- 1 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 29TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200105 OF 2022 (374(Cr.PC)/415(BNSS)) BETWEEN SHRI.RAHUL GOSTE S/O SHRI.AMAR GOSTE AKA GUTTE AGED ABOUT 29 YEARS, OCC.LABOUR WORK R/O SHIVAJI NAGAR, PARULI BHEED DIST. MAHARASTRA STATE – 431 515 ...APPELLANT (BY SRI.B.C.JAKA, ADVOCATE) AND 1. THE STATE OF KARNATAKA THROUGH DEVARAHIPPARAGI POLICE STATION DEVARAHIPPARGI, DIST.VIJAYAPURA – 586 101 NOW REP. BY ADDL. SPP, HIGH COURT OF KARNATAKA, KALABURAGI BENCH – 585 107 2. RAHUTAPPA HALLADMANI S/O JALAPPA, AGED ABOUT 45 YEARS OCC.COOLIE WORK R/AT PADAGAPUR TQ.DEVARAHIPPARGI, DIST. VIJAYAPURA – 586 101 …RESPONDENTS (BY SRI.GOPAL KRISHNA YADAV, HCGP FOR R1; SRI.RAJESH DODDAMANI, ADV. FOR AMICUS CURIAE FOR R2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 23.08.2021 PASSED BY THE Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 HONOURABLE ADDITIONAL SESSIONS JUDGE FTSC-I (POCSO) AT VIJAYAPUR, IN SPL.CASE (POCSO) NO.36/2018 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 363, 344 OF IPC AND UNDER SECTION 5(1) AND 6 OF POCSO ACT. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01.04.2025 AT KALABURAGI BENCH, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S RACHAIAH CAV JUDGMENT (PER: HON'BLE MR. JUSTICE S RACHAIAH) This Criminal Appeal has been filed by the appellant being aggrieved by the judgment of conviction and order on sentence dated 23.08.2021 in Special Case (POCSO) No.36/2018 on the file of the Additional Sessions Judge FTSC-I, POCSO, Vijayapura. Wherein, the Trial Court convicted the accused for the offence punishable under Section 363, 344 of Indian Penal Code and Sections 5(1) and (6) of the POCSO Act. 2. The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience. - 3 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 Factual matrix of the case: 3. It is the case of the prosecution that the complainant lodges a complaint stating that on 02.07.2018 at about 19.00 hours, he lodges a complaint stating that the family of the informant being a laborer had been to Islampur in the state of Maharashtra for their livelihood. On 11.06.2018, it is stated that the victim girl went out of the house in the morning around about 11.30 A.M., however, she did not return even till evening. The family including the wife of the informant and others started searching the whereabouts of the victim. However, they did not get any informations. Hence, he lodges a complaint on 02.07.2018. 4. The Respondent-Police have registered a case in Crime No.79/2018 as a missing complaint and took up for investigation. 5. The accused and the victim were traced at Paruli, State of Maharashtra on 31.07.2018. The victim was rescued and accused was taken to custody. The statement of the victim girl was recorded. As per the said statement. The facts of the case has been unfolded in such a way that, when she had gone - 4 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 out of the house to attend the nature call around 11.00 A.M, she was kidnapped by the accused in the jeep and took her to Pune. There she stayed for 4 days. Thereafter, she learnt that her father was searching her. Therefore, she was brought back to her native and her statement was recorded by the Magistrate under Section 164, Cr.P.C. 6. The respondent-Police have conducted the investigation and submitted the charge-sheet. 7. To prove the case of the prosecution the prosecution examined 20 witnesses and P.W.1 to P.W.20 and got marked 19 documents as Ex-P.1 to P.19. The Trial Court recorded the conviction for the offence punishable under Section stated supra. 8. Heard Sri.B.C.Jaka, learned counsel for the appellant and Sri.Gopal Krishna Yadav, learned High Court Government Pleader for respondent No.1 and Sri. Rajesh Doddamani for respondent No.2. 9. It is the submission of the learned counsel for the appellant that the impugned judgment of conviction and order - 5 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 on sentence passed by the Trial Court is against to facts and law. Therefore, the same is liable to be set aside. 10. The Trial Court while considering the evidence of the victim has failed to consider the contradictions in respect of statement of the victim. The victim in her statement made before the learned Magistrate under Section 164 of Cr.P.C stated that four persons took her to Pune and stayed there for four days and returned to the Devarahipparagi Police Station. However, in her evidence she improved her evidence and stated that she had been subjected to rape in Pune. The said improvement ought not to have been considered by the Trial Court while appreciating the evidence. 