- 1 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ CRIMINAL APPEAL NO.100239 OF 2017 (C) BETWEEN: PARASHURAM, S/O. MAHADEVAPPA HARIJAN, AGED ABOUT 24 YEARS, OCC: PRIVATE SERVICE, R/O: KAMADOLLI, TALUK: KUNDGOL, DIST: DHARWAD. …APPELLANT (BY SRI. VIJAY M.MALALI, ADVOCATE) AND: THE STATE OF KARNATAKA, BY SUB-INSPECTOR KUNDGOL, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD. …RESPONDENT (BY SRI. M.B.GUNDAWADE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF CRPC SEEKING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT DATED 30.03.2017 AND IN SPL. SESSIONS CASE NO.19 OF 2015 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE, DHARWAD CONVICTING THE APPELLANT FOR OFFENCE UNDER SECTION 366, 376 OF IPC AND SECTION 6 OF POCSO ACT 2012 BY ALLOWING THIS APPEAL. Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.07.16 14:40:11 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ ORAL JUDGMENT The convict in Spl. S.C. No.19/2015 on the file of the III Additional District and Sessions Judge, & C/C II Additional District and Sessions Judge & Special Judge, Dharwad, has filed this appeal challenging his conviction vide judgment dated 30th March 2017 for the offences punishable under Section 366 of the Indian Penal Code, 1860, and Section 6 of the Protection Of Children From Sexual Offences Act, 2012 (POCSO Act). He has also challenged the order of sentence, sentencing him to undergo rigorous imprisonment for a period of ten years for the offence punishable under Section 6 of the POCSO Act and to pay fine of Rs.5,000/-, and to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- for the offence punishable under Section 366 of IPC. 2. i) The case of the prosecution was that, on 14.09.2013, the complainant informed the respondent-Police that, on 13.09.2013 at 10.00 a.m., her daughter (henceforth - 3 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 referred as ‘victim girl’) and her friend Kavitha had gone to Karnataka Bank at Kundgol to open an account. Later at 1.30 p.m., Kavitha and Basavaraj Manjappa Buroji went to the complainant’s house and informed her that when they and the victim girl were walking near KCC Bank, Kundgol, at about 12 noon, the accused came on a motor cycle, pushed them and whisked away the victim girl towards market road. They informed that they followed the accused and found that the motor cycle that the accused was riding was bearing No.KA- 36/L-5163. The complainant informed this to her family members and her relatives and they searched for her. Therefore, she alleged that the accused had kidnapped the victim girl who was a minor aged 17 years. ii) Based on the information provided, the respondent- Police registered a case in Crime No.117/2014 for the offence punishable under Section 363 of IPC. The accused and the victim girl were traced in Hiremorab on 27.01.2015 and the accused was arrested on 27.01.2015 by C.W.36. Based on the information furnished by the accused, the motor cycle that he used for the crime was seized. The accused and the victim girl - 4 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 were subjected to medical examination and after obtaining the forensic report, it was opined that the victim girl was used to the act of sexual intercourse and it was also reported that there was no evidence of fresh sexual intercourse. The respondent- police drew up mahazar of the place of crime and also the relevant mahazars for seizure of the motor cycle, the seizure of M.Os.1 to 14. They recorded the statement of the victim girl as well as the other relevant witnesses and laid a charge sheet for the offences punishable under Sections 366 and 376 of IPC and Section 6 of the POCSO Act. A copy of the charge sheet was furnished to the accused. Accordingly, charges were framed for the offences punishable Sections 366 and 376 of IPC and Section 6 of the POCSO Act. The accused pleaded not guilty and claimed to be tried. iii) The prosecution, in all, examined P.Ws.1 to 21 and marked Exs.P.1 to P.25 and M.Os.1 to 16. Amongst the prosecution witnesses, P.W.1–complainant was a hearsay witness but stood by the prosecution. P.W.2 was the victim girl. P.W.3 was the person who accompanied the victim girl on the date of the alleged incident. P.W.4 was a friend of the victim - 5 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 girl. P.W.5 was the witness to the mahazar (Ex.P.10) of the scene of the crime. P.W.6 was a witness to the seizure of motor cycle under mahazar at Ex.P.11. P.W.7 was the witness to the seizure mahazar under which M.Os.1 to 6 were recovered under Ex.P.13. iv) P.W.8 was the Medical Officer who initially examined the victim and collected clothes of the victim which were marked as M.Os.1 to 6. Her report was marked as Ex.P.16. The clothes worn by the accused were seized and marked as M.Os.7 to 14. P.W.9 was the Medical Officer who examined the victim girl for determination of age as per certificate marked as Ex.P.17. According to P.W.9, the age of the victim girl was between 17 to 18 years though he deposed that he could not give the exact age of the girl. v) P.W.10 was the Senior Teacher at R.V.Patil Government High School, Kamadolli, where the victim girl had studied. P.W.11 was the Assistant Teacher at R.V.Patil Government High School who gave a certificate at Ex.P.18 stating that as per the school