- 1 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 100228 OF 2020 (C) BETWEEN: MAHABOOB @ MEHABOOB S/O. MAHMED SHAIKH, AGE: 29 YEARS, OCC: COOLIE (TEA VENDING), R/O: 2ND CROSS, GANESH PETH, MACHCHI MARKET, GOODS SHED ROAD, HUBBALLI, (NOW HE IS IN CUSTODY), PIN-580 020. … APPELLANT (BY SRI. N.R. KRISHNAPPA AND SMT. SRIDEVI S. KOLHAR, ADVOCATES) AND: THE STATE OF KARNATAKA, BY HUBBALLI RAILWAY P.S., R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENCH DHARWAD. …RESPONDENT (BY SRI. T. HANUMAREDDY, AGA) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION U/S 4, 6, 8 & 12 OF POCSO ACT, & SEC. 376 OF IPC, DATED 17.02.2020 AND 24.02.2020 PASSED IN SPL.S.C.NO.02/2019 BY THE II-ADDL. DIST. & SESSIONS JUDGE & SPECIAL JUDGE, DHARWAD AND ACQUIT THE APPELLANT/ACCUSED OF THE OFFENCES WITH WHICH HE HAS BEEN CONVICTED AND SENTENCED, IN THE INTEREST OF JUSTICE. THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR B K MAHENDRAKUMAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.23 11:46:48 +0530 - 2 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 ORAL JUDGMENT 1. The appellant has been convicted for offences punishable under Sections 4, 6, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’) and sentenced to undergo imprisonment for a period of 10 years. 2. The case of the prosecution is that, on 29-11-2018, at about 3:15 p.m., a member of the Child Helpline Center, Smt. Sunita, produced the victim girl before the first informant as per the order of the Child Welfare Committee. Smt. Sunita had brought the victim girl from Hubballi Railway Station. Upon inquiry by the first informant, the victim disclosed that on 28-11-2018, she had arrived at Hubballi Railway Station from Alnavar along with a woman named Fatima. Fatima left her at the railway station and did not return, leaving the victim to remain there. 3. On 29-11-2018, at around 2:00 a.m., a tea vendor approached the victim and called her, but she did not go with him. The tea vendor called her again, forcibly took her to an empty train coach, and committed forcible sexual intercourse with her twice. Thereafter, he gave her ₹20 and left the spot, while the victim remained at the railway station. At around 8:00 a.m., a member of the Child Helpline took the victim to their center, inquired about the incident, and later produced her before the first informant. The first informant arranged for the victim to be sent to KIMS Hospital, Hubballi, for medical examination through the nursing staff. - 3 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 Subsequently, the first informant lodged a complaint with the police. The police registered a case and initiated an investigation. 4. During the investigation, the investigating officer recorded the victim’s statement. The victim stated that, on 28-11- 2018, at about 8:00 a.m., her relative, Fatima, met her on a train while she was traveling from Alnavar to Hubballi. They arrived at Hubballi Railway Station at 9:00 a.m. Fatima informed the victim to return to her village and left to visit her daughter’s house. The victim remained at Hubballi Railway Station, specifically on Platform No. 4. 5. At around 11:00 p.m., a tea vendor approached her and inquired about her name and address, which she disclosed. He then invited her to an empty train coach, but she refused. He returned, forcibly pulled her hand, and took her to an empty coach. There, he showed her pornographic videos on his mobile phone, touched her body with sexual intent, kissed her, removed her clothes, and committed forcible sexual intercourse twice. Afterward, he gave her ₹20 and left her in the empty coach. The victim spent the night at the railway station. The following morning, she purchased tea and biscuits with the ₹20 given by the accused. At around 8:00 a.m., C.W.7, a member of the Child Helpline, found her and took her to the Child Helpline Center. Subsequently, C.W.7 produced her before C.W.1, the first informant, to whom the victim narrated the incident. Based on the victim’s statement and the first information, the investigation officer proceeded with the investigation. - 4 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 6. The victim had already been sent to KIMS Hospital, Hubballi, for medical examination by C.W.1. The investigating officer arrested the accused on 01-12-2018 and sent him to KIMS Hospital, Hubballi, for medical examination. The officer visited the scene of the incident, prepared a panchanama in the presence of witnesses, and seized clothes and other articles collected by the doctor during the victim’s medical examination. He also visited the Balakiyar Balamandir, where he seized the clothes the victim had been wearing at the time of the incident. The seized articles were sent to RFSL, Belagavi, for chemical analysis. The investigating officer recorded the statements of witnesses, collected relevant documents and medical and forensic reports, and, after completing the investigation, filed a charge sheet before the Court. 7. To prove its case, the prosecution examined P.Ws.1 to 24, exhibited documents marked as Exs.P.1 to P.49(a), and introduced material objects identified as M.O.Nos.1 to 8(a and b). The accused did not lead any defence evidence but marked exhibited documents as Exs.D.1 to D.6. 8. The trial Court, after appreciating the evidence on record and considering the arguments of both parties, framed points for consideration and held as follows: “The prosecution has established the guilt of the accused beyond all reasonable doubt and passed the impugned judgment of conviction and order of sentence.” 9. Learned counsel for the appellant argued that there is no substantial evidence to establish that the appellant committed - 5 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 forcible sexual intercourse on the survivor. It was further submitted that the statements of the survivor in her examination-in-chief and during cross-examination are contradictory, rendering her testimony neither credible nor trustworthy. In the absence of corroborative material to substantiate the allegations against the appellant, it was contended that the impugned judgment of conviction and order of sentence are not legally sustainable. 10. In response, the learned Additional Government Advocate for the respondent-State contended that the testimony of the survivor, when read in conjunction with the medical records, clearly establishes the guilt of the accused beyond all reasonable doubt. It was argued that the trial Court had duly appreciated the evidence on record and correctly held the accused guilty, leaving no ground for interference with the impugned judgment of conviction and order of sentence. 