- 1 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 100376 OF 2022 BETWEEN: THE STATE OF KARNATAKA, REP. BY THE CIRCLE INSPECTOR OF POLICE, SANDUR CIRCLE, SANDUR, BALLARI DISTRICT, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. …APPELLANT (BY SRI. M. B. GUNDWADE, ADDL. SPP) AND: ANMOL SHARMA S/O. BASANTH KUMAR, AGE 25 YEARS, WORKING IN FACTORY, R/O. NEAR J. K. BAR, TORNAGALLU, R.S., SANDU TALUK, BALLARI DISTRICT. …RESPONDENT (BY SRI. SRINIVAS B. NAIK, ADVOCATE) Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 THIS CRIMINAL APPEAL IS FILED U/S.378(1) AND (3) OF CR.P.C, PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.07.2021 PASSED BY THE I ADDL. DISTRICT AND SPECIAL JUDGE, BELLARI IN SPECIAL CASE NO.49/2016 AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.07.2021 PASSED BY THE I ADDL. DISTRICT AND SPECIAL JUDGE, BALLARI, IN SPECIAL CASE NO.49/2016 AND CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE U/S.366, 376(n), 506 OF IPC AND U/S. 4 AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012. THIS APPEAL, HAVING BEEN HEARD AND RESERVED ON 13.02.2025, THIS DAY, UMESH M ADIGA, J., HAS PRONOUNCED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This appeal is by the State against the judgment dated 16.07.2021 passed by the learned I Addl. District and Sessions Judge and the Special Judge under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) in Special Case No.49/2016 at Ballari (for short ‘the Trial Court’). - 3 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 2. Brief facts of the case are that; the victim girl was aged about 14 years at the time of the incident. She is the daughter of PW1, Ravindrapal and PW2, Smt.Rukmini Devi. The victim was studying in the School at Jindal Adarsha School at Shankara Gudda Colony. On 08.12.2015, in the morning, when she was going to School, she did not get the bus to go to the School. As the accused knew her, he came to the said spot and told her that he would take her to the School. But instead of taking her to the School, took her to his brother’s house. In spite of her protest, he had forceful sexual intercourse with her. Two to three days, he kept the victim in his brother’s house and thereafter took her to his native place i.e., Bharipura village, Sarai Lakan si Taluk, Mou Nath, Bhanjun district of Uttar Pradesh. 3. Since accused kidnapped the victim, she did not return home on the day of incident. Her parents searched her here and there and enquired with her friends and their relatives. During enquiry, PW4 intimated PW1 that he saw - 4 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 the victim with the accused about two to three days prior to his enquiry. Brother of the accused was also serving in Jindal factory. PW1 enquired with his brother-PW5. PW5 told PW1 that his brother and victim girl went to their native place and he would bring them back and also requested PW1 not to lodge any complaint against his brother. Thereafter, he went to his native place. However, while returning back, he did not bring the victim girl back. He told PW1 that they could not get reservation in railways and hence they could not come back. But thereafter also they did not come back. Hence PW1 lodged a complaint before Torangallu police. 4. On the basis of the complaint, police registered a case in Crime No.02/2016 for the offence punishable under Sections 363 of the IPC. 5. After registration of the case, Police secured presence of the victim as well as the accused. Took the victim to the Magistrate and got recorded her statement under Section 164 of Cr.P.C. and thereafter referred her to - 5 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 medical examination. The investigating officer drew mahajars of the spot of incident and seized of the articles; collected medical reports of the accused as well as PW3, the victim girl and on conclusion of the investigation, submitted the charge-sheet to the Spl.Court for the above said offences. 6. The trial Court after hearing both parties and after perusing the records, framed charges for the offence punishable under Section 363 of the IPC. Accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 15 witnesses as per PW1 to 15 and got marked 14 documents as per Exs.P1 to P14b and 15 material objects as MOs.1 to 15. After closure of the evidence, the learned trial Judge examined the accused under Section 313 of Cr.P.C. The accused did not offer defence evidence when called upon. The trial Court after hearing both the parties and appreciating the evidence on the record, recorded that accused was not guilty for the alleged offences. Accordingly by the - 6 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 impugned judgment dated 16.07.2021 acquitted the accused of the offences punishable under Sections 366, 376(N) and 506 of IPC and Sections 4 and 6 of POCSO Act. The same is challenged by the State in the present appeal. 7. We have heard the arguments of the learned Additional State Public Prosecutor and the learned advocate for the accused. 8. The learned State Public Prosecutor vehemently contended that victim girl-PW3 has narrated the facts of the case and she has stated that against her wish and inspite of her protest, accused committed rape on her, in his house at Toranagallu. Thereafter, he took her to his native place at Uttar Pradesh and again committed forceful sexual intercourse with her. Her evidence is corroborated by medical evidence and PWs.1 and 2, who are parents of the victim girl, have stated about the facts of the case. - 7 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 9. In the cross-examination of PWs.1 to 3, nothing was brought out to discard their evidence. The investigating officer was examined as PWs13 and 14. Both of them have stated about the investigation done by them. There was no reason to disbelieve the evidence of the material witnesses. Still the trial Court on flimsy reason not believed their evidence and acquitted the accused for the alleged offences. The said findings are enormous and hence prayed to reverse the judgment. 