CRL.A.NO.100117/2022 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 14TH DAY OF MARCH, 2025 BEFORE THE HON’BLE MS.JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.100117/2022 BETWEEN: MOHAMMED UBEDULLA S/O MOHAMMED SALEHA SHAIKH AGED ABOUT 48 YEARS, R/O SHIVAMOGGA NOW AT NEAR GALIMASTI TEMPLE, SIRSI ...APPELLANT (BY SRI. S.P. KANDAGAL, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH NEW MARKET POLICE STATION SIRSI REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH - 580 011 …RESPONDENT (BY SRI. ABHISHEK MALIPATIL, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. SEEKING TO PASS AN ORDER CALLING FOR THE RECORDS FROM THE TRIAL COURT, AND SET ASIDE THE JUDGMENT AND ORDER DATED 15.03.2021 AND ORDER OF SENTENCE DATED 16.03.2021 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC- U. K. KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER POCSO ACT) IN SPECIAL CASE NO.28/2019 CONVICTING THE APPEALLANT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 376(2)(f) AND 506 IPC AND SECTIONS 6 AND 8 OF THE POCSO ACT AND PASS SUCH OTHER ORDER OR DIRECTIONS AS MAY BE DEEMED FIT UNDER THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA CRL.A.NO.100117/2022 2 THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 03.12.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON’BLE MS. JUSTICE J.M.KHAZI CAV JUDGMENT (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) This appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, ‘Cr.P.C’), is by the accused challenging his conviction and sentence for the offences punishable under Sections 376 (2)(f), 506 of IPC and Sections 6 and 8 of POCSO Act. 2. For the sake of convenience parties are referred to by their ranks before the trial Court. 3. A charge sheet came to be filed by the concerned police against the accused alleging that he is no other than the father of prosecutrix. Accused along with his wife, son and daughter (prosecutrix) was staying in a room behind the house of his in-laws near Sri Gali Masthi temple, Sirsi. On 10.06.2018, 11.00 a.m, when the prosecutrix was alone in CRL.A.NO.100117/2022 3 the room and her mother had gone out to wash clothes and brother was out playing, accused committed rape on the prosecutrix who was aged 15 years and gave threat that if she disclose the said fact to anyone, he would kill her mother and brother by poisoning them. Similarly on 5-6 occasion, accused committed rape on the prosecutrix. As a result of the rape, prosecutrix became pregnant and gave birth to a son on 04.03.2019 and thereby the accused has committed the offences punishable under Sections 376(2)(f), 506 of IPC and Sections 4, 6 and 8 of POCSO Act. 4. In respect of the incident, complaint is given by the prosecutrix. It reveal that at the time of filing the complaint prosecutrix was studying in 9th standard at Ave Maria High School, Sirsi. Though her father Ubedulla Shaikh (accused for short) is hailing from Ragigudda of Shivamogga, after his marriage with the mother of the prosecutrix, he settled at Sirsi in the house of her maternal grand parents. He does coolie (Hamali) work, while her mother is a homemaker. CRL.A.NO.100117/2022 4 4.1 It is further stated in the complaint that on 10.6.2018 at 11.00 a.m, while she was in the house, her mother had gone out to wash the clothes and her brother Mohammed Sufiyan was playing outside, accused started touching her body, including private part and removed her clothes. Even though she resisted, he committed rape on her. Accused warned the prosecutrix not to reveal this fact to anyone or else he would kill her mother and brother (his wife and son) by poisoning them. Accused repeated the said act 5-6 times. Fearing him, she did not inform anyone about the said incidents. 4.2 About three months prior to the date of filing the complaint, Fatima B. Latanwale the maternal grandmother of prosecutrix called prosecutrix to her house and was enquiring as to why she is not visiting her house and she is very silent and dull. While so speaking, Fatima B Latanwale touched her body and finding that her stomach is bulged, she questioned the prosecutrix. When she did not give any reply, Fatima B Latanwale took her to the nursing home of Dr Shanta Bhat CRL.A.NO.100117/2022 5 and on examination, the doctor revealed that prosecutrix is seven months pregnant. When Fatima B Latanwale demanded as to who is responsible for the same, she gave the name of Ayan as tutored by Accused. Thereafter she stopped going to school. 