- 1 - NC: 2025:KHC-D:1548 CRL.A No. 100218 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 100218 OF 2016 (C) BETWEEN: SRI. SHANUR MUGATASAB BASARIKATTI @ MUNIYAR, AGE: 22 YEARS, OCC: DRIVER, R/O: BAILUR, TAL: BAILHONGAL, DIST: BELAGAVI. …APPELLANT (BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE) AND: THE STATE OF KARNATAKA, THROUGH PSI KITTUR POLICE STATION, REPRESENTED BY ADDL. STATE PUBLIC PROSEUTOR, SPP OFFICE, HIGH COURT OF KARNATAKA, DHARWAD. …RESPONDENT (BY SRI. PRAVEENA Y.DEVAREDDIYAVARA, HCGP) THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C., SEEKING TO, SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 01/07/2016 PASSED BY SPECIAL COURT (POCSO AND SC/ST PREVENTION OF ATROCITY) AND III ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI IN SESSIONS CASE NO.89/2014. THIS APPEAL, COMING ON FOR ORDERS, 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: 2025.01.30 11:52:31 +0530 - 2 - NC: 2025:KHC-D:1548 CRL.A No. 100218 of 2016 ORAL JUDGMENT This appeal, filed under Section 374(2) of the Criminal Procedure Code (hereinafter referred to as “the Cr.P.C.”), is made by the appellant/accused, challenging the judgment of conviction and order of sentence, wherein the appellant was convicted for the offences punishable under Sections 342, 323, 376(2)(i), and 201 of the Indian Penal Code (hereinafter referred to as “the IPC”), and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”), and sentenced to undergo rigorous imprisonment for a period of 10 years. 2. The case of the prosecution is that, complainant minor daughter was mentally retarded girl and she was suffering from mental illness since she was 5 months old. The husband of the complainant P.W.-1 had gone to Maharashtra to earn livelihood three months ago. The accused was the neighbour and he was visiting the house of P.W.1. On 21.01.2014 at about 4.30 p.m. P.W.1 and her daughter were standing, accused came there and asked the victim to hand over his mobile at his home and P.W.1 went to her home. The victim did not return home even after half an hour and therefore, P.W.1 went in search of her daughter to the house of the present appellant. She went inside the house, and noticed that her daughter coming to her holding her under garments and on enquiry, her daughter revealed that the accused had raped her and P.W.1 also noticed the accused took to his heels after seeing her. - 3 - NC: 2025:KHC-D:1548 CRL.A No. 100218 of 2016 3. To prove its case, the prosecution examined P.Ws. 1 to 15, produced documents marked as Exs. P.1 to P.21, and identified material objects marked as M.O. Nos. 1 and 2. 4. The trial court, after appreciating the evidence on record and considering the arguments advanced by both parties, framed points for consideration and held as follows: “The prosecution has established the guilt of the accused beyond all reasonable doubt” and accordingly passed the impugned judgment of conviction and order of sentence. 5. Learned counsel for the appellant argued that the victim had passed away prior to the trial and, therefore, could not be examined. It was further contended that there was no corroborative evidence, including medical evidence, to substantiate the claim that the appellant/accused had sexually assaulted the victim. Thus, in the absence of substantial evidence, the impugned judgment of conviction and order of sentence was argued to be legally unsustainable. 6. In response, the learned Additional Government Advocate for the respondent-State contended that the medical records, coupled with the testimony of the victim’s mother, clearly establish that the appellant/accused had forcibly committed sexual intercourse with the victim on the said date. He further submitted that the impugned judgment of conviction and order of sentence required no interference and prayed for the dismissal of the appeal. - 4 - NC: 2025:KHC-D:1548 CRL.A No. 100218 of 2016 7. After carefully considering the arguments advanced by learned counsel for both parties and thoroughly reviewing the trial court records, the only point 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.” 8. P.W.1, the mother of the survivor, supported the case of the prosecution. During her cross-examination, she admitted that she had borrowed a sum of Rs. 4,000/- as a loan from the mother of the accused, which had not been repaid for the past three months. She further admitted that her daughter frequently visited the house of the accused and that, prior to the date of the incident, she was unaware of whether any similar incident had occurred. 