- 1 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 1975 OF 2018 (C) BETWEEN: SRI MAHADEVA, S/O LATE CHANDRASHETTY, AGED ABOUT 28 YEARS, R/AT MAYIGOWDANAHALLI VILLAGE, CHUNCHANAKATTE HOBLI, K R NAGARA TALUK, MYSURU DISTRICT - 34 …APPELLANT (BY SRI. P D SUBRAHMANYA, ADVOCATE) AND: 1. STATE OF KARNATAKA, BY VIJAYANAGARA POLICE, MYSURU CITY, MYSURU DISTRICT, REP. BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 01 2. NELLAMMA W/O SIDDARAJU, AGE ABOUT 42 YEARS, KUMBARASHEETY CASTE, ANNAPOORNESHWARI BRICK FACTORY SHED, BELAWADI INDUSTRIAL AREA, MYSURU. AMENDED AS PER ORDER DATED 20.10.2023 …RESPONDENTS Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 (BY SRI. RANGASWAMY .R, HCGP FOR R1, SMT. SWETHA, ADVOCATE FOR R2) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 29.08.2018 AND SENTENCE DATED 30.08.2018 PASSED BY THE VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU IN S.C.NO.33/2016 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 506,376(2)(f)(i)(n) OF IPC AND SEC.5(j)(ii)(l)(n) R/W 6 OF POCSO ACT. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT Applicant has preferred this appeal against the judgment of conviction and order on sentence dated 29th August 2018 passed in SC No.33 of 2016 by the VI District & Special Judge, Mysore (for short "the trial Court"). 2. For the sake of convenience, the parties herein are referred to as per the rank before the trial Court. 3. Facts in brief leading to this appeal are that Vijayanagara Police, Mysore submitted charge-sheet against the accused for the offence punishable under sections 376(2)(f)(i)(n), 506 Indian Penal Code and sections 5(j)(ii), (L)(N) read with section 6 of Protection of Children from Sexual - 3 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 Offences Act (for short "the POCSO Act"). It is alleged by the prosecution that complainant is the resident of Jyothigowdanapura, Chamarajanagar District for the past 20 years. She is married to Siddaraju and he is having three daughters. First daughter is Jyothi who is married to the present accused, second daughter is one Kavya and third daughter is the victim girl. The victim girl was studying in 10th Standard at Hootagalli Government School. On 19th October 2015 at 12.00 noon, victim girl came to her complaining that she is getting dizziness. On enquiring by her and her second daughter-Kavya, the victim unfurled the event that in March 2015, when the complainant and her husband have been to Coolie work and she was alone in the house, the accused came there at about 6.00 pm, and she went to Kitchen to prepare coffee for him. Accused came to the Kitchen, hugged her and has committed aggravated penetrative sexual assault on her. Further, he threatened her that she should not intimate the matter to anybody, and she should consent for sexual intercourse with him whenever he demands. The victim girl being afraid of threat made by the accused, kept silent and has not intimated to anybody in the house. Within a period of - 4 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 month, again one day he came in the evening and has repeated the acts. The complainant, after discussing with the family members, has filed complaint on 20th October 2015. Based on the complaint, case came to be registered in crime No.281 of 2015 for the offence punishable under sections 376 and 506 of Indian Penal Code and also under section 5(j)(ii) of POCSO Act. After recording statement of the victim and upon conclusion of investigation, charge-sheet came to be filed for the offence punishable under Sections 376(2)(f)(i)(n), 506 Indian Penal Code and sections 5(j)(ii), (L)(N) read with section 6 POCSO Act. 4. The accused was on bail. On hearing arguments, the trial Court framed charges for alleged offences and the same were read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, prosecution examined seven witnesses as PWs1 to 7, got market 15 documents as Exhibits P1 to P15. On closure of prosecution side evidence, statement of the victim under section 313 of Code of Criminal Procedure was recorded. Accused totally denied the evidence appearing against him, but - 5 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 has not chosen to adduce any defence evidence on his behalf. Having heard the arguments on both sides, trial Court convicted the accused for the offences punishable under sections 376(2)(f)(i)(n), 506 Indian Penal Code and sections 5(j)(ii), (L)(N) read with section 6 of the POCSO Act. Being aggrieved by the judgment of conviction and order on sentence, applicant has preferred the present appeal. 5. Sri P.D. Subrahmanya, learned Counsel appearing for the appellant would submit that the judgment of the trial Court convicting the apparent for the offence punishable under 376(2)(f)(i)(n), 506 Indian Penal Code and sections 5(j)(ii), (L)(N) read with section 6 of POCSO Act is not sustainable either in law or on facts and the same is liable to be set aside. He would submit that the trial Court has completely failed in appreciating the case of the appellant and on the wrong observation of facts, has convicted the appellant. The prosecutrix who has supported the case of the prosecution in examination-in-chief, has completely turned hostile during the cross-examination and she has not supported the case of prosecution. The mother of the victim has not supported the - 6 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 case of prosecution and turned hostile. Therefore, her evidence is of no use. The complaint came to be lodged on 20th October 2015, whereas the alleged incident took place in the month of March 2015. There is delay of seven months in filing the complaint. The prosecution has failed to prove the age of the prosecutrix. It is submitted that as per the say of the mother, the victim girl was aged 22 years as on the date of alleged incident. The investigating officer in the cross-examination has admitted that he has not procured any material as to the age of the prosecutrix. Therefore, the trial Court has committed an error in assessing the age of the victim. There are material omissions and contradictions and the same are not considered by the trial Court. On all these grounds, it is sought to allow the appeal. To buttress his arguments, he places reliance on the following judgments: (1) PARAMESHA v. STATE OF KARNATAKA (2020 SCC OnLine KAR 5221; (2) RAJESHPRASAD YADAV @ CHOOTU v. THE STATE OF KARNATAKA (Crl. Appl.No.388 of 2019 decided on 20.12.2023); - 7 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 (3) THE STATE BY T.NARASIPURA P.S. v. RAJARATHNAM @ UPENDRA (CRL.APPEAL NO.1597 OF 2019 DECIDED ON 08.04.2024); (4) VISHWANATH AHIRWAR v. STATE OF UTTAR PRADESH (2023 SCC oNlINE aLL 160); (5) P. YUVAPRAKASH v. STATE REP. BY INSPECTOR OF POLICE, (AIR 2023 SC 3525); AND (6) K. DHANDAPANI v. THE STATE BY INSPECTOR OF POLICE (CRL.APPL.796 OF 2022 DECIDED ON 09.05.2022) 6. As against this Sri R. Rangaswamy, the learned High Court Government Pleader appearing for the official respondent-State, would submit that the trial Court has properly appreciated the materials in accordance with law and facts. There are no grounds to interfere with the impugned judgment of conviction and order on sentence and accordingly, sought for dismissal of the appeal. 