10. The learned counsel for the accused contends that PW3, while recording the statement under Section 164 of Cr.P.C. has not at all stated about alleged sexual assault against her. And at the time of evidence, before the Court, she might be tutored by PWs.1 and 2 and she has stated different facts before the Court. It clearly indicates that she is a tutored witness. Her conduct is also very suspicious. She was said to be kept in the house of brother of the accused. It is not her evidence that she was confined in the house at Toranagallu. But at no - 8 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 point of time she tried to escape from the said house. She was said to be taken from Toranagallu to a village in Uttara Pradesh State and according to her, it was a journey of one and half days. But she did not raise her voice either in the train when she was travelling from Toranagallu to Uttar Pradesh or she tried to escape or take assistance from the nearest Police Station to come back to her native place. While staying in the house of accused at Uttar Pradesh also she did not try to escape. All these facts go to show that the alleged incident had not at all taken place. 11. The learned advocate for accused further contends that PW3 is said to be aged about 14 years at the time of incident and she was an adolescent. She was missing from the house of PWs.1 and 2 and they kept mum for a period of about a month from the date of her missing. No prudent man may keep quite when his young daughter was missing from the house. The - 9 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 contention of prosecution in this regard is doubtful. All this indicates that no such incident had taken place. 12. He further submits that, as rightly noted by the learned trial Judge, the investigating officer has not collected evidence about travelling of the victim and the accused from Toranagallu to their native place at Uttar Pradesh and back to Toranagallu. These facts clearly indicate that no such incident had taken place. Considering the evidence of prosecution, the trial Judge acquitted the accused. Hence, interference in the said finding is not required. With these reasons, prayed to dismiss the appeal. 13. Following point emerges for our determination: i. Whether the learned trial Judge erred in acquitting the accused of the charges levelled against him and interference in the said finding is required? ii. What order? - 10 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 14. Our findings on the above point No.1 is in the negative for the following reasons. 15. In this case, material witness is PW3, who is victim of the incident. According to her evidence, she was studying 8th standard at the time of alleged incident. She was not a rustic village girl. Ex.P1 is typed complaint and it is in Kannada language. PW1 in his evidence has not at all stated as to where he got it typed. In the said complaint, it is stated that on 08.12.2015 at 7:30 am, as usual, PW3 went to school. Normally she used to return home at 3:00 pm. However on that day she did not return home. He searched her and enquired with all the relatives and friends but he could not get any information. About three to four days after missing of PW3, while enquiring his friend Lakshmi Narayana (PW4), told that he saw the victim along with accused on 08.12.2015 at 1:00 pm. Thereafter, he enquired with elder brother of accused and found that PW3 and accused went to their native place in Uttar Pradesh State. Brother of accused assured to bring - 11 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 her back but did not bring and hence he filed police complaint. On the basis of Ex.P1 police registered a case in Crime No.2/2016 under Section 363 of the IPC. 16. Exhibit P2 is the statement of PW3 recorded by the Magistrate under Section 164 of Cr.P.C. In the entire statement, there is no whisper that accused committed rape on her. On the contrary, she has stated that whenever she used to go home after School late, her parents used to blame her. On 07.12.2015 she went home late and her parents blamed and shouted at her. She was unhappy and crying. At that time accused consoled her and told her to come along with him to his native place. Accordingly, she went with him to his native place. She has not at all stated that accused took her to his house and kept her in the said house for two to three days and had physical relationship with her against her wish and inspite of her protest. She has not at all alleged about commission of rape on her. Absolutely there is no allegation regarding commission of rape on her. - 12 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 17. During the course of the evidence, PW3 has stated that accused committed rape on her in his brother’s house at Toranagallu. Thereafter accused took her to Uttar Pradesh by train. Both of them went to railway station from house of brother of the accused by auto. 4-5 days after they reached the native place of the accused, brother of accused telephoned to accused and informed that father of PW3 has lodged a complaint; and told her to talk to her Father. She spoke to her father and requested to take her back to Toranagallu. PW1 requested both accused as well as his brother to bring her back to Toranagallu. And both of them came back. During evidence, she has not at all stated that when she was residing with the accused in his native place, he has committed rape on her. She has also not stated that she tried to escape from the custody to return home. The evidence of PW1 creates serious doubt about the case of prosecution. 18. The investigating officer has not collected railway tickets or reservation particulars of travel of PW3 - 13 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 and accused from Toranagallu to the native place of accused and return. During evidence, PW3 did not explain as to why she did not seek help from the co-passengers when she was travelling from Toranagallu to native place of accused at Uttar Pradesh. According to her evidence, they travelled one and half days to reach native place of accused. There was no hurdle to her to seek help from the railway police force. There is no explanation in this regard. 