- 1 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100253 OF 2018 (397(CR.PC)/438(BNSS)) BETWEEN: ALEEM SAB S/O. JILAN BASHA, AGE: 25 YEARS, OCC. WIRING WORK, R/O. NEAR MASTANVALI DARGA, KAMLAPUR, TQ. HOSAPETE, DIST. BALLARI. …PETITIONER (BY SRI K.L. PATIL, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH KAMALAPUR POLICE STATION, R/BY. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. …RESPONDENT (BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C. SEEKING TO ALLOW THIS PETITION AND SET ASIDE THE JUDGMENT AND ORDER DATED 25.09.2018 PASSED BY THE III ADDL. DIST. & SESSIONS JUDGE, BALLARI (SITTING AT HOSAPETE) AND CONSEQUENTLY, CONFIRM THE JUDGMENT AND ORDER OF ACQUITTAL DATED 13.10.2015 PASSED BY THE ADDL. CIVIL JUDGE & JMFC COURT, HOSAPETE, IN C.C.NO.2129/2012, FOR THE OFFENCES PUNISHABLE UNDER SECTION 354 OF IPC. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Sri.K.L.Patil and Sri.Praveena Y. Devareddiyavara, learned High Court Government Pleader. 2. Accused is the revision petitioner challenging the order of the First Appellate Court, whereby First Appellate Court had set aside the order of the acquittal recorded by the learned trial Magistrate in CC No.1712/2010 and remanded the matter for fresh disposal for framing the appropriate charges. 3. Facts in the nutshell which are utmost necessary for disposal of the revision petition are as under: 3.1 A complaint came to be lodged by the Moulabi with Kamalapur police on 02/06/2010 contending that at about 4:00PM, in the newly constructing building her daughter and her son had been for curing work. At that juncture, accused who was engaged in electrical wiring - 3 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 work, said to have taken the opportunity and derobed the victim girl and tried to commit forcible sexual intercourse. The victim girl raised alarm and matter was reported to the Mother. Mother lodged the complaint with the police and police after investigation filed a charge sheet for the offence under section 354 IPC. Accused stood for the trial and after due trial accused was acquitted taking note of the prosecution evidence. 3.2 Being aggrieved by the same, State filed an appeal before the District Court in Criminal Appeal No.5007/2017. 3.3 Learned judge in the First Appellate Court, after re-appreciating the material on record in the light of the arguments put forth on behalf of the State noted that the trial Court failed to frame proper charge following the dictum of the Hon’ble Apex Court in the case of Madanlal Vs. State of Jammu Kashmir1 and remitted the matter 1 1997(7)SCC 677 - 4 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 to the trial Court for fresh disposal in accordance with law without forming any opinion on the merits of the matter. 3.4 Being aggrieved by the same, accused is before this Court. 4. Sri.K.L.Patil, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that approach of the First Appellate Court is not acceptable in the attendant facts and circumstance of the case, especially in the light of the oral testimony of the victim girl who has been examined as PW13 and also taking note of the oral testimony PW.3 and complaint averments coupled with the medical records. 5. He would further contend that assuming that proper charge has not been framed by the trial court, it was always open for the prosecution to seek for alteration of the charge under Section 216 Cr.PC before the trial Court itself and approach of the First Appellate Court that proper charge has not been framed by the trial Court and - 5 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 remitting the matter to the trial Court for fresh disposal after framing the appropriate charge has resulted in miscarriage of justice and sought for allowing the revision petition. 6. Per contra, Sri.Praveena Y.Devareddiyavara learned High Court Government Pleader supports the impugned order passed by the First Appellate Court. 7. He would further contend that factum of ejaculation is not a sine qua non for prosecuting the offence under section 375 of the IPC. The oral testimony of PW.13 has been rightly re-appreciated by the learned Judge in the First Appellate Court while directing the trial Court to frame appropriate charges under section 375 IPC and proceed with the case in accordance with law. Therefore, the order under revision needs no interference by this Court that too in the revisional jurisdiction. 8. Having heard the arguments of both sides, this Court has perused the material on record meticulously. 9. On such perusal of the material on record, especially the oral testimony of PW 3 and PW13, this Court - 6 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 is satisfied that the framing of the charge by the trial Magistrate under Section 354 IPC is just and in proper. 10. Further, in the absence of any material on record whereby the trial Court could form an opinion that there was slightest penetration of the male part into the female part, question of framing the charge under Section 375 would not arise. 11. Further, there was no application filed by the prosecution nor provisions of Section 216 of Cr.P.C. was pressed into service before the trial court. Thereafter, taking note of the attendant material facts and circumstances, trial judge recorded an order of acquittal. 12. It is needless to emphasise that accused is presumed to be innocent of the offences alleged against him till the prosecution proves the charges levelled against the accused beyond reasonable doubt by placing cogent and convincing evidence on record. 13. An order of acquittal recorded by the duly constituted Court acts as double innocence insofar as the accused is concerned. This celebrated principle of law in - 7 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 the criminal jurisprudence is ignored by the learned judge in the First Appellate Court while re-appreciating the material evidence on record. 14. Moreover, the learned judge has placed reliance on the judgment of the Hon’ble Apex Court in the case of Madanlal Vs. State of Jammu Kashmir2 supra where in it has been held as under. "I.P.C.-Sections 375, 376, 354 and 511- Rape- Ejaculation by accused-Effect of-if an accused forcibly penetrate, but fails on such rubbing, ejaculates himself, then it is certainly an attempt to commit rape U/S 376 and 511 of I.P.C." 15. In the case on hand, no such material evidence is forthcoming on record so as to hold that the principles of law enunciated in the case of Madanlal supra could be applied to the facts and circumstances of the case. 16. Further, the First Appellate Court was required to reassess the material evidence on record and should 2 1997(7)SCC 677 - 8 - NC: 2025:KHC-D:6034 CRL.RP No. 100253 of 2018 not venture to find out whether the proper charge has been framed or not, that too in the appeal filed by the State challenging the order and acquittal. 17. Under such circumstances, remitting the matter to the trial Court for fresh disposal after framing appropriate charges needs interference by this Court by exercising the revisional jurisdiction. 18. Accordingly, the following order: ORDER (i) Revision petition is allowed. (ii) Impugned order of the First Appellate Court set aside. (iii) Consequently, Order of the acquittal passed by the trial Magistrate is hereby confirmed. (iv) Bail bonds if any, stands discharged. Sd/- (V.SRISHANANDA) JUDGE HMB,NAA CT:PA, LIST NO.: 2 SL NO.: 25