records, the date of birth of the victim girl was 31.05.1988. P.W.12 was the Panchayat - 6 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 Development Officer of Hiremorab Gram Panchayat who issued the extract of the property bearing No.122 from where the accused was allegedly arrested and the said property extract was marked as Ex.P.19. P.W.13 was the owner of the motor cycle bearing No.KA-36/L-5163 which was seized and marked as M.O.15. P.W.14 is a witness to the spot mahazar (Ex.P.7). vi) P.W.15 was the woman ASI who recorded the statement of the victim girl. P.W.16 was the Head Constable who registered the case in Crime No.117/2014 and sent the first information to the Court which was marked as Ex.P.20. He also visited the spot of the crime and drew up the mahazar as per Ex.P.7 and also recorded the statement of C.W.10, C.W.13 and C.W.14 and handed over further investigation of the case to P.W.17. P.W.17 was the ASI who recorded the statements of C.W.11 and 12 and the statement of C.W.11 was marked as Ex.P.8. He also arrested the accused on 27.01.2015 and thereafter handed over investigation to P.W.21. vii) P.W.18 was one of the witnesses whose statement was recorded as per Ex.P.21 and he turned hostile. P.W.19 was a witness whose statement was recorded as per Ex.P.22 and he - 7 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 too turned hostile. P.W.20 was also one of the witnesses and his statement was recorded as per Ex.P.23 and he too turned hostile. P.W.21 was the Investigating Officer. viii) The Trial Court read over the incriminating evidence to the accused as survived under Section 313 of Cr.P.C. However, the accused denied the evidence and did not adduce any evidence in defence. Based on the oral and documentary evidence, the Trial Court held that P.W.1 was not an eyewitness to the incident, but based on the information given to her, she had set the criminal law in motion. It perused the evidence of P.W.2 and held that though the defence had disputed the age of the victim, but no material worthy of acceptance was produced to disbelieve the medical report of the victim as well as the school records, which showed the date of birth of the victim as 31.05.1998. It relied upon the evidence of the victim girl (P.W.2) who deposed that the accused came on a motor cycle, took her to a village and thereafter took her to Hiremorab village and kept her in a hut. It also perused the evidence of P.W.2 that despite her protest, the accused had sexual intercourse with her promising her that he would marry - 8 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 her. It perused Ex.P.2 which is the statement of the victim girl recorded under Section 164 of Cr.P.C. It held that due to the threat by the accused, the victim girl did not protest or did not raise an alarm when she was kept in Hiremorab village. Therefore, it held that the trust worthiness of the victim girl was not shaken and that the accused had committed aggravated sexual assault. It also held that P.Ws.3 and 4 who were friends of the victim girl stood by the prosecution and had narrated the incident of the victim girl being kidnapped. It perused the evidence of P.W.13 who was the owner of the motor cycle. He deposed that about one and half a year ago, the accused took the motor cycle and thereafter he got the same released from the Court. It further held that though the Medical Report at Ex.P.14 showed that there were no signs of recent sexual intercourse, but as per the report at Ex.P.16, P.W.8 opined that there was nothing to suggest that the accused was not capable of indulging in sexual intercourse. It also held that the victim girl was kept in custody for four months and on the date of her examination by P.W.8 she had taken bath. Therefore, it held that there could be no signs of recent sexual intercourse. It held that the evidence of P.W.2 - 9 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 was corroborated by the medical evidence as per Ex.P.14 to P.16. Further, it held that Ex.P.17 was the radiological report of the Medical Officer regarding the age of victim girl. It held that after the examination of the teeth and x-ray, the victim girl was aged between 17-18 years. It also perused Ex.P.18 which indicated the date of birth of the victim as 31.05.1998. Therefore, it held that the accused had committed offence of aggravated sexual assault on the victim girl. Consequently, it held that the there was sufficient evidence to convict the accused for the offence punishable under Section 366 of IPC and sentenced him to undergo simple imprisonment of one year and to pay fine of Rs.1,000/-, and rigorous imprisonment for a period of 10 years for the offence punishable under Section 6 of the POCSO Act and to pay fine of Rs.5,000/-. Being aggrieved by the judgment of conviction and order of sentence, the accused is before this Court. 