9. P.Ws. 2 and 3, who were witnesses to the spot panchanama, were declared hostile, and nothing was elicited during their cross-examination to support the case of the prosecution. P.W.4, a witness to the seizure panchanama under which M.O. Nos. 1 (mobile phone) and the Compact Disk were recovered from the accused, also turned hostile, and no material supporting the prosecution’s case was brought out during his cross-examination. P.W.5, the teacher of the school where the survivor was studying, stated that the age of the victim at the time of the incident was 14 years. - 5 - NC: 2025:KHC-D:1548 CRL.A No. 100218 of 2016 10. P.W.6, the brother of the victim, stated that he was informed about the incident by P.W.1. He further admitted that, whenever the accused visited the house of the complainant, he never observed the accused looking at the survivor with any bad intention. Additionally, he admitted that the scribe of the complaint and its contents were prepared based on the instructions of the Circle Police Inspector. 11. P.W.9 is the person who accompanied the survivor for the X-ray examination. P.W.10 is the doctor who examined the survivor on 22.01.2014 and issued the medical certificate marked as Ex.P.15. She stated that there were no external injuries on the survivor, the hymen was intact, and there were no seminal stains on the items numbered 1 to 4, which were sent to the Forensic Science Laboratory for examination. 12. P.W.13 is the Investigating Officer who conducted the investigation and submitted the charge sheet. He has supported the case of the prosecution. The other witnesses are not material witnesses and are only official witnesses; therefore, their evidence does not require detailed consideration. The alleged incident took place on 22.01.2014, and the survivor was examined on the same day by P.W.10. 13. The prosecution alleges that the statement of the survivor was recorded under Section 164 of the Cr.P.C. During the trial, the survivor had passed away, and therefore, the learned Magistrate who recorded the statement under Section 164 of the Cr.P.C. was examined as P.W.14. P.W.14 supported the case of - 6 - NC: 2025:KHC-D:1548 CRL.A No. 100218 of 2016 the prosecution and, during cross-examination, stated that the survivor’s mother and daughter were present at the time of recording the statement, and the survivor reiterated the allegations made in the complaint. In the absence of any eyewitnesses to the incident, the medical evidence becomes relevant in determining whether the prosecution has established the guilt of the accused beyond all reasonable doubt. 14. PW 10 who examined the survivor on the same day, stated in her examination in chief that no external injuries were found on the body of the survivor and that there were no seminal stains on the items numbered 1 to 4, which were sent to the Forensic Science Laboratory. She further admitted that the hymen of the survivor was intact and not ruptured. Thus, there is no medical evidence to substantiate that the survivor was subjected to sexual intercourse by the accused. 15. The mother of the survivor, examined as P.W.1, stated that when her daughter did not return home, she went to the house of the accused. Upon entering, she found her daughter crying and holding undergarments in her hands, while the accused fled from the spot. However, she did not witness the alleged sexual assault by the accused. 16. During her cross-examination, P.W.1 categorically admitted that she had borrowed a loan of Rs. 4,000/- from the mother of the accused, which had not been repaid. Consequently, the testimony of P.W.1, in the absence of any medical evidence to substantiate the allegations against the accused, cannot be - 7 - NC: 2025:KHC-D:1548 CRL.A No. 100218 of 2016 deemed credible or trustworthy. Therefore, in the absence of corroborative material in the form of medical evidence, apart from the complainant’s allegations, the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. 17. The brother of the survivor was examined as P.W.6. During his cross-examination, he admitted that the scribe of the complaint and its contents were prepared based on the instructions of the Circle Police Inspector, and not on the instructions of the complainant. This raises doubts as to whether the survivor was subjected to forcible sexual assault by the accused. Therefore, the appellant/accused cannot be convicted solely on the basis of suspicions, especially in the absence of any corroborative material. Accordingly, I pass the following: ORDER i. The appeal is allowed. ii. The impugned judgment of conviction and the order of sentence dated 01.07.2016 passed by the III Additional District and Sessions Judge, Belagavi, in S.C.No.89/2014 is hereby set aside. iii. Appellant/accused is acquitted for the aforesaid offences. iv. Bail bonds if any stands canceled. Sd/- (HEMANT CHANDANGOUDAR) JUDGE AC Ct:vh/List No.: 1 Sl No.: 35