- 1 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 100062 OF 2022 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB INSPECTOR, MUNDAGOD POLICE STATION, UTTARA KANNADA DISTRICT, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH-580001. …APPELLANT (BY SRI. M.B. GUNDWADE, ADDL. SPP.) AND: SHRI DEVRAJ S/O SHEKAPPA BHOVIVADDAR AGE-22 YEARS, OCC-COOLIE, R/O: KAVALKOPPA MUNDAGOD-581349, DISTRICT-UTTARA KANNADA. …RESPONDENT (BY SRI. SHIVAKUMAR S. BADAWADAGI, ADVOCATE) V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.04.2021 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1, UTTARA KANNADA, KARWAR, AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.04.2021 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1, UTTARA KANNADA, KARWAR IN SPECIAL CASE NO.78/2019, AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE U/S 354(D), 376 OF IPC AND U/S 4,6 AND 12 OF POCSO ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This is an appeal by the State against the judgment of acquittal dated 30.04.2021, in Sessions Case No.78/2019, by the learned Additional District and Sessions Judge/FTSC- I, U.K.Karwar (Special Court for trial of cases filed under POCSO Act) (for short, `trial Court'). 2) The accused was charge sheeted for the offences punishable under Section 376, 354(d) of IPC and Section 4, 6 and 12 of the POCSO Act. After trial, the learned trial - 3 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 Judge acquitted the accused of the said charges by the impugned judgment. Same is challenged by the State, in this appeal. 3) The parties are referred to as per their rakings before the trial Court. 4) It is the case of prosecution that PW.1 victim is the daughter of PW.4-Smt.Timmakka Savanur and she was aged about 16 years at the time of incident. She was studying in High School situated at Siddapura, Kondli School and staying at hostel. She used to contact her uncle by name Ganesh over telephone. On one day, when she called the said Ganesh, the accused received the said phone call and he introduced himself to PW.1. Thereafter he was regularly contacting her over phone. On one Sunday, as requested by the accused PW1 went to market wherein accused met her and told her that he fell in love with her and he would marry her. Thereafter he persuaded her and took her to a forest situated near Kondli hostel and had sex with her, inspite of her refusal, knowing very well that she - 4 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 was a minor. After sexual intercourse, he gave her a pill, informing her that if she consume the said pill, she would not become pregnant. On another Sunday also he took her to the very same area and once again had sexual intercourse with her and forced her to consume a pill stating that if she consume the said pill, she would not become pregnant. 5) Accused persuaded PW.1 to get admission in a High School situated at Mundagoda, since he was also studying in the college at Mundagoda. As per the persuasion of accused, PW.1 got admitted herself at Adi Jambava School at Mundugoda. 6) About three months prior to filing of the complaint, on one day, accused came to Hanumapura of Mundugoda Taluk to attend a function of one of his relatives and on that day also he visited the house of PW.1 and assured her that he would marry her and had forceful sexual intercourse with her against her refusal, knowing very well that she was minor at that point of time. A week - 5 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 after the said incident again he visited her house and sexually assaulted her. 7) About two months prior to filing of the complaint, on one day, she was waiting in a bus stand at Mundgod to go to her village. Around 2:00 p.m., accused came to bus stand and took PW.1 behind the bus stand and gave her a pill and forced her to consume the same. Accordingly, she consumed the pill. Thereafter she was feeling giddiness and she became unconscious. When she regained consciousness, she found that along with accused she was sitting in the very same place. Thereafter both left the said place and went to their respective house. After reaching house, she found bleeding from private part of her body. She told this fact to her mother and on further inquiry, she disclosed sexual act of the accused with her. Her mother enquired with the accused and the accused assured that he would marry her. 8) The accused or his parents did not approach parents of victim about marriage of the accused with PW.1. - 6 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 On the other hand, they told to relatives of victim that they were not interested in performing marriage of the accused with PW.1. In view of these reasons, she lodged a complaint on 27-08-2019 before Mundgod Police Station as per Ex.P.1. 