3. i) Learned counsel for the appellant/accused contends that the accused and the victim girl were neighbours and knew each other. He contends that the allegation that the accused had kidnapped the girl on a motor cycle is highly - 10 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 improbable as the spot mahazar shows that the offence was committed at 10.00 a.m. on a working day. He contends that all the prosecution witnesses had admitted that the road where the offence was committed was frequently used by motorists and pedestrians. He also contends that it is highly improbable that the accused had single handedly kidnapped the victim girl that too on his motor cycle. He further contends that the victim girl had stated in her evidence that she was, initially, taken to a village where she stayed for a day at a house of the relative of accused and thereafter traveled by bus to Hiremorab village. He contends that victim did not raise an alarm either in the relative’s house of the accused or while traveling by bus to Hiremorab village. He therefore, contends that this creates a doubt about the prosecution case. ii) He contends that P.W.1 admitted that there were frequent tiffs between the people belonging to the community of the accused and the community of the victim girl. Therefore, he contends that it was possible that the accused was framed to settle scores. iii) He further contends that even at Hiremorab village, where the victim girl was kept for nearly four months, she did - 11 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 not raise any alarm or attempt to escape even when the accused was not at home and had gone out for work. This, he contends, is very unusual and hard to accept and creates a doubt about the sanity of the prosecution. iv) He further contends that there is no injury either on the body of the victim girl or on the accused and thereby belying the case of the prosecution that the accused had forcible sexual intercourse with the victim girl. v) He further contends that as per Ex.P.17, the age of the victim girl was between 17 to 18 years. P.W.9, who issued Ex.P.17, was of the opinion that he could not give the exact age of the victim girl. He contends that Ex.P.18 was the certificate issued by P.W.10 indicating that as per the records maintained in the school, the date of birth of the victim girl was 31.05.1998. He, therefore, contends that the prosecution has failed to produce any clinching material to establish that the victim girl was a “child” as defined under Section 2(1)(d) of the POCSO Act. He contends that in the absence of any proof to establish beyond doubt that the victim was a child, the invocation of Section 6 of the POCSO Act was not proper and the finding of the Trial Court that the accused had committed - 12 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 the offence punishable under Section 6 of the POCSO Act is without basis. In support of his contention, he relied upon a judgment of Co-ordinate Bench of this Court in Crl. Appeal No.1835 of 2019 [Yuvaraja Naika Vs. State of Karnataka & Another, disposed of on 04.10.2023]. He therefore, prays that the impugned judgment of conviction and the order of sentence be set aside and the accused be set free. 4. i) Per contra, learned Additional State Public Prosecution contended that it is in the evidence of P.W.1 and P.W.2 that the house of the victim and the accused were behind each other and therefore, the victim was known to the accused. He contends that P.W.13, who is the owner of the motor cycle bearing No.KA-36/L-5163, deposed that the accused had taken the motor cycle about 1½ years before the date he deposed before the Court, which corresponds with the date of the crime. ii) He contends that the evidence of P.W.2, 3 and 4 corroborated the incident on 13.09.2014 when the accused kidnapped the victim girl on the motor cycle. He contends that the accused held the victim girl captive for nearly four months - 13 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 and had forcible sexual intercourse with her and the same is established by the report of the Medical Officer at Ex.P.17 where it was mentioned that the victim girl was used to sexual intercourse. He therefore, contends that the prosecution has proved the offence punishable under Section 366 of IPC beyond reasonable doubt. iii) He further contends that the x-ray examination of the victim girl reveal that she was aged between 17 to 18 years and the same was corroborated by Ex.P.18, a Certificate issued by the school indicating the date of the victim girl as 31.05.1998. He therefore, contends that the victim was a child and hence, the act of the accused kidnapping the girl and having sexual intercourse was an act of aggravated sexual assault punishable under Section of 6 of the POCSO Act. Therefore, he contends that the conviction of the accused punishable under Section 6 of the POCSO Act and the consequent sentence are well founded and based on clear evidence. He, therefore, prays that the impugned judgment of conviction and order of sentence be upheld. - 14 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 5. I have considered the submissions of the learned counsel for the accused and the learned SPP for the State. I have perused the records of the Trial Court as well as the judgment. The point that arises for my consideration in this appeal is, Whether there was sufficient evidence to establish the charges against the accused beyond reasonable doubt? 