4.3 On 04.03.2019 at 3-00 a.m, prosecutrix suffered labour pain. She was taken to TSS hospital where she gave birth to a son. After discharge from the hospital, when her maternal grandparents made her to touch Quran and reveal the name of the person who is the father of the child, she disclosed the truth and revealed the fact of accused having raped her on multiple occasion resulting in the her pregnancy. Thereafter, the Anganwadi Aaya and teacher visited her and enquired about the incident and as per the advice given by the officials of the child helpline, accompanied by her maternal grandparents she visited the police station and filed the complaint. CRL.A.NO.100117/2022 6 5. Based on the complaint, the concerned police have registered the case in Cr.No.37/2019 for the offences punishable under Section 376(2)(f) and 506 IPC and Sections 4, 6 and 8 of the POCSO Act. During the investigation both prosecutrix and accused are subjected to medical examination. The blood samples of prosecutrix, accused and the child were collected and sent to FSL Bengaluru for DNA profiling to ascertain the paternity of the child. After conducting detailed investigation, charge sheet is filed against the accused. 6. Accused pleaded not guilty to the charges levelled against him and claimed trial. He has come up with a defence that one Ayan was responsible for the pregnancy of the prosecutrix and to save him, he has been falsely implicated. 7. In the light of the specific allegations made against the accused, initial and heavy burden is on the prosecution to prove the allegations beyond reasonable CRL.A.NO.100117/2022 7 doubt. Incidentally, it is also necessary to examine whether the accused has proved, by atleast preponderance of probabilities that there is a person by name Ayan and he is responsible for the pregnancy of the prosecutrix and accused is falsely implicated due to the stained relationship between him and the mother of the prosecutrix. 8. This is an unfortunate case, wherein it is alleged that accused being the father of prosecutrix has raped her repeatedly 5–6 times resulting in her pregnancy. This fact came to light to outsiders only when the prosecutrix gave birth to a son and after coming to know about an unmarried minor girl giving birth to a child came to the notice of the concerned officials of Child Welfare Department, it lead to the registering of the case and ultimately charge sheet came to be filed culminating in the conviction of the accused. 9. The relationship between the accused and the prosecutrix being father and daughter is not in dispute. PW-1 the prosecutrix, PW-3 and PW-11, the parents-in-law and CRL.A.NO.100117/2022 8 PW-12, the wife of accused have deposed to this effect. PW-4 Sunil Bhovi is working as Co-ordinator at Child Helpline run under the Child Development Department. PW-5, Sheila Naik is the additional CDPO, Sirsi. PW-6 Poornima Hegde is the Anganwadi worker, Sirsi. Their evidence reveal that on receipt of anonymous call regarding a minor unmarried girl giving birth to a child, they went to the house of prosecutrix and her maternal grandparents. They came to know that accused being the father of prosecutrix was responsible for her pregnancy. Even though the testimonies of PW-4 to 6, is hearsay so far as the actual incident is concerned, it prove the relationship between the accused and the prosecutrix. 10. At the outset, it is relevant to note that even though the accused is hailing from Shivamogga, after the marriage, he stayed along with his family at Sirsi in the outhouse of his parents-in-law, where according to the prosecution, the incidents, wherein the prosecutrix was raped by the accused has taken place. The fact that accused along with his family, including the prosecutrix was staying in CRL.A.NO.100117/2022 9 the outhouse of his parents in law, is also not in dispute. Even though the accused has tried to project that after the marriage for sometime, his wife stayed with her in-laws at Shivamogga, but as she could not adjust with them, she shifted to her parents’ place and they started living in the outhouse consisting of a room, kitchen and bathroom. 