11. After carefully considering the arguments advanced by learned counsel for the parties and thoroughly reviewing the trial Court records, the only point that arises for consideration is: “Whether the prosecution has established the guilt of the accused beyond all reasonable doubt, and whether the impugned judgment of conviction and order of sentence passed by the trial Court is legally sustainable.” 12. In the complaint, it is alleged that the survivor, P.W.2, was brought to Hubballi Railway Station by C.W.10, Fathima, on a train. After leaving the survivor on the platform, Fathima went to visit her relative’s house. During this time, the accused allegedly - 6 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 took the survivor forcibly to an empty bogie, showed her a pornographic video, and committed forcible sexual intercourse with her twice. 13. In her examination-in-chief, P.W.2 (the survivor) stated that while she was waiting at the Alnavar Bus Stand to go to her grandmother’s house, C.W.10, Fathima, took her to Hubballi on a scooter and left her at the railway station with the accused at around 2:00 a.m., saying she would return in the evening., which is contrary to complaint averments wherein it is alleged that the she was brought to Alanavar by Fatima on a train from a railway station. At around 2:00 a.m., the accused, whom she had not seen before, asked for her name and destination. He then offered her snacks and beverages and later forcibly took her to an empty bogie, where he showed her pornographic videos and committed forcible sexual intercourse with her twice against her will. 14. Since the survivor was not conversant in Kannada, the accused posed 71 written questions to her, which were translated into Urdu. During cross-examination, she admitted that she did not answer all the questions and answered only some of them. She further stated that she had previously stayed at the Balakiyar Balamandir (Girl Welfare Centre) and had seen the accused for the first time at the railway station. She also admitted that before the incident, she had visited the accused’s house on two occasions. 15. In her cross-examination, the survivor contradicted her earlier statement, stating that the accused did not take her to the empty bogie, did not show her pornographic videos, and did not - 7 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 sexually assault her. Additionally, there were no eyewitnesses to the alleged incident, and the prosecution was required to prove the guilt of the accused beyond all reasonable doubt. 16. The prosecution relied on the evidence of the survivor and medical records to substantiate the allegation of forcible sexual intercourse. P.W.17, the doctor who examined the survivor on 30.11.2018, testified that the survivor’s hymen had ruptured approximately 24 hours before the examination. However, the doctor found no signs of forcible sexual assault. He further stated that he could not conclude whether the survivor had been subjected to forcible sexual intercourse. 17. Ex.P.30, the medical certificate issued by P.W.17, indicated that there was no evidence suggestive of forcible sexual vaginal intercourse. The medical opinion only noted the presence of a ruptured hymen but neither confirmed nor denied the occurrence of sexual assault. 18. The survivor’s evidence contained contradictions, which cast doubt on its credibility and reliability. She admitted that she saw the accused for the first time at the railway station. The complaint alleged that the accused identified himself as “Mehaboob” during the incident in the bogie. However, in her examination-in-chief, the survivor did not mention that Mehaboob sold tea on the platform or that the accused disclosed his name at the time of the incident. - 8 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 19. Since the survivor did not know the accused’s identity at the time of the incident, the summoning of the accused for a test identification parade in the presence of the Tahsildar raises suspicion that the accused was falsely implicated in the matter. 20. The Investigating Officer, examined as P.W.22, stated that the survivor was produced before the police station by P.W.1. He further testified that the accused was arrested on 01.12.2018 after obtaining information about individuals selling tea on the platform. He also stated that he had requested CCTV footage from the railway authorities; however, the footage was not provided as the CCTV cameras were not functional on the date of the incident. C.W.10, Fatima, who allegedly brought the survivor from Alnavar to Hubballi, was not examined by the prosecution to corroborate the claim that she left the survivor with the accused on the date of the incident. Therefore, the prosecution failed to establish that the survivor was brought from Alnavar by Fatima and that she was left with the accused at the time of the alleged incident. 21. The other witnesses examined by the prosecution were not material witnesses or eyewitnesses to the alleged incident but merely circumstantial witnesses. When the testimony of the survivor and the medical evidence establish that there was no forcible sexual intercourse with the survivor, the evidence provided by these circumstantial witnesses cannot be relied upon to establish the guilt of the accused beyond all reasonable doubt. - 9 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 22. To prove that the survivor was a minor at the time of the incident, the prosecution examined P.W.13, the Headmaster, who issued the school certificate of the survivor, marked as Ex.P.23. According to Ex.P.23, the survivor’s date of birth is recorded as 15.07.2005, and the alleged incident occurred in the year 2018. Based on this document, the prosecution contended that the survivor was 14 years old at the time of the incident. However, the accused strongly disputed the survivor’s age as claimed by the prosecution. Therefore, an ossification test should have been conducted to determine the survivor’s age, as the school certificate issued by the school authorities lacks independent evidentiary value unless corroborated by other material evidence. 23. In light of the above, I am of the opinion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. Accordingly, I pass the following: ORDER i) The appeal is allowed. ii) The impugned judgment dated 17.02.2020 and the order of sentence dated 24.02.2020 passed by the II Additional District and Sessions and special Judge, Dharwad, in Spl.S.C.No.02/2019 is hereby set aside. iii) Appellant/accused is acquitted for the aforesaid offences. - 10 - NC: 2025:KHC-D:874 CRL.A No. 100228 of 2020 iv) The appellant is in judicial custody since 01.12.2018 and Jail authority is directed to release the appellant/accused forthwith, if he is not required for in any other cases. AC CT:BCK List No.: 1 Sl No.: 59 Sd/- (HEMANT CHANDANGOUDAR) JUDGE