11. It is further submitted that the victim had been subjected to medical examination on 01.08.2018. There she had further improved her version stating that she voluntarily undergone sexual intercourse and stayed along with accused for a month at different places. The Doctor submitted her report as per Ex-P.16, opined that there is no recent sexual assault. Such being the fact, the Trial court ought not to have recorded the conviction. However, the Trial Court passed the impugned judgment which is liable to be set aside. - 6 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 12. Per Contra, learned High Court Government Pleader, vehemently justified the judgment of conviction passed by the Trial Court and submitted the evidence of victim and other witnesses that the victim had been abducted and raped. 13. It is further submitted that the Doctor who conducted examination on the victim submitted her report as per Ex-P.16 and opined that the victim had undergone sexual assault on several occasions. Merely because as on the date of examination or its previous date she had not been subjected to sexual assault that does not mean that victim has not at all undergone sexual assault. The Trial Court has arrived at a conclusion and opined that the accused found guilty for the offences stated supra. Therefore, the said conviction has to be upheld and the appeal has to be dismissed. 14. Having heard learned counsels for the respective parties and also perused the findings of Trial Court in recording the conviction. It is appropriate to refer the evidence of all the witnesses who are considered as material witnesses. - 7 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 15. The case of the prosecution is that the accused has kidnapped the victim and took her to Pune stayed there for three to four days and committed rape on her on different occasions. 16. P.W.1, being a complainant and also father of the victim has stated that his daughter had been kidnapped by the accused and he is a hear-say witness. 17. P.W.2 being a victim has stated in her evidence that the accused induced her and kidnapped her by saying that he would marry her. Both went to Vijayapura by bus. Thereafter, they went to Pune and stayed there for four days. During the stay in the said Pune, she is stated to have been subjected to sexual assault. Further, she stated that after fifteen to twenty days the Police had traced them and brought them to Devarahipparagi Police Station. She further stated that she showed the place where she had been confined at Pune and spot panchanama has been drawn by the Police and the same has been marked as Ex-P.5. However, in her statement made before the learned Magistrate, she stated that she was kidnapped by four persons in a Jeep. Further, she made a statement before the Doctor stating that she voluntarily - 8 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 consented for sexual assault and stayed along with accused for almost one month and later she came to Devarahipparagi Police Station. On considering the inconsistencies in the evidence of P.W.2, she cannot be considered as “Sterling Witness”. However, the Trial Court considering her evidence by ignoring the inconsistencies, which are material contradictions and recorded the conviction, which is improper. 18. Assuming that her statement made before the learned Magistrate is true. The Investigating Officer ought to have made all the four persons as accused in this case. The owner of the house in which she was confined had also to be made as either witness or accused. The said aspects is absent in this case. The entire case is based on the statement of the victim. Even the evidence of the Doctor – P.W.16, who conducted examination of the victim would indicate that there was no recent sexual intercourse. 19. The victim - P.W.2, stated in her evidence that she had shown the place where she had been confined in Pune. Ex- P.5 is the place where she is stated to have been subjected to rape. P.W.6 is the witness who is said to be the witness to Ex- P.5. According to P.W.6 the place of which the P.W.2 had - 9 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 shown is situated near Bigavane Village, Hindapura Taluk, Pune District, Maharashtra State. It is an admitted fact that victim along with her father were working in the same Brick Kiln. 20. Having considered the facts and circumstances of the case, I am of the considered opinion that the findings of the Trial Court in recording the conviction in my considered view are not proper and appropriate. Therefore, the same is liable to be set aside. 21. In the light of the observations made above, I proceed to pass the following: ORDER i. The Criminal Appeal is allowed. ii. The judgment of conviction and order on sentence dated 23.08.2021 in Spl.Case (POCSO) No.36/2018, on the file of the Addl. Sessions Judge, FTSC-I (POCSO), Vijayapura is set aside. iii. The appellant/accused is acquitted for the offences punishable under Sections 363 and 344 of IPC and - 10 - HC-KAR NC: 2025:KHC-K:4280 CRL.A No. 200105 of 2022 Sections 5(1) and punishable under Sec.6 of the POCSO Act. iv. Bail bonds executed, if any, stands cancelled. Sd/- (S RACHAIAH) JUDGE NM List No.: 19 Sl No.: 1