6. P.W.2, in her evidence, deposed that when she was walking towards Kundgol to open an account in a bank, the accused turned up on a motor cycle and asked her to hop on. She claimed that though she refused, the accused pushed away P.Ws.3 and 4, held P.W.2 by her hand and rode away with the victim girl. Ex.P.6 is the photograph of the spot of the crime which shows that on either side of the road there are houses. P.W.14 deposed that the said road is always crowded. Besides this, it is highly improbable for the accused to kidnap the victim girl on a motor cycle unless the victim cooperated in the act. The victim girl did not raise any alarm for the passers-by to notice which itself gives an indication that the victim got on to the bike on her own accord. The subsequent conduct of the - 15 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 victim in riding on the bike for nearly 3 ½ hours to go to a house of the relative of the accused where he was admonished, gives a clear impression that the victim accompanied the accused on her own accord. Even at the house of the relatives of the accused, the victim did not raise an alarm and did not attempt to seek any one’s help for being rescued and did not seek help of his relative to rescue her. The fact that the victim went on her own volition with the accused is proved by the fact that the victim and the accused traveled to Hiremorab village in a bus. Even in the bus, the victim did not raise any alarm and did not seek any help for being rescued. Even at the house at Hiremorab, though the victim deposed that there were houses adjoining, she did not raise any alarm and did not attempt to free from the clutches of the accused. As a matter of fact, she deposed that the accused used to go out to work from morning 10’O clock to evening 7’O clock. Even during that time, the victim did not attempt to flee from the place. The victim continued to live with the accused till they were secured by the police. Therefore, as per the case presented by the prosecution, there were no elements of an offence punishable under Section 366 of IPC. The finding of the Trial Court that the evidence of - 16 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 P.W.2, 3 and 4 was sufficient to convict the accused for an offence punishable under Section 366 of IPC is not well founded but is based on assumption and presumptions and hence warrants interference. 7. In so far as the offence punishable under Section 6 of the POCSO Act, it is mandatory that to attract an offence under Section 6 of the POCSO Act, the victim should a “child” as defined under Section 2(1)(d). The manner of ascertainment of the age of child is as prescribed under Section 34 of the POCSO Act which is as follows: “34. Procedure in case of commission of offence by child and determination of age by Special Court.—(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of 1 [the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)]. (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof - 17 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 that the age of a person as determined by it under sub- section (2) was not the correct age of that person.” 8. In the case on hand, Ex.P.17 is the x-ray examination of the dentures/teeth of the victim girl which shows that T8 (wisdom tooth) was erupting a Dental Scientist. Wheeler’s Dental Anatomy, Physiology, and Occlusion has mentioned that T8 usually emerges in late teens or early twenties. The age of the person can be determined based on evidence regarding completion of rooting. Though Ex.P.17 shows eruption of T8 there is no mention whether the rooting of T8 was complete or not. has mentioned that T8 usually emerges in late teens or early twenties. P.W.9 who issued the certificate as per Ex.P.17 deposed that the victim girl was aged between 17 to 18 years, but however he deposed that he could not give the correct age of the victim girl. Ex.P.18, which is the certificate issued by P.W.11, was based on self-declaration that the date of birth of victim girl was 31.05.1998. These evidences were just not sufficient to establish that the victim girl was a child as defined under the POCSO Act. On the contrary, it appears from Ex.P.14 that the date of last menstrual period of the victim was 5 years prior to her examination on 09.02.2015, - 18 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 which would be in the year 2010. It is doubtful whether the victim girl could have her periods as a twelve year old, going by the date of birth mentioned in the school records. Therefore, unless there is clinching evidence to establish that the victim was a child, the Trial Court committed an error in convicting the accused for the offence punishable under Section 6 of the POCSO Act. The least that the prosecution must have done when they pressed charges under Section 6 of the POCSO Act was to get a proper medical examination of the victim girl to ascertain her age as provided under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Since the same is not done, it is not safe to rely upon Ex.P.17 and Ex.P.18 to hand down a conviction for the offence punishable under Section 6 of the POCSO Act. Consequently, the following order is passed: ORDER i) The appeal is allowed. ii) The impugned judgment of conviction of the petitioner for the offences punishable under Section 366 of IPC and Section 6 of the POCSO Act and the consequent sentence are set aside. - 19 - HC-KAR NC: 2025:KHC-D:8146 CRL.A No. 100239 of 2017 iii) The accused is set at liberty. iv) Any bail bonds furnished shall stand discharged. Sd/- (R.NATARAJ) JUDGE KMS Ct:vh List No.: 1 Sl No.: 3