9) The Station House Officer of the said police station received the complaint (Ex.P.1) and on that basis, registered a case in Crime No.146 of 2019 under Section 354 (d) of Indian Penal Code and Section 12 of the POCSO Act. PW.19-Sivananda Chalwadi, Dy.S.P took up further investigation, drew mahazar of the spot of incident, recorded the statement of material witnesses, referred both accused as well as PW.1 to the Medical Officer for medical examination and collected relevant documents and on conclusion of the investigation, submitted the charge sheet before the Special Court against the accused for the offences punishable under Section 354(d), 376 of Indian Penal Code and Section 4, 6 and 12 of POCSO Act. - 7 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 10) During investigation, accused was arrested and he was produced before the special Court. Thereafter, he was remanded to judicial custody. The accused was in judicial custody from the date of his arrest till passing of the judgment by the trial Court. Copy of charge sheet and enclosures were supplied to the accused as provided under the law and on hearing the accused, the learned special Judge framed the charges against the accused and the accused pleaded not guilty for the said charges. 11) The prosecution to prove its case examined 19 witnesses as per PW.1 to 19 and got marked 42 documents as per Ex.P.1 to 42 and closed its evidence. The learned special Judge examined the accused under Section 313 of Cr.P.C and his answers were recorded. Accused did not lead any defence evidence. However, in the cross-examination of PW.1, part of her previous statement was got marked as Ex.D.1. 12) The learned trial Judge, after hearing both the parties and appreciating material available on record, - 8 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 acquitted the accused of the alleged charges by the impugned judgment dated 30.04.2021 and same is challenged by the State in the present appeal. 13) We have heard the arguments of learned Additional Special Public Prosecutor and learned counsel for the respondent/accused. 14) The learned Additional Special Public Prosecutor vehemently contended that PW.1 is a victim of the incident. She has reiterated the allegations made in the complaint. Even prior to her evidence recorded before the Court, she was examined by the learned Magistrate under Section 164 of Criminal Procedure Code and before the Magistrate also, she has stated that the accused raped her against her wish, knowing very well that she was a minor at the time of said incident. In the cross-examination of PW.1, nothing was brought out to disbelieve her evidence. The prosecution examined the mother of PW.1 as PW.4. She has corroborated the evidence of PW.1. The prosecution examined PW.16 i.e. the Medical Officer, who examined - 9 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 PW.1 and gave certificate as per Ex.P.37-39. The prosecution has also secured FSL report, which also corroborate evidence of PW.1. These materials conclusively prove that accused had committed rape on the victim girl, who was a minor. 15) Learned Additional Special Public Prosecutor has further submitted that PW.1 as well as PW.4 in their evidence have stated that at the time of alleged incident, PW.1 was aged about 16 years. To prove that PW.1 was a minor at the time of incident, prosecution examined PW.10, who was Headmaster of Government High School and he issued two copies of transfer certificate as well as certificate of birth issued as per the records mentioned in the register. The prosecution has also examined PW.10 who is Headmistress of Higher Primary School, Haladakatta and she has also stated that date of birth as per the records maintained by the school was 03-09-2003. Accused though denied the date of birth of the victim, however nothing was brought out to disbelieve the evidence of PW.10 and PW.11 - 10 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 and documents produced at Ex.P.23-25 and also copy of the birth certificate and transfer certificate issued by PW.10. The said records reveal that PW.1 was aged about 16 years at the time of alleged incident. 16) It is further contended that the prosecution has examined the Medical Officer as PW.16 who has supported the case of prosecution about rape committed on PW.1. PW.19 is Investigating Officer. He has narrated investigation made by him and he has also produced the documents which are relevant to prove the guilt of the accused. All these documents are sufficiently prove that accused has committed offences alleged against him. The learned trial Judge has not properly appreciated the evidence of prosecution witnesses. The learned trial Judge has given much importance to the mistake in the name of father mentioned in the birth certificate as well as the school records maintained by PW.11. The said fact is not material. For the sake of discussion, even if it is considered that she was a major at the time of incident, then according - 11 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 to evidence of PW.1 accused has committed sexual intercourse with her against her wish and thereby, he has committed an offence punishable under Section 376 of IPC. The accused has already been charge-sheeted and charges also framed against him for the offence punishable under Section 376 of IPC. These facts were not properly appreciated by the learned trial Judge and without sufficient reasons, acquitted the accused for the above said offenses. Therefore, interference by this Court is required. 