11. For whatever reason, the fact remains that accused along with his wife and children, including the prosecutrix were staying in the outhouse of his parents-in- law. This fact is deposed to by PWs-1, 3, 11 and also by PW- 12, who is no other than the wife of the accused and mother of the prosecutrix. PW-18 is the first investigating officer who has registered the case, visited the spot and drawn the spot Mahazar at Ex.P2 and also prepared the rough sketch at Ex.P3. The investigating officer has also got prepared sketch through PW-20 Hanumanth Naik, Assistant Engineer, PWD as per Ex.P30. These documents coupled with the evidence of PWs-18 and 20 also prove that the accused along with his CRL.A.NO.100117/2022 10 family including the prosecutrix, was staying in the outhouse of his parents-in-law. 12. Before going to the actual incident, it is necessary to examine whether the prosecution has proved that as on the date of incident prosecutrix was a minor. As per the complaint averments as on the date of filing the complaint, prosecutrix was aged 15 years. She was studying in 9th standard at Ave Maria High School, Sirsi. During the course of her evidence, she has deposed that her date of birth is 12.11.2004. Her maternal grandmother i.e, PW-3, Fatima B Latanwale has also deposed that during 2018, prosecutrix was studying in 9th standard. The evidence of PWs-4 and 5 reveal that on receipt of information that a minor girl has given birth to a child, they went to the house of prosecutrix and made enquiry. After the complaint was filed PW-8 Dr. Padmini Bhimsen has conducted medical examination of the prosecutrix, at the instance of the investigating officer. She has deposed that Ex.P6 is the report given by her, wherein on the basis of information furnished by the CRL.A.NO.100117/2022 11 prosecutrix, she has noted her age as 15 years and as per the opinion of the dental surgeon and radiological examination, her approximate age was 15–16 years as on the date of her examination. 13. PW- 14, Sujata J is the Headmistress of Ave Maria High School Sirsi. She has deposed that on the request of investigating officer, she has furnished the certificate pertaining to the prosecutrix. The contents of the same are taken from the register maintained in their school. As per the same, the date of birth of the prosecutrix is 12.11.2004. During her cross-examination, she has denied the suggestion that on the instructions of the investigating officer, she has given the information to suit the prosecution case. She has also denied that Ex.P17 does not pertain to the prosecutrix. 14. In this case, the prosecution has also examined PW-15 Ramachandra Vernekar, the Registrar of Birth and Death. He has issued the birth certificate of prosecutrix as per Ex.21 and according to the same the date of birth of the CRL.A.NO.100117/2022 12 prosecutrix is 12.11.2004. During cross-examination by the defence, he has denied the suggestion that normally the entry in the register of birth and death would be made on the basis of oral and telephonic communication. He has also denied that on the instructions of the investigating officer, he has concocted Ex.P21. Now coming to Ex.P21, it is the extract of register of birth. It is registered on 19.11.2004. The place of birth of the child is noted as Pandit general Hospital Sirsi, Uttara Kannada, Karnataka. The parents’ name of the child is given as Kulsumbi and Ubed M Saliha. It's registration number also indicate that it is registered during 2004. Through the testimonies of PWs-1, 14 and 15, the prosecution has proved the date of birth of the prosecutrix as 12.11.2004. Thus, as on the date of incident i.e, 10.06.2018, the prosecutrix was aged 13 years 6 months. 15. It is the definite case of the prosecution that accused being the father of the prosecutrix sexually assaulted her, resulting in her pregnancy. The first incident CRL.A.NO.100117/2022 13 took place on 10.06.2018 and thereafter accused repeated the same 5–6 times and gave threat to the prosecutrix, not to reveal the same to anyone or else he would kill her mother and brother, by poisoning them. Accused has taken a defence that one Ayan was responsible for the pregnancy of prosecutrix and in order to save him, accused is being made scapegoat. PW-1 the prosecutrix, PWs-3 and 11 being the maternal grandparents of the prosecutrix and PW-12, the mother are the material witnesses to establish this fact. PWs- 1, 3 and 11 have supported the prosecution case. Prosecutrix in clear and unequivocal terms has deposed that on 10.06.2018, when her mother went out to wash clothes and her brother left the house to play, she and accused were alone in the house, accused started touching her body, including her private part and despite her resistance committed sexual intercourse with her and gave threat not to disclose it. He repeated this act 5–6 times and every time he used to give threat that he would poison her mother and brother, if she disclose this fact to anyone. CRL.A.NO.100117/2022 14 16. The testimonies of PWs-3 and 11 though not direct on the aspect of sexual assault made on the prosecutrix by the accused, is to the effect that they observed that the prosecutrix has stopped coming