- 1 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JULY, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA CRIMINAL APPEAL NO. 432 OF 2021 (C) BETWEEN: RAMESH @ PAPANNI, AGED ABOUT 20 YEARS, S/O MUDDAIAH, R/AT YASHAWANTHAPURA VILLAGE, H.D. KOTE TALUK, MYSURU DISTRICT - 571 114 …APPELLANT (BY SRI. P. NATARAJU, ADVOCATE) AND: STATE OF KARNATAKA BY SARAGURU POLICE STATION, MYSURU DISTRICT, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU - 560 001 …RESPONDENT (BY SMT. RASHMI JADHAV, ADDL.S.P.P.) THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 29.01.2021 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, MYSURU IN S.C.NO.135/2018 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(2)(F) OF IPC AND SECTION 5(N)(M) AND 6 OF POCSO ACT. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 10 YEARS AND IS LIABLE TO PAY A FINE OF RS.50,000/- AND IN DEFAULT OF PAYMENT OF FINE, HE Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE P/U/S 376(2)(F) OF IPC AND SECTION 6 OF POCSO ACT. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED. THIS CRL.A, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT The appellant being the child in conflict with law tried in SC.No.135 of 2018 on the file of the learned Principal District and Sessions Judge at Mysuru, is impugning the judgment of conviction and order of sentence dated 29.01.2021, convicting him for the offences punishable under Section 376(2)(f) of Indian Penal Code (for short 'the IPC') and Section 6 of Protection of Children from Sexual Offences Act (for short, 'the POCSO Act'), sentencing to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.50,000/- for the offences punishable under Section 376(2)(f) of IPC and Section 6 of POCSO Act, with default sentences. 2. Brief facts of the case as made out by the prosecution are that, Crime No.87 of 2016 of Saraguru Police Station came to be registered against the appellant for the offences - 3 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 punishable under Section 376(2)(f) and (i) of IPC and under Section 5(m) and (n) read with Section 6 of the POCSO Act. The appellant was the juvenile and thus he was the child in conflict with law. Initially, he was produced before the Juvenile Justice Board, which passed the order dated 24.04.2018 under Section 18(3) of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the JJ Act') and the case was transferred to the Children Court i.e. Trial Court. After being satisfied with the mental status of the appellant, the Trial Court proceeded to try him for the above said offences. 3. It is the contention of the prosecution that, the accused is a neighbour of the victim who was aged 6 years on 12.03.2016. When the victim girl had gone to the house of the appellant for watching TV, he lured her, made her to lay down on the cot, and committed penetrative sexual assault by touching her private part and inserting his fingers in the vagina of the child. Thus, he has committed the offence under Section 376(2)(f) of IPC and Section 5(m) and (n) punishable under Section 6 of the POCSO Act. On passing of the order under Section 18(3) of the J.J Act by the Juvenile Justice Board, the - 4 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 accused was produced before the Trial Court. He pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to 14 and got marked Exs.P1 to 18 in support of its contention. The accused has denied all the incriminating materials available on record, but has not chosen to lead any evidence in support of his defence. The Trial Court, after taking into consideration all these materials on record came to the conclusion that, the prosecution is successful in proving the guilt of the accused and accordingly passed the impugned judgment of conviction and order of sentence. Being aggrieved by the same, the appellant is before this Court. 4. Heard Sri. P.Nataraju, learned counsel for the appellant and Smt.Rashmi Jadhav, learned Additional SPP for the respondent-State. Perused the materials on record including the Trial Court records. 5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is as under: "Whether the appellant has made out any grounds to interfere with the impugned judgment - 5 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 of conviction and order of sentence passed by the Trial Court?" My answer to the above point is 'partly in the affirmative' for the following: REASONS 6. It is the specific contention of the prosecution that the accused being the neighbour of the victim girl lured her and took her to his house under the pretext of watching TV, and committed penetrative sexual assault by touching her private part and inserting his fingers in the vagina. 7. PW.1 who is the mother of the victim, lodged the first information as per Ex.P1. The informant has stated that she has two daughters; the first daughter being the victim herein, is aged 6 years and was studying in first standard, and the second daughter, aged 4 years was attending Anganawadi. Both of them were going to the house of the accused which is situated nearby, for watching TV. On 24.03.2016, the second daughter of the informant came and complained about the sexual act committed by the appellant herein against her and in that regard, a complaint came to be filed. When they were - 6 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 discussing about filing of the complaint against the accused in the house, the victim in the present case i.e. eldest daughter of the informant informed that, about 15 days earlier when she had gone to the house of the accused for watching TV he had committed similar offence and caused pain to her private part. The accused threatened that, if she informs this fact to anybody else, he will not allow her to watch TV. When this fact came to the knowledge of the informant, she filed the first information on 24.08.2016. The victim girl was subjected to medical examination by PW.7. She has issued Ex.P7 stating that, the child was examined with the history of sexual assault, and the injuries were found on her private part. However, hymen was intact. But, she opined that sexual assault cannot be ruled out, although the result of examination is in the negative. 8. PW.1 further states that the child was taken to the Court and the learned Magistrate examined her. The child has given the statement as per Ex.P2. This witness was cross- examined by the learned counsel for the accused. Even though - 7 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 she was subjected for cross-examination at length, nothing has been elicited from this witness to disbelieve her version. 