17) Learned counsel for respondent/accused submits that the learned trial Judge has discussed the evidence in detail and came to right conclusion. It does not call for any interference by this Court. He further submits that PW.1 is only the material witness in this case and PW.4 is hearsay witness. PW.1 in her cross-examination admits that she fell in love with the accused and she intended to marry him. He was smarter than her uncle by name Ganesh and family of accused was financially sound. Therefore to force him to marry her, she lodged a false complaint. He further submits - 12 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 that the medical evidence do not support the case of prosecution and commission of the rape on PW.1. The trial Court meticulously considered these facts and rightly acquitted the accused. It doesn't call for any interference by this Court. 18) Learned counsel for accused further submits that for reversing of a judgment of acquittal, there should be strong prima facie case and after re-appreciation of the evidence, the Court must unequivocally come to conclusion that accused had committed a said crime. In this case, any prudent man, upon reading of evidence of PW.1, would definitely come to conclusion that it was a false case registered against the accused only to force him to marry PW.1. With these reasons, he prayed to dismiss the appeal. 19) Following point emerges for our determination. i) Whether the learned trial Judge erred in acquitting the accused of the charges punishable under Section 376, 354(d) of IPC and Section 4, 6 and 12 of the POCSO - 13 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 Act and interference in the said finding is required? ii) What order? 20) We answer the above point in the negative for the following reasons: 21) It is a settled principle of law that the Appellate Court while reversing of a acquittal judgment, must be very slow and re-appreciate the evidence led by the prosecution. If the findings of the trial Court is perverse, arbitrary and illegal then only the Appellate Court has a right to interfere in such findings. Therefore, let us consider the evidence placed by the prosecution on record. 22) Ex.P1 is complaint lodged by PW.1/victim dated 27-08-2019. In a nutshell, the allegations made in Ex.P.1 reveal that accused on one day accidentally contacted her, he introduced himself with PW1, thereafter regularly contacting PW.1 over telephone. He was also assuring her that he liked her, and he fell in love with her and he would marry her. Similarly, she also fell in love with accused. She - 14 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 further stated that about two months prior to lodging of the complaint, on one Saturday when she was waiting at the bus stand to go to her native place. At that time, accused came to the said place and took her from the bus stand towards the back side of bus stand and made her to consume a pill. After consuming pill she was unconscious for some time. She regained conscious about an hour after taking pill. Thereafter, she went home and found bleeding from her private parts. She told the said fact to her mother. Members of her family contacted members of family of the accused. Accused assured members of both the family that he would marry PW.1, but later on PW.1 came to know from her relative that the accused was not interested to marry her. In view of these reasons, she lodged a complaint. 23) On reading entire allegations in Ex.P.1, nowhere it is mentioned or alleged against the accused that he raped her about four times prior to filing of the said complaint. It is pertinent to note that Ex.P.1 was not lodged immediately after the incident; on the contrary it was filed 3 to 4 months - 15 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 after the incident. PW.1 was aged about 16 years and an adolescent. There was no hurdle for her to mention material facts in the said complaint. 24) On 30-08-2019 statement of PW.1 was recorded by the learned JMFC, Sirsi under Section 164 of Criminal Procedure Code. At that time, she has stated that accused accidentally once contacted her over phone and thereafter he was repeatedly contacting her and was telling her that he fell in love with her and he would marry her. A year prior to recording of her statement, on one Sunday, father of PW.1 took her to the market, purchased clothes and other necessary articles and gave it to PW.1. Thereafter she was going back to hostel. Accused met her on the way to hostel and forcefully took her to an agricultural land situated about some distance from hostel, raped her against her wish with false promise of marriage. After commission of rape, accused gave her a pill and advised her to consume it so that she would not become pregnant. - 16 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 25) PW.1 has also stated before the learned Magistrate that during vacation, she went to her native place. Accused also came to her house and had forceful sex with her against her wish on the false promise of marriage. She has also stated that 8 days thereafter, once again accused came to her house when other members of the family were not at home and had sexual intercourse with her. She further stated that she told all these facts to her mother and father. Her parents in turn informed the said fact to parents of accused. The accused initially agreed to marry and thereafter, he was telling her that after he gets employment he would marry her. However, parents of accused did not contact parents of PW.1 to talk about the marriage of accused with PW.1. In view of these reasons she found that accused was not interested to marry her. Hence, she lodged a complaint against the accused. 