19. PWs.1 and 2 are parents of the victim girl. They have stated about missing of PW3. They are hearsay witnesses. They had not seen accused taking PW3 from their custody. PW4 is said to have seen accused and PW3 together on 08.12.2015 around 10:15 am. He told this facts to PW1 after four to five days from the said date of incident when PW1 enquired with him regarding missing of his daughter. He further stated that PW1 enquired brother of the accused. The brother of the accused told him that his brother took PW3 to Bihar and also requested not to lodge the complaint against his - 14 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 brother, and he would bring her back from his native place. Looking to the entire evidence of PW4, it appears he is a planted witness. According to PW3, accused kidnapped her around 7:30 am and took her to his house and she was inside the house for about two to three days. PW4 says he saw the accused and PW3 at about 10.15 a.m., which is not probable. PW4 claims to be friend of PW1. PWs.1 and 2 says that they enquired about PW3 and searched her in their relatives’ house, as well as enquired with her friends as well as their friends. Toranagallu is a small village. In such circumstances it is difficult to believe that PW4 was unaware of the said fact of missing of PW3. 20. Another material witness is PW10, i.e., the medical officer, who clinically examined the victim. According to her evidence, on 09.01.2016 she examined the victim girl with the consent of her father. PW3 had no external injuries. Her hymen was torn and it was old. She collected certain articles for sending it to the FSL for - 15 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 chemical examination. She has also opined that “there is no recent sexual act on her” and she submitted a report in this regard as per Ex.P3. The medical evidence also do not support the case of the prosecution regarding forceful sexual intercourse on PW3. PW10 in the cross- examination admitted that when a girl puts her finger in the private parts, there is every possibility of tear of hymen. Such possibility cannot be ruled out. Moreover mere tear of hymen cannot be reason to believe that it was due to sexual act committed by the accused. There may be so many other reasons due to which hymen may tear. Therefore, evidence of PW10, does not support the case of prosecution. 21. The FSL report is also of no help to the case of prosecution. The incident is said to be taken place about a month prior to collecting of samples and sending it to FSL. Obviously there may not be clue from the said FSL materials to connect the accused with the guilt. PW13 and 14 are investigating officer. They have narrated the - 16 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 investigation done by them. However, their evidence is not corroborated by material witnesses. Mahazar witnesses have turned hostile and not supported the case of prosecution. 22. As already narrated above, material witnesses in this case is PWs.1, 2, 3, 10, 13 and 14. The evidences collected by the investigating officer are not sufficient to prove that the accused had committed alleged offences. Except self serving statement of PW3, there are no materials to show that accused kidnapped PW3. If really accused did rape her she should have stated these facts before the learned Magistrate while recording her statement under Section 164 of Cr.P.C. Therefore the contentions of accused that PW3 must have deposed before the Court about alleged rape and accused were as tutored by PWs.1 and 2, cannot be ruled out. 23. It is settled principle of law that even though the burden of disproving his innocence is on the accused as per Section 29 of the POCSO Act. But primary burden is - 17 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 on the prosecution to prove that the accused had committed the said offences. Ones the primary burden is proved by the prosecution then the next question arises regarding disproving of the same. There are no sufficient materials to believe that the accused had committed alleged offences. 24. Investigating officer has not collected school record to prove that PW3 did not attend her classes from 08.12.2015. Not collected materials to show that brother of accused had a quarter in the said premises. Investigating officer has not collected Railway ticket or its particulars to prove that both PW3 and accused together travelling from Toranagallu to native place of accused and their return. He has not collected any explanation as to why PW3 did not inform railway police or co-passengers of really whe was forcefully kidnapped. If accused raped her then at the time of taking her to his native place, she could not raised alarms. These facts create serious doubts on his case of prosecution. The evidence led by the - 18 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 prosecution is considered by the trial Court. The view of trial Court is also probable. We do not find any reasons to hold that accused had committed the offence. 25. The learned trial Judge discussed the facts in detail and rightly came to the conclusion that prosecution has failed to prove the guilt of accused much less beyond reasonable doubt. Therefore, there are no reasons to interfere in the findings of the trial Court. 26. For the aforesaid reasons, we answer point No.1 in the affirmative and proceed to pass the following: ORDER i. Appeal is dismissed. ii. The judgment dated 16.07.2021 in Special Case No.49/2016 passed by the learned I Addl. District and Sessions Judge, and the Special Judge under the Protection of Children from Sexual Offences Act, 2012, Ballari is confirmed. - 19 - NC: 2025:KHC-D:4484-DB CRL.A No. 100376 of 2022 iii. Send back TCR to the trail Court along with the copy of this judgment. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kgk/CT-AN List No.: 1 Sl No.: 21