- 1 - NC: 2025:KHC-D:4055 CRL.A No. 100332 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 100332 OF 2020 (374(Cr.PC)/415(BNSS)) BETWEEN: HANUMESH S/O. HANUMANTHAPPA AGED ABOUT 30 YEARS, OCC. DRIVER, R/O. VADDARAHATTI, NOW AT LAXMI CAMP, GANGAVATI, DIST. KOPPAL-583227. …APPELLANT (BY SRI. NEELENDRA D.GUNDE, ADVOCATE) AND: THE STATE OF KARNATAKA BY GANGAVATI RURAL POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD-580011. …RESPONDENT (BY SRI. PRAVEENA Y.DEVAREDDIYAVARA, HCGP) THIS CRIMINAL APPEAL IS FILED U SEC. 374(2) OF CR.P.C. PRAYING TO ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 18/11/2020 PASSED IN SPL.S.C. POCSO NO.12/2016 PASSED BY THE LEARNED ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC 1, KOPPAL, THEREBY CONVICTING THE APPELLANT FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF INDIAN PENAL CODE AND SECTION 4 AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT AND SENTENCING TO SUFFER RIGOROUS IMPRISONMENT FOR A PERIOD OF 10 YEARS AND TO PAY A FINE OF RS.25,000/- IN DEFAULT TO SUFFER SIMPLE IMPRISONMENT FOR 6 MONTHS FOR OFFENCE U/S. 6 OF POCSO ACT. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by R HEMALATHA Location: High Court of Karnataka - 2 - NC: 2025:KHC-D:4055 CRL.A No. 100332 of 2020 CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL JUDGMENT 1. The appellant has been convicted of offences punishable under Section 376 of the Indian Penal Code, 1860, and Sections 4 and 6 of the POCSO Act, 2012, and has been sentenced to undergo imprisonment for a period of 10 years. 2. The prosecution alleges that on 01.02.2014, the accused, with sexual intent, used to follow the victim girl whenever she was going to school at Pragathi Nagar, Gangavati. He insisted that she fall in love with him and assured her that he would marry her. Thereafter, he took her near the paint factory, and committed forcible sexual intercourse fully knowing that she was a minor. Thereafter, about six months later, the accused once again persuaded the victim girl and, under the guise of marrying her, took her near the school situated close to the sugar factory, and had forcible sexual intercourse. When the victim girl requested the accused to marry her, he refused on one pretext or another, which left the victim deeply distressed and led her to contemplate suicide. The FIR was lodged on 19.03.2016, after the date of the last incident. 3. To prove its case, the prosecution examined 14 witnesses, listed as PW1 to PW14, exhibited documents marked as Ex.P1 to Ex.P19, and produced 7 material objects marked as MO1 to MO7. The Trial Court, after framing the points for - 3 - NC: 2025:KHC-D:4055 CRL.A No. 100332 of 2020 consideration and appreciating the evidence on record, held that the prosecution had established the guilt of the accused beyond all reasonable doubt. 4. The learned counsel for the appellant submitted that the Trial Court committed an error in determining the age of the victim girl as 17 years, 10 months, and 5 days as of the date of the incident, by relying on the certificate issued by the Headmaster (PW1), which, according to him, has no evidentiary value, since the date of birth mentioned in the certificate was not based on a birth certificate issued by the competent authority. He further submitted that, during cross-examination, the survivor admitted that her brother was about 45 years old. He also contended that the accused and the survivor had previously filed a similar complaint against a third party and received a sum of Rs. 3,50,000/- for not lodging an FIR against one Rakesh. Therefore, evidence on record clearly establishes that the sexual intercourse between the accused and the survivor was consensual and the survivor was a major as of the date of the incident. In support, he places reliance on the decision of the Division Bench of this Court in the case of State of Karnataka Vs. Kandappa S/o Vishnu Vaddar1. 5. In response, the learned Addl. Government Advocate for the State submitted that the evidence on record clearly establishes that the accused committed forcible sexual intercourse and the prosecution has established that the 1 Crl.A.No.100520/2021, dated 27.06.2024 - 4 - NC: 2025:KHC-D:4055 CRL.A No. 100332 of 2020 survivor was a minor as of the date of the incident, which is evident from the testimony of PW1-Head Master and the certificate issued Ex.P1 & P2. Therefore, in the absence of any illegalities in the impugned judgment of conviction, the same does not warrant any interference. 6. The arguments of the learned counsel for the parties have been duly considered and the trial Court records have been perused. “The sole point that arises for consideration is whether the prosecution has established the guilt of the accused beyond all reasonable doubt, and whether the judgment of conviction passed by the trial court is legally sustainable?” 