- 1 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 40 OF 2020 (C) BETWEEN: SRI. CHETHAN S/O. SATHISH AGED ABOUT 26 YEARS RESIDENT OF HABBANAKUPPE VILLAGE HUNSUR TALUK MYSURU DISTRICT - 571 108 (PRESENTLY IN J.C.) …APPELLANT (BY SRI: RAMESH H.E., ADVOCATE) AND: STATE OF KARNATAKA BY HUNSUR RURAL POLICE REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU - 560 001. …RESPONDENT (BY SMT. RASHMI JADHAV, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 18.09.2019 AND SENTENCE DATED 20.09.2019 PASSED BY THE VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU IN S.C.NO.38/2018 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 376(2)(I) AND (L) OF IPC AND SEC.5(K) AND (M) READ WITH SECTION 6 OF POCSO ACT; THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 10 YEARS WITH FINE OF RS.25,000/- IN DEFAULT OF PAYMENT OF SAID FINE, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 5(K) AND (M) READ WITH SECTION 6 OF POCSO Digitally signed by NANDINI B G Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 ACT; AND THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED. THIS CRIMINAL APPEAL, 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.38 of 2018 on the file of the learned VI Additional District and Special Judge, Mysuru, is impugning the judgment of conviction dated 18.09.2019 and order of sentence dated 20.09.2019, convicting the accused for the offence punishable under Section 376(2)(i) & (l) of Indian Penal Code (for short 'the IPC') and under Section 5(k) & (m) read with Section 6 of Protection of Children from Sexual Offences Act (for short the POCSO Act'), and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.25,000/- for the offence punishable under Section 5(k) & (m) read with Section 6 of POCSO Act, with default sentence. 2. Brief facts of the case as made out by the prosecution is that, PW2 - mother of the victim girl lodged the first information against the accused alleging commission of offence punishable under Section 376(2)(i) & (l) of IPC and - 3 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 under Section 5(k) & (m) read with Section 6 of POCSO Act. It is the contention of the prosecution that PW1 - the victim girl was aged about 12 years having physical disability. Taking advantage of her position, the accused induced her and took her on his motor cycle promising to drop her to the village and committed penetrative sexual assault. On the basis of first information, FIR came to be registered. The victim was subjected to medical examination. Statement of other witnesses were recorded. Samples of the incriminating materials were collected and sent for FSL examination and after completing the investigation, filed the charge sheet for the offences punishable under Sections 376(2)(i)(l) and 506 of IPC and Sections 5(m) and 6 of POCSO Act. 3. Learned Magistrate took cognizance of the offences and summoned the accused. The accused has appeared before the Court and pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 7 and got marked Exs.P1 to 19 in support of its contention. The accused has denied all the incriminating materials available on record, in his statement recorded under Section 313 of Cr.P.C., but has not led any - 4 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 evidence in support of his defence. However, got marked three photographs as per Exs.D1 to D3 during the cross examination of prosecution witnesses. 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. Accordingly, proceeded to pass the impugned judgment of conviction and order of sentence as stated above. Being aggrieved by the same, the accused is before this Court. 4. Heard Sri H E Ramesh, learned counsel for the appellant and Smt Rashmi Jadhav, learned Addl. SPP for the respondent - State. Perused the materials including the Trial Court records. 5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: "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 and to acquit him for the charges leveled against him?" - 5 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 My answer to the above point is in the 'Negative' for the following: REASONS 6. It is the contention of the prosecution that, victim was aged about 12 years having physical disability. Taking advantage of the said condition, the accused took her on his motor cycle promising to drop her to the village and committed sexual assault. In this regard, the statement of the victim girl was recorded under Section 164 of Cr.P.C., wherein, she narrated the incident in her own way. Ex.P3 is the school admission certificate, according to which, the date of birth of the victim is 13.01.2006. The incident had occurred on 25.11.2017 and therefore, the victim was aged 11 years 10 months as on the date of incident and was below the age of 12 years. 7. While examining PW1, the Trial Court noticed the condition of the victim that she was struggling to speak properly and recorded that she has physical disability. The Court has also recorded the demeanor of the minor girl as she was weeping while deposing before the Court about the act - 6 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 committed by the accused. Witness in clear terms described the act of the accused about removal of her undergarments and the accused laying on her and committing penetrative sexual assault. Even though the witness was cross examined at length, nothing has been elicited from her to disbelieve her version. 