- 1 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF JULY, 2025 PRESENT THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO.100085 OF 2024 (C) BETWEEN: SABU S/O. PARAGOND JAKATI @ KATAGERI, AGE: 38 YEARS, OCC. LABOURER, R/O. BANDIGAMI VILLAGE, RABAKAVI-BANAHATTI TALUK, BAGALKOTE DISTRICT. …APPELLANT (BY SRI. N.G. RASALKAR, ADVOCATE) AND: THE STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, THROUGH BANAHATTI POLICE STATION, BAGALKOTE DISTRICT. …RESPONDENT (BY SRI. A.M. GUNDAWADE, ADDITIONAL S.P.P) THIS CRIMINAL PETITION IS FILED UNDER SECTION 374(2) OF CR.P.C. SEEKING TO ALLOW THE APPEAL SETTING ASIDE THE JUDGMENT PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC-1, BAGALKOTE IN SPECIAL CASE NO.95/2018 DATED 11.07.2023 AND CONVICTION ORDER DATED 14.07.2023 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 363, 404, AND 201 OF IPC AND SECTION 06 OF POCSO ACT AND CONSEQUENTLY, SET ASIDE IMPRISONMENT IMPOSED BY THE TRIAL COURT AS SUBSTANTIAL IMPRISONMENT AND ALSO LEVYING FINE UNDER AFORESAID SECTIONS AND ALSO SET ASIDE IMPRISONMENT YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 WHICH ACCUSED IS REQUIRED TO UNDERGO IN DEFAULT OF PAYMENT OF FINE. THIS APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) This appeal is directed against the judgment of conviction dated 11.07.2023 and order of sentence dated 14.07.2023 passed in Special Case No.95/2018 by the Addl. District and Sessions Judge-FTSC-1, Bagalkote (hereinafter referred to as the ‘learned Special Judge’), whereby the appellant/accused was convicted for the offences punishable under Sections 363, 377, 302, 201, 404 of IPC and Sections 6 and 10 of the Protection Of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO ACT’ for short) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 3 months for the offence punishable under Section 302 of IPC; he was sentenced to undergo rigorous imprisonment for a period of 20 years and to - 3 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 pay a fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 3 months for the offence punishable under Section 6 of the POCSO Act; he was also sentenced to undergo rigorous imprisonment for a period of 4 years and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 3 months for the offence punishable under Section 363 of IPC; he was sentenced to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 3 months for the offence punishable under Section 404 of IPC; he was sentenced to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 3 months for the offence punishable under Section 201 of IPC. It was directed that all the substantive sentences shall run concurrently. 2. Briefly stated, the case of the prosecution was as follows: - 4 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 The deceased, a boy aged about 4 years was the son of complainant-PW.1-Yallappa. On 03.08.2018 at about 04:00 p.m., when the deceased was returning from Anganawadi in Bandigani village situated within the limits of respondent-Police, the appellant/accused kidnapped him to the land bearing R.S.No.57/3B belonging to CW.15-Hanmant Gurappa Tavanidhi where sugarcane crop was grown. There, the accused undressed the victim boy and had forcible anal intercourse with him. When the victim raised alarm, the accused murdered him by slitting his neck with M.O.1-blade and caused injuries on the body and cut his penis. He also removed the silver waist thread and golden earrings worn by the deceased i.e., M.Os.7 and 8 and fled away from the spot. Since the victim boy did not return home from Anganawadi after 4:00 p.m., PW.1 went to the Anganawadi and searched at other places. At that time, CWs.10 and 11 informed him that they saw accused carrying the victim boy and proceeding towards Vittala Mandira at about 4:30 p.m. Later, PW.1 saw the shorts of deceased in the field of CW.15 and on further search, found the body of deceased with cut injuries all over the body. Hence, he lodged a complaint - 5 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 before the respondent-Police on the same day i.e., 03.08.2018 as per Ex.P1. 3. On the strength of Ex.P1, FIR was registered against accused in Crime No.141/2018 for the offence punishable under Section 302 of IPC dated 03.08.2018 as per Ex.P26. Subsequently, PW.17-Investigation Officer conducted spot mahazar, inquest panchanama, recorded the statement of witnesses and arrested the accused on 09.08.2018 and on obtaining necessary documents from the concerned authorities, laid charge-sheet against accused before the learned Special Judge for the offences punishable under Sections 363, 377, 302, 201, 404 of IPC and Sections 6 and 10 of the POCSO Act. 4. After taking cognizance of the offence, the learned Special Judge framed charges against the accused for the aforementioned offences and the same was read over to him. The accused denied the charges leveled against him and claimed to be tried. 5. In order to prove the charges leveled against accused, the prosecution examined 17 witnesses as PW.1 to - 6 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 PW.17, marked 33 documents as Ex.P1 to Ex.P33 and identified 13 material objects as M.O.1 to M.O.13. 