7. PW1 is a retired headmaster of the Government Primary School, Gangavati, where the survivor is alleged to have studied up to the 9th standard. In his testimony, PW1 stated that the date of birth of the survivor is 10.05.1998. To substantiate this, he produced the Admission Form and the School Admission Register, marked as Ex.P1 and Ex.P2. 8. PW2 is the victim, and in her examination-in-chief, she supported the prosecution’s case by confirming that she was a minor at the time of the incident. In cross-examination, the survivor admitted that her brother is approximately 45 years old. The defense confronted Ex.D1 and Ex.D2, which are the FIR and the complaint in Crime No. 322/2018 filed against - 5 - NC: 2025:KHC-D:4055 CRL.A No. 100332 of 2020 one Rakesh for an offence under the POCSO Act, making similar allegations. The survivor further admitted that she received a compensation amount of ₹3,50,000 following the registration of the crime for an offence under the POCSO Act against one Rakesh Sharma, to which she is entitled under the provisions of the POCSO Act. 9. PW3 is the mother of the survivor, and she supported the case of the prosecution. 10. PW4 and PW5 are the witnesses to the spot panchanama, but they turned hostile, and nothing was elicited from them to support the case of the prosecution. 11. The other witnesses are not material witnesses. 12. PW9 is the doctor who examined the survivor, and he is the author of Ex.P8 and P9, in which he opined that there may be a possibility of forcible sexual assault forcible sexual assault. 13. The investigating officer was examined as PW11, and he supported the case of the prosecution by conducting the spot mahazar and collecting the admission form and school register from PW1. 14. The evidence on record clearly establishes that the accused and the survivor had been in a relationship for 6 months prior to the lodging of the FIR. There was no resistance by the survivor to the alleged forcible sexual assault by the - 6 - NC: 2025:KHC-D:4055 CRL.A No. 100332 of 2020 accused. The alleged incident of forcible sexual assault was six months prior to the lodging of the FIR, and the victim has admitted to filing a similar case against one Rakesh and receiving compensation. The evidence on record including the testimony of the victim clearly establishes that the sexual intercourse was a consensual one. 15. The Trial Court determined that the survivor was a minor, aged about 17 years, 10 months, and 5 days, based on the documents issued by PW1 and marked as Ex.P1 and Ex.P2. However, the date of birth recorded in these documents was not based on a birth certificate issued by a competent authority. 16. The Division Bench of this Court, in the case of Kandappa (supra), with reference to the decision of the Apex Court in P. Yuvaprakash vs. State Rep. by Inspector of Police, held that to prove age, preference must be given to the date of birth certificate from the school of matriculation or an equivalent certificate issued by the concerned examination board, provided it is based on a birth certificate issued by the Corporation, Municipal Authority, or Panchayat. Only in the absence of such documents can age be determined through an ossification test or any other latest medical age determination test conducted on the orders of the concerned authority, such as a Committee, Board, or Court. 17. In the present case, the prosecution relied on a certificate issued by the school authorities, but the date of birth - 7 - NC: 2025:KHC-D:4055 CRL.A No. 100332 of 2020 entered in the school register was not based on a birth certificate issued by the competent authority and thus has no evidentiary value. Under these circumstances, as held by the Apex Court in P. Yuvaprakash (supra), the prosecution was required to subject the survivor to an ossification test to determine her age. 18. The survivor claims to have been aged about 17 years, 10 months, and 5 days at the time of the incident. However, in her cross-examination, she admitted that her brother was about 45 years old. In light of these facts, the prosecution has failed to establish that the survivor was a minor at the time of the incident. Therefore, the impugned judgment passed by the Trial Court, holding that the accused committed forcible sexual intercourse with the survivor, a minor, under the pretext of marriage, is illegal, arbitrary, and not legally sustainable. 19. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 18.11.2020 passed in Spl.S.C. POCSO No.12/2016 by the learned Addl. District and Sessions Judge, FTSC-1, Koppal is hereby set- aside. The appellant is acquitted of the aforesaid offences. Bail bond, if any, stands discharged. Sd/- (HEMANT CHANDANGOUDAR) JUDGE JTR Ct:vh