to their house and she used to remain silent. On one day, PW-3 called the prosecutrix to her house and lovingly enquired about her behaviour. So speaking when she touched and caressed her body, she found her tummy bulged. Therefore, she took her to the hospital of PW-7 Dr Shanta Bhat. On examination, the doctor revealed that prosecutrix is 7 months pregnant. Hearing this, PW-3 fell down and lost consciousness. The evidence of PWs-1,3 and 11 reveal that after returning from the hospital, both PWs-3 and 11 repeatedly enquired the prosecutrix as to who is responsible for her pregnancy. However, PW-1 replied that Ayan is responsible. In fact, she has deposed that it was the accused who tutored her to give the said reply in case anyone enquire about her condition. CRL.A.NO.100117/2022 15 17. Unfortunately, PW-12, though being the mother of the prosecutrix has turned hostile and stated that prosecutrix had become pregnant, but she did not know anything about filing complaint against the accused and that she has not given statement to the concerned police. 18. It is pertinent to note that even after coming to know about the pregnancy of the prosecutrix, no complaint was filed. In fact, the evidence of PWs-1, 3 and 11 reveal that on 04.03.2019, when the prosecutrix suffered labour pain, she was taken to TSS Hospital, Sirsi, where she gave birth to a male child. Even after the birth of the child, no complaint was filed against the accused. PW-10 Dr. Sharada Satish was the Gynaecologist who attended the prosecutrix and delivered her baby. Her evidence, more particularly her cross-examination reveal that at the hospital, the mother of the prosecutrix represented that prosecutrix is married and her age was given as 18 years and her husband's name was given as Ayan. CRL.A.NO.100117/2022 16 19. It appears if the true fact of prosecutrix being a minor, unmarried is revealed and come to the knowledge of the doctors, they may not attend to her and/or also insist upon calling the police, the mother of the prosecutrix has chosen to conceal the true facts. The evidence of PWs-1, 3 and 11 reveal that after discharge from the hospital when the prosecutrix went back home along with the child, after she was made to swear on God by touching Quran, she disclosed the fact that accused was responsible for her pregnancy. Even after the same, they have not chosen to file any complaint. 20. The predicament of prosecutrix and her family members in not filing the complaint is understandable. It would expose the accused to criminal action and also reputation of the family and the prosecutrix was at stake. Despite the fact that they were not in a position to explain how prosecutrix is a minor and unmarried has given birth to a child, it appears the family of prosecutrix have tried to protect the accused from prosecution. The fact came to light CRL.A.NO.100117/2022 17 only after the concerned officials of the Women and Child Welfare Department, the Anganwadi workers and others got an anonymous call about the prosecutrix being a minor and unmarried giving birth to the child. They have visited the house of the prosecutrix and on enquiry came to know about the truth, after which complaint came to be filed. 21. The evidence of PW-4 Sunil Bhovi, PW-5 Sheela Naik and PW-6 Poornima Hegde, though not directly on the actual incident, when they approached the prosecutrix and her family members, they came to know about it. After they were counselled and advised, the complaint was filed. 22. As already noted during the examination-in-chief PW-12 Kulsumbi, the mother of prosecutrix has not supported the prosecution. However, during her cross- examination by the learned HCGP, she has admitted that during December 2018, when her mother enquired the prosecutrix about her behaviour in not visiting her house and being silent and carresed her body lovingly, the fact of CRL.A.NO.100117/2022 18 pregnancy of prosecutrix came to light. She has also admitted that on 04.03.2019 prosecutrix was taken to the hospital where she gave birth to son and after returning from the hospital when they enquired prosecutrix about the person responsible for her pregnancy, she revealed the name of accused and also stated about the threat given by him. She admitted about the visit of officials of child welfare department leading to the filing of the complaint. 