26) In the entire statement recorded by the learned Magistrate, nowhere she has given her date of birth or - 17 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 nowhere she has given date of the incident. The accused was said to have had sexual intercourse with her for four times at different intervals. PW.1 was adolescent and was studying in 9th standard. In spite of that, she did not disclose the date of incident before the learned Magistrate. The said conduct of PW.1 create doubt about evidence or statement given by her before the learned Magistrate. In this case, PW.1, PW.4, PW.10, PW.11, PW.16 and PW.19 are the only important witnesses. Other witnesses are not material witnesses. Most of them are official witnesses i.e. Police Constables or Officers of the Police Department who have assisted the Investigating Officer in collecting the records. 27) Admittedly, there are no eyewitnesses to the incident. In the evidence of PW.1 she has reiterated the fact stated before the learned Magistrate. She has stated that she had accidentally contacted the accused. He introduced himself with her. Thereafter both of them were talking to each other over telephone. On one Sunday he met her and - 18 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 told that he fell in love with her. He took her to a forest situated nearby her hostel and assured her that he would marry her. He undressed her and had sexual intercourse with her against her wish. He gave a pill and told her to take the said pill so that she would not become pregnant. Said fact was repeated on the Sunday of next week. Thereafter, also he came to her house twice and had sexual intercourse with her against her wish. She identifies the accused in the Court through video conferencing. PW-1 further stated that on the date of filing of the complaint, in the afternoon, accused met her in Mundgod bus stand and thereafter took her behind the bus stand and gave a pill. She consumed the said pill. Immediately thereafter, she became unconscious and when she regained conscious, she was sitting with accused in the very same place. She had bleeding from her private part. She went and told her mother about this fact. Thereafter, her mother took her to Police Station and lodged a complaint as per Ex.P1. - 19 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 28) In her further evidence, PW.1 has also stated that on the next day of filing complaint, she was taken to Court at Sirsi, wherein she again gave a statement before the learned Magistrate. She has also stated about drawing of the Mahazar by the police in her presence at the places wherein incident had taken place and she identified the Mahazar as Ex.P.2 and her signature as Ex.P.2(A). She also stated about drawing of map by the Police as per Ex.P.3 to 5 and signing on the said maps. She identified photographs taken at the time of drawing of Mahazar as per Ex.P6 to P9. 29) In her cross-examination, she has stated that through coin booth, she was calling accused on his mobile, but she does not remember mobile number of the accused. Accused committed rape on her for four times, two times at the forest and two times at her home. She further stated that when she was raped at the forest, she raised hue and cry but none came to said place to rescue her. The said place was situated about half a kilometer away from her hostel and there were no houses situated nearby said place. - 20 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 She sustained injuries to her both hands when the accused raped her first time. She has stated all these facts before the Police at the time of filing of the complaint. She denied her statement as per Ex.D.1 said to be given before the learned Magistrate. She has also stated that when the accused was committing the rape on her at her house, she raised hue and cry but none came to rescue her and there were no houses situated nearby her house. She has not given dates of incidents either before the Police or before the learned Magistrate. When she was taken to the Court at Sirsi to give the statement, Police told her what was to be stated before the learned Magistrate. 30) PW.1 in her further cross-examination has stated that accused studied up to B.A. He was looking good and his family was financially strong. Comparing to her uncle Ganesh, accused was a nice person. Since accused refused to marry her, she lodged the complaint. Otherwise, she would not have given the complaint to police against accused. She denied suggestions that she and her family - 21 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 members forced accused to marry her and when he refused to marry her, she lodged the false complaint. She has also stated that she was also loving the accused. 