Court for trial. - 4 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 8. Learned sessions Judge secured the presence of the accused and framed the charges. Accused pleaded not guilty. Therefore, trial was held. 9. In order to bring home the guilt of the accused, prosecution examined 14 witnesses as P.Ws.1 to 14 and placed on record 11 documentary evidence which were produced and marked as Exs.P.1 to P.11. 10. Among the prosecution witnesses, victim is examined as P.W.6. P.Ws.1 to 4 are the police personnel. P.W.5 is the doctor who examined the victim girl. P.Ws.6 to 10 are the private witnesses, P.W.11 is the father of the victim girl, P.Ws.12 and 13 are the investigating officers. 11. Among the documentary evidence, Ex.P.1 is the report filed by P.W.3. Ex.P.2 is the medical certificate of the victim – PW.6, Ex.P.3 is the potency certificate of the accused, Ex.P.4 is the spot mahazar, Ex.P.5 is the complaint, Ex.P.6 is the contradiction elicited in the cross-examination of P.W.11, Ex.P.7 is the FIR, Ex.P.8 is the spot sketch, Ex.P.9 is the property folio No.26/2010, Ex.P.10 is the FSL report, Ex.P.11 is the statement of P.W.14. - 5 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 12. On conclusion of recording of evidence, accused statement as is contemplated under Section 313 Cr.P.C. was recorded, wherein accused denied all the incriminatory circumstances and did not choose to place any defence evidence. 13. Thereafter learned Trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section 376 IPC and sentenced as under: “The accused Sheik Shamshuddin is sentenced to undergo Rigorous lmprisonment for 7 (seven) years and to pay a fine of Rs.5,000/- (five thousand) and in default of payment of fine amount, the accused shall undergo further rigorous imprisonment for 1½ year (one year six months) for the offence u/s 376 of IPC. The accused is sentenced to 'undergo Simple Imprisonment for 6 (six) months and to pay a fine of Rs.1,000/- (one thousand) and in default of payment of fine amount, the accused shall undergo further simple imprisonment for 2 (two) months for the offence u/s 342 IPC. Both the sentences shall have to run concurrently.” - 6 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 14. Being aggrieved by the same, accused is before this Court in this appeal. 15. Sri Raghavendra. S, learned counsel for the appellant contended that the material evidence on record would not warrant in maintaining of the conviction of the appellant for the offence punishable under Section 376 IPC, more so, when the other corroborative material evidence placed on record would not sufficiently corroborate the testimony of the victim girl. 16. He would also contend that the financial transactions existed between the father of the victim and the accused has been taken advantage in foisting false case against the appellant and thus, sought for allowing the appeal. 17. He would further contend that admittedly the material evidence and the oral evidence of the victim girl are not tallying with each other. Therefore, case of the prosecution is to be doubted and if any such doubt is available in the case of the prosecution, such doubt should always enure to the benefit of the accused and thus, sought for allowing the appeal. - 7 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 18. Per contra, Sri Rahul Rai K., learned High Court Government Pleader supports the impugned judgment. 19. He would further contend that the complaint filed against the accused who is none other than the uncle of the victim. Therefore, the case of the prosecution is to be viewed seriously and there is no doubt in the case of the prosecution inasmuch as the victim girl was ultimately rescued from the house of the appellant and thus, sought for dismissal of the appeal. 20. He would further contend that the oral testimony of P.W.14 and P.W.11, parents of the victim girl, are serious and significant enough for dismissal of the appeal. 21. He would also contend that mere fact that there existed a financial transaction between the father of the victim girl and the appellant would not be sufficient enough to doubt the case of the prosecution and sought for dismissal of the appeal. 22. Taking note of these aspects of the matter in the light of above contentions, following points would arise for consideration: - 8 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 1) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 376 and 342 IPC? 2) Whether the impugned judgment suffers from legal infirmity and perversity and thus calls for interference? 3) Whether sentence needs modification? 4) What order? 23. Regarding point Nos.1 and 2: In the case on hand, relationship between the victim and appellant is not in dispute. So also on the day of incident, victim living in the house of the appellant is not in dispute. 24. Case of the prosecution would reveal that on 27.02.2010 after leaving the wife of the accused to her parental house, accused came alone to the house at 1.00 p.m., and at that time victim girl was washing the clothes. 25. It is at that juncture, the alleged incident had happened. According to the prosecution, by confining the victim girl in the bed room, accused has committed forcible sexual intercourse on her. - 9 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 26. As rightly argued on behalf of the appellant that the material evidence on record would not conclusively establish the element of forcible sexual intercourse committed by the appellant on the victim girl. 27. In a matter of this nature, taking note of the age of the victim girl, tutoring the victim girl in a particular way cannot be ruled out. Moreover, victim who is present before the Court in unequivocally submitted that she has deposed before the Court as per the instructions of her father. Medical evidence do not support the case of prosecution in entirety. However, materials on record would be sufficient enough to maintain conviction of appellant for remaining offences. 28. Taking note of these aspects of the matter, this Court is of the considered opinion that for want of necessary ingredients being established to attract the offence punishable under Section 376 IPC, the charge leveled against the accused must be scaled down to offence under Section 354 IPC instead of 376 IPC. 29. Accordingly, point Nos.1 and 2 are answered partly in the affirmative. - 10 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 30. Regarding point No.3: In view of finding of this Court on point Nos.1 and 2 as above, while scaling down the offence punishable under Section 376 IPC to the offence punishable under Section 354 IPC, if the custody period already undergone by the appellant is treated as period of imprisonment by enhancing the fine amount in a sum of Rs.25,000/- payable by the appellant which can be in turn paid as compensation to the victim girl, ends of justice would be met. Accordingly, point No.3 is answered partly in the affirmative. 31. Regarding point No.4: In view of finding of this Court on point Nos.1 to 3, this Court pass the following: ORDER (i) Appeal is allowed in part. (ii) Appellant is acquitted for the offence punishable under Section 376 IPC and instead convicted for the offence punishable under Section 354 IPC and conviction of appellant for the offence under section 342 is maintained. (iii) Custody period already undergone by the appellant is treated as imprisonment for the - 11 - NC: 2025:KHC:6330 CRL.A No. 1222 of 2012 offence punishable under Sections 342 and 354 IPC by enhancing the fine amount in a sum of Rs.25,000/-, payable on or before 15th of March, 2025. (iv) After deposit of the entire fine amount, the same shall be paid as compensation to the victim girl – P.W.6, under due identification. (v) Failure to make payment of the enhanced fine amount on or before 15th March, 2025, the appellant shall undergo simple imprisonment for a period of one year. (vi) Office is directed to return the Trial Court Records with copy of this Court order forthwith. Sd/- (V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 8