23. However, during her cross-examination by the defence, she has given admissions favouring the defence taken by the accused that he used to be angry with the prosecutrix for moving with boys, coming home late and always using the WhatsApp. However, though she has admitted a suggestion made on behalf of the accused, that once accused assaulted the prosecutrix on the ground that she was going out and speaking to Ayan, she has denied the suggestion that Ayan was living in their area and that prosecutrix was in love with him. CRL.A.NO.100117/2022 19 24. DW-1 Mohammed Saifullah is the brother and DW-2 Salma Ayub Khan is the sister of accused. Both of them are residents of Ragigudda of Shivamogga. They have deposed about the strained relationship between the accused and his wife and that he was suffering from TB and for this reason, he was made to sleep outside the house as his wife was apprehensive that she may also contact the said disease. They also deposed that from the accused, they came to know that prosecutrix was in friendship with one Ayan and it was objected to by the accused. DW-1 has gone to the extent of saying that for a period of 15 days, prosecutrix had left the house and after coming to know about it, he advised the accused to file complaint, but he expressed that he do not know how to file the complaint. He has also deposed that after coming to know that prosecutrix is seven months pregnant, he and others went to Sirsi and enquired about it. Both PWs-3 and 11 disclosed that, one Ayan is responsible for the same, but they refused to lodge complaint. CRL.A.NO.100117/2022 20 25. During their cross-examination by the prosecution, both DWs-1 and 2 have admitted that they have no personal knowledge about the evidence given by them and that it is based on the information furnished by the accused. However, during the cross-examination of the material witnesses examined for the prosecution, no suggestions are made in consonance with the testimonies of DWs-1 and 2. This itself goes to show that the DWs-1 and 2 are tutored to give evidence to save the accused from the punishment. When DWs-1 and 2 are not having any personal knowledge about the facts of the case and their evidence is not of any help to the accused, the proper course available to him was to give evidence. Of course, it would have been an exercise in futile as the defence taken by the accused is false and untenable. 26. Now the question would be who this Ayan is, and whether any such person exists in reality. Time and again suggestions are made to the material prosecution witnesses CRL.A.NO.100117/2022 21 that Ayan was responsible for the pregnancy of the prosecutrix and he was a relative of PWs-3 and 11. However, the accused has not clarified who the said Ayan is and how he is related and where he was staying, etc. It appears the name Ayan is invented by the accused to put the blame. In fact, the testimony of PW-1 reveal that after her pregnancy came to light during the seventh month, as tutored by accused she gave the name Ayan as the person responsible for her pregnancy. After her delivery, as no person by name Ayan is there and that the prosecutrix is lying, PW-3 made her to swear on Quran and came to know about the accused being the culprit. Except suggesting that one Ayan is responsible for the pregnancy of prosecutrix, the accused has not come up with any concrete evidence as to the existence of any person by that name. 27. As deposed by DW-1, if during the seventh month of pregnancy of prosecutrix, he came to know from accused that prosecutrix was in friendship with said Ayan and also came to know that the mother and maternal grandparents of CRL.A.NO.100117/2022 22 prosecutrix were not ready to file complaint against him, there was no impediment for the accused to file complaint against the said Ayan or take any suitable action against him. The very fact that he has not done so goes to show that no person by name Ayan is in existence and it is a story cooked up by the accused to escape from the Punishment. Therefore, question of the prosecutrix or her mother or maternal grandparents, trying to save Ayan and filing false complaint against accused would arise. 28. On the contrary, the conduct of PWs-1, 3, 11 and 12 indicate that, in fact, they tried all their level best to conceal the incident. Only after the officials of the Child Welfare Department approached, they choose to file the complaint. Fortunately, except PW-12, the rest have supported the case of the prosecution. Even though PW-12 - the mother of the prosecutrix has turned hostile, however, her answers given during the cross-examination by the prosecution clearly establish the case of the prosecution and support and corroborate with it. CRL.A.NO.100117/2022 23 29. Now coming to the medical evidence led by the prosecution to prove the allegations against accused. PW-9 Dr Vinayak Subrahmanyam is the medical officer who has examined the accused and given report that there is nothing to suggest that accused is incapable of performing sexual act. He is also the one who collected the blood samples of accused, prosecutrix and her male child for the purpose of DNA testing and given evidence to that effect. Except making former suggestions of denial, practically, there is no cross- examination of this witness. 