8. PW2 - informant is the mother of the victim girl, who lodged the first information as per Ex.P2. She deposed before the Court about the information received by her from her minor daughter regarding the offence committed by the accused. She also stated that the victim has identified the accused before the Trial Court. Even though this witness was cross examined at length, nothing has been elicited to disbelieve her version. 9. PW3 is the brother of the victim girl. He is hearsay witness. PW4 is the Police Inspector who recorded the statement of victim girl as per Ex.P5. PW5 is the doctor who examined the victim girl and issued MLC intimation. Witness stated that the victim has known case of epilepsy. The victim was suffering from slurred speech and she is having deformity - 7 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 in her left leg. Witness also stated that the victim was receiving disability pension. Witness further stated that she received the victim with a history of committing sexual assault. She enquired the victim about the acts committed against her and held a physical examination of the body. Witness categorically stated that there are no signs of vaginal penetration, but there is a recent injury over external genitalia. Injury as noted in vagina could be caused if forcible vaginal penetration or any sexual act is committed. She has prepared report which is as per Ex.P6. According to Ex.P6, even though there is no evidence of vaginal penetration, there is recent injury over external genitalia. During cross examination, witness stated that there was an attempt to commit penetration and hymen was intact. PW6 is the PSI who registered FIR on receipt of first information. PW7 is the CPI who conducted investigation and filed the final report. 10. From the materials on record, it could be seen that the victim was aged 11 years and 10 months and was physically disabled. The accused taking advantage of her condition, took her on his motor cycle and committed - 8 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 aggravated penetrative sexual assault. With the materials, both oral and documentary, referred to above, the prosecution is successful in proving the guilt of the accused for the offence under Section 5(k) and (m) of POCSO Act. Once the prosecution is successful in proving its contention regarding commission of the offences, Section 29 of the POCSO Act gives rise to the presumption and the Court shall presume that such person has committed the offence, unless the contrary is proved. Therefore, now the burden shifts on the accused to prove otherwise. The accused has not stepped into the witness box to speak about the defence nor he has elicited anything from any of the prosecution witnesses to discard their evidence. Under such circumstances, I am of the opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. 11. Even though, the prosecution has invoked under Section 376(2)(i) and (l) of IPC, it is similar to that of the offence under Section 5(k) and (m) of POCSO Act. Both the offences are punishable with imprisonment which may not be less than 10 years as on the date of offence. Section 42 of - 9 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 POCSO Act deals with alternative punishment. When the Act committed constitutes the offence punishable both under IPC and under POCSO Act and the offender is liable for punishment, the punishment which is greater in degree is to be imposed on the accused. Such being the case, I deem it appropriate to hold that the accused is guilty for the offence committed under Section 5(k) and (m) punishable under Section 6 of POCSO Act. 12. Learned counsel for the appellant contended that the accused was apprehended on 27.11.2017 and till today, he is in custody. It is stated that he has suffered the sentence for 7 years 6 months. The sentence prescribed under Section 376(2)(i) and (l) of IPC, is minimum 10 years . The Trial Court has imposed the sentence on the accused considering the physical disability of the victim girl aged 11 years 10 months as on the date of incident. I do not find any reason to deplete the sentence, as the same is not provided under the special enactment and I do not find any special reason for dosing so. 13. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The Trial Court has taken into consideration all the materials on - 10 - HC-KAR NC: 2025:KHC:21281 CRL.A No. 40 of 2020 record in a proper perspective and arrived at a right conclusion. I do not find any reason to interfere with the same. Hence, I answer the above point in the Negative and proceed to pass the following: ORDER The appeal is dismissed. Registry to send back the Trial Court records along with copy of this judgment to secure the presence of the accused and to issue conviction warrant, if not issued earlier. Registry is also directed to inform the High Court Legal Service Committee, about the disposal of the case. Sd/- (M G UMA) JUDGE *bgn/- CT:VS List No.: 1 Sl No.: 16