9. PW.2 is the victim girl, who was aged 9 years when she was examined before the Trial Court. Being satisfied with the capacity of the witness to understand the questions put to her and to give rational answers, the witness was examined as PW.2. She has stated that the accused is her neighbour and she used to go to his house to watch TV. At that time, the accused removed her clothes and used to touch her private part by inserting his fingers into her vagina and he was threatening that, if this fact is informed to anybody else, she will not be allowed to watch T.V. 10. The witness stated that she came to know that, the accused has committed similar acts with her sister and she informed her mother and thereafter she was taken to the hospital. She has stated that she has given the statement before the learned Magistrate as per Ex.P2. This witness was cross-examined by the learned counsel for the accused at length. Except denying the statement made by the witness in - 8 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 the chief-examination, nothing has been elicited from the witness. 11. PW.3 is the father of the victim girl. He has also fully supported the case of the prosecution. He denied the suggestion that, no such sexual assault was committed on his daughter and that for the purpose of claiming compensation, a false complaint came to be filed. PW.4 is the witness to the mahazar drawn in the house of the accused as per Ex.P3 and he has fully supported the case of the prosecution. PW.5 is the neighbour who has not supported the case of the prosecution. PW.6 is the Junior Engineer who has drawn the spot sketch as per Ex.P5. 12. PW.7 is the Doctor who examined the victim girl. This witness has categorically stated that on enquiry with the child, in her own language, the child informed that, the accused had touched her private part and later, she complained of burning sensation in her genital area. The witness states that there were no external injuries and the hymen was intact. She issued Ex.P7 stating that the act complained of cannot be ruled out. This witness was cross-examined by the learned counsel - 9 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 for the accused, who suggested that in case of forcible sexual violence, normally there would be injuries on the person of the victim girl. She states that in case of forcible penetrative sexual assault, hymen would be ruptured. 13. It is pertinent to note that, it is not the case of the prosecution that the accused had committed forcible penetrative sexual assault or committed rape on the minor girl. It is complained that the accused had removed clothes of the victim, touched her private part by inserting his fingers into her vagina. Under such circumstances, it cannot be said that the victim could sustained any injuries. However, the victim girl stated that from the acts of the accused she was experiencing burning sensation in her vagina. There is no reason to disbelieve her version. 14. PW.8 is the doctor who examined the appellant and issued Ex.P8. He has not noticed any injuries present over his body and there was nothing to suggest that he is incapable of committing any sexual intercourse. PW.9 is the Panchayat Development Officer who issued Exs.P9 to 11 pertaining to the - 10 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 house of the accused to prove that he was the neighbour to the victim girl. 15. PW.10 is the teacher who issued Exs.P12 to 15 to prove the age of the victim girl. PW.11 is the Police Constable, who accompanied PW.6 for the purpose of drawing the spot sketch. PW.12 is the Police Inspector who received the first information from PW.1 and registered the FIR as per Ex.P16. PW.13 is the Police Inspector who conducted further investigation and filed the charge sheet. PW.14 is also the Investigating Officer who conducted major portion of the investigation and has deposed about the same. Even though all these witnesses were cross-examined at length, nothing has been elicited from them to disbelieve their versions. 16. From the oral and documentary evidence referred to above, it is clear that PW.2 being the victim girl and PWs.1 and 3 being the mother and father of the victim girl have consistently deposed regarding the act committed by the accused. The evidence of PW.2 is quite natural. Ex.P2 is the statement of the victim recorded by the learned Magistrate under Section 164 of Cr.PC. Immediately after registration of - 11 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 the complaint, the victim girl has consistently stated about act committed by the accused and I do not find any reason to reject the case made out by the prosecution. From the materials on record, it is clear that the accused was the neighbour of the victim girl. He took advantage of the situation that he is having a T.V. in his house and the victim girl used to visit his house for watching T.V. and committed sexual assault by removing her clothes and touching the private part and also inserting his fingers into her vagina. Thereby, committed the offence as defined under Section 5(m) punishable under section 6 of POCSO Act. Therefore, he is liable for conviction. 17. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has convicted the accused for the offence punishable under Section 376(2)(f) of IPC and Section 6 of POCSO Act. From the materials on record, it is clear that the accused was not the relative of the victim girl, he was only the neighbour. Under such circumstances, Section 376(2)(f) of IPC could not have been invoked by the Trial Court. However, it has not imposed any separate sentence under Section 376(2)(f), but he was - 12 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 sentenced to undergo imprisonment for ten years as provided under Section 6 of POCSO Act. I do not find any reason to interfere with the impugned judgment of conviction and order of sentence for the offence under Section 5(m) punishable under Section 6 of POCSO Act. However, conviction for the offence under Section 376(2)(f) is liable to be set aside. 18. The materials on record disclose that the accused is from poor status. The Trial Court has imposed fine of Rs.50,000/-. Looking to the financial status of the accused and also the fact that he is in custody since his apprehension at the first instance, imposition of fine of Rs.50,000/- is on higher side. Hence, the judgment of conviction and order or sentence passed by the Trial Court is to be interfered with to that extent. Accordingly, I answer the above point partly in the affirmative and proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment of conviction dated 29.01.2021 passed in Sessions Case No.135/2018 by the learned Principal District and Sessions Judge at - 13 - HC-KAR NC: 2025:KHC:23831 CRL.A No. 432 of 2021 Mysuru, is hereby confirmed insofar as it relates to Section 5(m) punishable under Section 6 of the POCSO Act. iii. The judgment of conviction and order of sentence passed by the Trial Court for the offence under Section 376(2)(f) of IPC, is set aside. iv. The order of sentence imposed by the Trial Court for the offence under Section 5(m) punishable under Section 6 of the POCSO Act is modified as under: (a). The appellant is sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.2,000/-, in default of payment of fine, he shall undergo further imprisonment for a period of three months. Registry to send back the Trial Court records along with copy of this judgment to the Trial Court, for information and necessary action i.e., to issue conviction warrant, if not already issued. Sd/- (M G UMA) JUDGE MKM CT:VS List No.: 1 Sl No.: 13