7. Having heard the arguments on both sides, and on perusal of records, the following points would arise for consideration: - 8 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 1. Whether, the appellant/accused makes out a ground to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court? 2. What order? Regarding Point No.1: 8. I have examined the materials placed before this Court. The learned Counsel appearing for the on behalf of the appellant, would vehemently submit that the prosecution has failed to prove that as on the date of alleged commission of offence, the victim was not minor as defined under section 2(d) of POCSO Act. On perusal of complaint-Exhibit P3, the age of the victim is shown as 16 years. Exhibit P4 is the certificate of medical examination of alleged victim of rape, which reveals that age of victim was 16 years. The admission register-Exhibit P6 reveals that the date of birth of the victim is 5th August 2000. Exhibit P5 also reveals the same. PW2-Nelamma, the mother of victim has deposed in her evidence that she has not obtained birth certificate of the victim and her age was 24–25 years at the time of recording the evidence. This evidence was recorded on 18th February 2017. The alleged incident took - 9 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 place on 19th October 2015. Then the age of the victim at the time of occurrence of incident should be 22 years. PW4- Sangeeta, the Head Mistress of the School has deposed in her evidence that she has issued Exhibit P5-School Admission Register extract. During the course of cross-examination of PW4, she has clearly admitted that she has not obtained the birth certificate of the victim. PW7 is the investigating officer. He has clearly admitted in his evidence that he has not examined/enquired as the birth certificate of the victim. the Investigating Officer has not deposed as to on what basis, the date of birth of the victim is entered as 05th August, 2000 in the school admission register. The investigating officer has not explained anything as to the non-production of birth certificate of the victim. When there is no legally acceptable evidence regarding proof of age of the victim, the investigating officer ought to have obtained the ossification test certificate from the concerned medical officer. The investigating officer has not taken any steps in this regard, and he has not whispered anything as to non-production of Ossification test of the victim. The medical officers have not deposited anything as to the non- examination of the victim as to her age. In view of section - 10 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 164(A)(2) of Code of Criminal Procedure, 1973 the registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely— 1. the name and address of the woman and of the person by whom she was brought; 2. the age of the woman; 3. the description of material taken from the person of the woman for DNA profiling; 4. marks of injury, if any, on the person of the woman; 5. general mental condition of the woman; and 6. other material particulars in reasonable detail 9. In the instant case, the registered medical officer has not complied with the mandatory provisions as to confirming the age of the victim. Investigating Officer has not complied with the mandatory provisions section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 and Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2016. Since the prosecution has failed to produce cogent, convincing, acceptable evidence regarding the age of the victim and also taking to consideration the admission made by the PW2-mother of victim as she had already attained majority at the time of - 11 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 alleged commission of offence, I am of the considered opinion that prosecution has failed to prove that the victim was not a minor girl as on the date of alleged commission of offence. According to the evidence of PW1, she has completed 24 years as on the date of the deposition, i.e. 18th February 2017. The incident took place on 20th March 2015. Complaint came to be filed on 20th October 2015, i.e. after lapse of seven months. The prosecution has not properly explained regarding delay in filing the complaint. Apart from this, during the course of cross-examination of PW1, has clearly admitted that accused has not committed rape on her. She has also admitted that she has filed false complaint against the accused. When victim herself has admitted that the accused has not committed rape on her, Exhibit P15-DNA report will not come to the aid of the prosecution for the reason that even if it is presumed that the accused has intercourse with victim, at the time of commission of offence, the same is consensual sexual intercourse, which cannot come under the definition of rape as the victim has attained majority as on the date of commission of alleged offence. Though there is no convincing, cogent, acceptable, trustworthy, and corroborative legal evidence, the trial Court - 12 - HC-KAR NC: 2025:KHC:43111 CRL.A No. 1975 of 2018 has convicted the accused which is not sustainable under law. Accordingly, I answer Point No.1 in the affirmative. Regarding Point No.2: 10. For the aforesaid reasons and discussions, I proceed to pass the following: O R D E R i) Appeal is allowed; ii) Judgment of conviction and order on sentence dated 29th August 2018 passed in SC No.33 of 2016 by the VI District & Special Judge, Mysore, is set aside; iii) Appellant/accused is acquitted of the offence punishable under sections 376(2)(f)(i)(n), 506 Indian Penal Code and sections 5(j)(ii), (L)(N) read with section 6 POCSO Act; iv) Registry is directed to send the intimation to Jail Authority to release the accused, if he is not involved in any other cases. SD/- (G BASAVARAJA) JUDGE lnn List No.: 1 Sl No.: 113