30. As already discussed, PW-8 Dr Padmini Bhimsen has examined the prosecutrix and given report regarding her age and the fact that She had recently given birth to a child, and based on the examination of the prosecutrix she has given report. She has also recorded the history given by the prosecutrix wherein she has stated that it was the accused who committed sexual assault on her, leading to her pregnancy and giving birth to a male child. After examination CRL.A.NO.100117/2022 24 of DNA report, she has given final opinion. The evidence of this witness is also not seriously challenged by the defence, except making denials. Her evidence and report collaborate with the DNA report of the accused, prosecutrix and her male child. 31. Now coming to the DNA report. PW-13 Dr Prashant R.G is the Senior Scientific Officer, DNA division, FSL Madiwala, who has conducted the DNA profiling of the blood samples of accused, prosecutrix and her male child. He has clearly deposed that the samples were received by the head of the department and assigned to him. He found the seal on the blood samples intact and tallying with the sample seal. Coding of the blood samples were done by the head of the department and given to him. He subjected the coded samples to DNA examination and submitted result to him for generation of report. After the report was generated, it was returned to him for his opinion. On examination of the DNA report, he came to the conclusion that accused and the CRL.A.NO.100117/2022 25 prosecutrix are the biological parents of the male child born to the prosecutrix. His report is marked as Ex.P16. 32. During his cross-examination, PW-13 has deposed that 50% of the DNA of a person would match with the father and 50% with the mother, he has also stated that the DNA white chromosome of the child will match with its grandfather. However, Autosonal DNA may or may not match with its grandfather. But if the grandfather is the biological father of the child, then the Autozonal DNA would match. However, he has denied the suggestion that the police had given him information that accused is the biological father of the child of the prosecutrix and on that basis, he has given a false report. 33. Thus, the DNA report conclusively establish the case of the prosecution that it is the accused who is the biological father of the male child given birth to by the prosecutrix. It corroborate with the oral evidence of PW-1, which is supported by the testimonies of PWs-3, 11 and 12 CRL.A.NO.100117/2022 26 and also the other official witnesses. The DNA report falsify the defence taken by the accused that one Ayan was the person responsible for the pregnancy of prosecutrix and in order to save him, accused is falsely implicated. Having regard to the fact that accused is the father of the prosecutrix, it is very absurd to suggest that the prosecutrix his wife and their relatives have falsely implicated him for the sake of a person called Ayan, who is not even in existence. If accused is not the biological father of the child born to the prosecutrix, the DNA report would not have been positive. 34. The trial court on meticulous examination of the oral and documentary evidence placed on record has rightly held that allegations against accused are proved beyond reasonable doubt. The punishment imposed is also proportionate to the gravity the offence. In fact, having regard to the serious allegations made against the accused who being a father of the prosecutrix has indulged in sexually assaulting her, resulting in her pregnancy and giving birth to a child, it could be held that the trial Court has taken CRL.A.NO.100117/2022 27 a lenient view in imposing the punishment. Consequently, the appeal is liable to be dismissed, and accordingly the following: ORDER (i) Appeal filed by the accused is dismissed. (ii) The impugned judgment and order dated 15.03.2021 in Spl.C.No.28/2019 on the file of Addl.District and Sessions Judge- FTSC- 1, U.K.Karwar (Special Court for trial of cases filed under POCSO Act) is hereby confirmed. (iii) The Registry is directed to send back the trial Court records along with copy of this order forthwith. Sd/- (J.M.KHAZI) JUDGE RR