31) PW.4 is mother of the victim PW.1. In her evidence, she has reiterated whatever evidence given by PW.1 and in her cross examination, she has stated that she has deposed before the Court as per information furnished to her by PW.1. In her cross examination, she has stated that “PW.1 had fallen in love with accused and she was intended to marry the accused only and she was refusing to marry any other person. The accused has studied; he was from a good family; he was looking good and his height is also good. The accused is her relative. She did also not like said Ganesh telephoning to PW.1”. She denied other suggestions made by the accused. She also denied the suggestions of accused that she and members of her family were forcing the accused to marry PW.1 and when he refused to marry her, all of them joined together and filed a false complaint against the accused. - 22 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 32) PW.10 is the Headmaster of Government High School, Haldakatti. In his evidence, he has stated that as per request of the Police, he searched school record and gave true copy of transfer certificate as per Ex.P.21 and also given certificate regarding date of birth of PW.1. According to him, as per the school record, the date of birth of the victim girl was 03-09-2003. 33) Prosecution has also examined PW.11 Headmistress of Higher Primary School, Haladakatta. According to her evidence, on request of Police, she searched the school register and in the register No.1, the date of birth of victim girl was mentioned as 03-09-2003 and she gave certificate on that basis as per Ex.P-23. She also gave copy of relevant page of register No.1 as per Ex.P-24. 34) Exs.P.20 to 24 reflects that date of birth of PW.1 is 03-09-2003. The contention of the accused is that there is some correction in Ex.P.24. The said corrections were made after receiving requisition from the police and date of birth mentioned in Ex.P.24 is not at all belonging to PW.1 - 23 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 and it was belonging to some other person. Father’s name of PW.1 is noted as ‘Manjappa Vaddar’ and not ‘Manjappa Savanur’ but that was later on corrected as ‘Manjappa Savanur’. The said contentions of the accused are not acceptable. Ex.P.21 to 24 are copies of the public records. PW-11, after verification of the school records had given the said certificate. There are no other documents to show that date of birth of PW-1 was different from what is mentioned in Ex.P-22 to 24. PW.1 in Ex.P.1 as well as in her evidence has stated different date as her date of birth. That cannot be a ground to hold that date of birth mentioned in School records are incorrect. Therefore contention of the accused that Exs.P.20 to 24 were created only for the purpose of this case is not acceptable. As per the said records, as on the date of the filing of complaint, victim was aged about 15 years, 11 months and 23 days and she was a minor. Therefore, the findings of the learned trial Judge that prosecution was unable to prove that victim was a minor as on the date of incident is not acceptable. - 24 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 35) PW.16 is Medical Officer, who clinically examined PW.1 and gave certificate as per Ex.P-37. She has given final opinion as per Ex.P.37. On the basis of clinical examination as well as FSL report, PW.16 opined that “survivor used to act like that of sexual intercourse. Recent evidence of sexual intercourse was absent.” 36) Ex.P-37 shows that victim has informed to PW- 16 that accused raped her for four times; two times in an open field situated near Siddhapur Gondli and two times at her residence. She has also stated that first episode/incident had taken place about 9 months and last incidents at about 4 months prior to medical examination by PW.16. It is also mentioned that it was a consensual sex. PW-16 after clinically examining PW-1 has noticed absence of hymen but not noticed any injuries on any part of her body including private part. She gave final report as per Ex.P-39 wherein she has given opinion as stated above. She has also noticed that age of survivor was 16 to 17 years, as per the surgeon's opinion. - 25 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 37) PW-19 is Investigating Officer, in his evidence in detail he has stated about the investigation done by him. In the cross-examination, he has stated that in Ex.P.1, there is no reference regarding commission of rape either behind the hostel or at her home. Even she has not mentioned that there was any rape on her by the accused. He did not get any information or evidence regarding PW.1 speaking through the mobile phone of the accused, through coin booth. He had not collected mobile phone number of the father of PW.1. He has not inquired or investigated about situation of coin telephone box near the hostel. He also admits that in the said hostel, use of mobile phone was prohibited. During his investigation, he has collected evidence about sexual intercourse by the accused at three times on victim. But there was no evidence to show that at four times, the accused raped the victim. He denied suggestions of the accused that PW.1 and members of her family were intending to perform marriage of PW.1 with the accused and when the accused refused to marry her, all of - 26 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 them joined their hands and filed a false complaint against the accused. 38) Looking to the evidence of PW.1 stated in detail in the above paragraphs, the complaint is very much silent regarding the commission of rape on the victim for four times against her wish. It is the first hand information written after nearly four months from the alleged last incident. Still nothing is mentioned regarding the offence committed by the accused. There is no explanation in this regard. When she was taken to the Court on the next day, she gave information to the learned Magistrate that accused raped her for four times, twice in the forest area and twice at her home. PW.16’s report states that victim told to her that she was raped by the accused twice in the field situated nearby her hostel. Place of incident stated before PW.16 and learned Magistrate are different. PW.1 was adolescent at the time of alleged incident. It is not the case of prosecution that accused threatened her or criminally intimidated her and hence, she did not lodge complaint - 27 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 immediately after the first incident. It is also not her case that due to threat of the accused, she was going with him whenever he called her over phone, at the time of staying in hostel. The medical evidence as well as scientific evidence, i.e., FSL report do not help the case of the prosecution. PW.16 opined that PW.1 used to have sexual acts. Therefore, absence of hymen in this case cannot be reason to believe that it was torn or absent because of the alleged incident. PW.1 has stated about sustaining of injuries as well as bleeding during incident and it is not corroborated by PW.16. Moreover, PW.1 has not stated the date of incidents. Before the Doctor, she told that the first incident had taken place about 9 months prior to medical examination and last episode was about 4 months prior to medical examination. In Ex.P.1, incident or date of such incidents are absent. Before the police or trial Court also date of incidents are not stated. 39) According to evidence of PW.1, she was calling accused over his mobile phone through coin box and PW-19 - 28 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 has not investigated regarding availability of such a coin box at hostel. He did not obtain CDR of mobile phone of the accused and ascertained about calls made by PW-1 to the phone of accused and visa versa to corroborate evidence of PW.1 or to show that they had continuous contacts during the period of incidents. From the evidence of PW1, it appears accused and PW.1 were meeting frequently. The Investigating Officer has not examined any other students residing in the said hostel to show that they had deep contacts. PW.19 has stated that on enquiry he found that use of mobile phone was not permitted in the hostel, wherein PW.1 was staying. PW.1 had no mobile phone. Then how could accused contacted her time and again or talk to her is not explained. PW.19 has not collected such evidence to support the case of the prosecution. 40) The defence of the accused is that PW.1 as well as members of her family were strongly intending to perform her marriage with accused. The family of the accused was financially sound; the accused was good - 29 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 looking and well educated. In addition to that PW.1 fell in love with him and she was not ready to marry any other person. Considering all these facts, members of her family forced accused to marry PW.1. Accused refused to marry her. Hence, all of them joined their hands and lodged the complaint through PW.1. Looking to the cross-examination of PW.1 and 4, the said defence appears to be probable. PW.1 in her cross-examination has admitted that when the accused refused to marry her, she lodged the complaint otherwise she would not have lodged the complaint. From the said evidence, defence of the accused is probable. Ex.P.1 do not disclose that the accused committed rape on her. Materials available on record reveal that 9 months prior to medical examination first incident had taken place. PW.1 was adolescent and appears to be having knowledge of sexual acts. She did not complain to her parents, friends or relatives about alleged acts of accused. On the contrary according to her, she co-operated with the accused. It is also not her case that she had any threat from accused. All these facts create serious doubt about case of prosecution. - 30 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 41) In addition to that from the evidence of PW.1 and 4 the defence of accused appears to be probable. In view of these reasons the prosecution failed to prove beyond reasonable doubt that accused had committed alleged offence. 42) The learned trial Judge appreciated the evidence and came to a right conclusion. The said findings of the learned trial Judge is based on the evidence available on record. We have reconsidered the evidence and materials available on the record and re-appreciated the evidence. We do not find any reason to hold that view of the learned trial Judge is perverse or arbitrary. The learned trial Judge properly appreciated oral and documentary evidence and came to right conclusion. We concur with the findings of the learned trial Judge. The prosecution is not able to prove the guilt of the accused beyond reasonable doubt. 43) For the aforesaid discussions, we answer point No.1 in the negative and proceed to pass following: - 31 - NC: 2025:KHC-D:3503-DB CRL.A No. 100062 of 2022 ORDER i) Appeal is dismissed. ii) Judgment dated 30.04.2021, in Sessions Case No.78/2019, by the learned Additional District and Sessions Judge/FTSC-I, U.K.Karwar is confirmed. iii) Send back TCRs along with copy of this judgment to the trial Court forthwith. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE Vb / AG LIST NO.: 1 SL NO.: 10