6. On completion of the prosecution evidence, the learned Special Judge read over the incriminating evidence of material witnesses to the accused as stipulated in Section 313 of Cr.P.C. However, he refuted the same and claimed that he was falsely implicated. 7. After assessing the oral and documentary evidence placed before the Special Court, the learned Special Judge convicted the appellant/accused for the charges leveled against him and sentenced him as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal. 8. We have heard the learned counsel Sri. S.D. Babladi for the appellant and learned Addl. State Public Prosecutor Sri. A.M. Gundawade for the respondent-State. 9. The primary contention of the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the Sessions Court suffers from perversity and illegality. The learned Sessions Judge has grossly erred in - 7 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 convicting the appellant/accused without appreciating the evidence in the right perspective. He contended that the case of prosecution rested on circumstantial evidence and the prosecution failed to prove the charges against the accused by connecting the links in the chain of circumstance with cogent evidence. According to him, as per the complaint lodged by PW.1 on the date of incident, CWs.10 and 11 informed him that the accused was carrying the deceased boy at about 4:30 p.m. However, the prosecution did not examine both these witnesses. Further, the Doctor who conducted autopsy on the body of deceased did not state about the anal intercourse committed on the deceased boy. Hence, the prosecution failed to prove the offence punishable under Section 377 of IPC or Sections 6 and 10 of the POCSO Act. He further contended, the learned Special Judge while convicting the accused, significantly relied on the evidence of PWs.4, 6, 7 and 9. The statement of PWs.4, 6 and 7 was recorded on 04.08.2018 i.e., the day following the incident. Hence, there is a delay in recording their statement. According to the learned counsel, the evidence of PW.7 before whom the accused allegedly made an extra judicial confession cannot be relied, as he partly supported the case of - 8 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 prosecution. Further, PW.9 is a child witness and his evidence also cannot be relied without proper corroboration. He contended that the prosecution failed to prove the purchase of blade-M.O.1 by the accused on the date of incident in the shop of PW.8, since the said witness turned hostile to the prosecution case. He further contended, there is a discrepancy in the timings stated by PWs.4, 6, and 9 about the accused carrying the deceased boy on the date of incident. In such circumstance, the prosecution failed to prove the charges leveled against the accused beyond all reasonable doubt. Accordingly, he prays to allow the appeal. 10. Per contra, the learned Addl. SPP for the respondent-State contended, the judgment under this appeal neither suffers from perversity nor illegality as the learned Sessions Judge has meticulously examined the evidence on record and passed a well-reasoned judgment which does not call for any interference. He submitted, the evidence of PWs.4, 6, 7 and 9 categorically established the guilt of accused beyond all reasonable doubt. According to learned Addl. SPP, PWs.4 and 6 clearly stated in their evidence that on the date of - 9 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 incident, the accused was carrying the victim boy towards Vittala Mandira. Further, the accused made an extra judicial confession with PW.7-the relative of accused on the next day of incident and he supported the case of prosecution. PW.9-the child who was attending Anganawadi with the deceased boy clearly deposed that on the date of incident, he saw the accused carrying the deceased towards Vittala Mandira. Further, the prosecution also proved the other circumstance i.e., recovery of M.Os.1, 7 and 8 at the instance of accused under mahazar-Ex.P16. PW.5 is the panch witness for the said mahazar and supported the case of prosecution. Further, the evidence of Doctor who conducted the autopsy on the body of deceased boy clearly reveals that anus was dilated and reason for the same was forcible sexual intercourse on him. In such circumstance, the prosecution proved the charges leveled against accused beyond all reasonable doubt. Accordingly, he prays to dismiss the appeal. 11. Having heard the learned counsel for the respective parties and on perusing the entire evidence on record including - 10 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 the impugned judgment, the following points arise for our consideration: 1. Whether the judgment under this appeal suffers from either perversity or illegality? 2. Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offences punishable under Sections 363, 377, 302, 201, 404 of IPC and Sections 6 and 10 of the POCSO Act? 12. In order to prove the homicidal death of deceased boy, the prosecution predominantly relied on the evidence of PW.13-Doctor who conducted autopsy on the body of deceased boy and postmortem report as per Ex.P20. On careful perusal of Ex.P20, PW.13 opined that the cause of death is due to ‘severe haemorrhage, hypovolumic shock and death secondary to injury to major vessel in the neck’. He also stated, all the injuries sustained by the deceased boy were ante-mortem in nature. Further, the prosecution also relied on Ex.P10-inquest panchanama drawn on the body of deceased by PW.17- Investigating Officer. The same was marked with the consent of defence counsel. Hence, on a collective reading of the evidence - 11 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 of PWs.13 and 17 coupled with Exs.P20 and P10, we are of the view that the prosecution proved the homicidal death of deceased. Even otherwise, the defence did not seriously dispute the homicidal death of deceased. 13. To connect the accused with the homicidal death of deceased, the prosecution significantly relied on the evidence of PWs.1, 4, 7, 9, 10 and PW.17-Investigation Officer. On a careful examination of the evidence of these witnesses, PW.1 is father of deceased, who set the criminal law into motion by lodging complaint-Ex.P1 soon after the incident. According to him, on 03.08.2018, his son-deceased went to Anganawadi and did not return home after 4:00 p.m. As such, he visited Anganawadi and other places in search of his son. At that time, he came to know through CWs.10 and 11 that the accused was carrying the deceased at about 04:30 p.m. Later, he found the body of deceased in the field of CW.15. Hence, he lodged a complaint against the accused. In his evidence, he reiterated the averments of his complaint. Though CWs.10 and 11 were not examined by the prosecution, the prosecution examined PWs.4 and 6 the villagers who also saw the accused carrying the deceased on 03.08.2018. The statement of both these - 12 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 witnesses was recorded on the next day of incident i.e., 04.08.2018. As can be seen from records, the FIR was registered at about 08:10 p.m. on 03.08.2018 and on the very next day i.e., on 04.08.2018, the statement of PWs.4 and 6 was recorded by PW.17. In such circumstance, it cannot be construed that there is a delay in recording the statement of the witnesses and non-examination of CWs.10 and 11 is not fatal to the prosecution case. On examination of the evidence of PWs.4 and 6, they categorically stated that the accused was carrying the deceased on 03.08.2018 towards Vittala Mandira. Their evidence corroborates the testimony of PW.9-child witness, who also stated that the accused took the deceased from Anganawadi towards Vittala temple by offering a chocolate. No doubt, there is a discrepancy in the timings stated by these witnesses, however that itself does not go to the root of the prosecution case, since the timings stated by PWs.1, 9 and 10-the attendant at Anganawadi corroborates each other. Further, the prosecution also relied on the evidence of PW.7-the relative of accused before whom the accused made an extra judicial confession that he murdered the deceased. PW.7 being the relative of accused supported the case of - 13 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 prosecution. Additionally, the evidence of PW.10-attendant at Anganawadi reveals that on the date of incident, the deceased boy was present in the Anganawadi and at about 04:00 p.m., he left the Anganawadi. This evidence of PW.10 clearly corroborates the testimony of PW.9-the child witness who attended the Anganawadi with deceased boy on the date of incident and the evidence of PW.1-the father of deceased boy. The evidence of all these witnesses is consistent and corroborates with each other, except a few minor contradictions, which do not go to the root of the prosecution case. It is argued by the learned counsel for the accused, in the postmortem report-Ex.P20, there is no mention of anal intercourse committed on the deceased boy. On careful perusal of the postmortem report, PW.13-Doctor has mentioned about the dilated anal opening with passage of stool. Subsequently, the Investigation Officer obtained the opinion of the Doctor about the anal dilation. PW.13 gave his opinion as per Ex.P24, it could be possible that anal dilation can happen after sexual assault. Further, on perusal of inquest panchanama, it is stated in Column No.7 that, ‘anus of the deceased dilated’ and there is a strong suspicion of sexual assault on the deceased boy. In - 14 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 such circumstance, in our considered view, the prosecution has proved the forcible anal intercourse on the deceased boy by the accused. 14. Further, the prosecution also proved the recovery of blade-M.O.1 used for the commission of crime by the accused and the silver thread and gold earrings of the deceased namely M.Os.7 and 8 at the instance of accused under a recovery mahazar-Ex.P16. PW.5 is the witness for the same and he supported the case of prosecution. The Investigation Officer also obtained an opinion of PW.13-Doctor as per Ex.P-25. Whether the injuries mentioned in the postmortem report of the deceased would be caused with M.O.1-blade. Moreover, the prosecution also sent M.Os.1, 7 and 8 to FSL for chemical examination and the Scientific Officer gave his report that those articles were stained with human blood of ‘O’ group as per Ex.P33. It is pertinent to note, the blood group of deceased was also ‘O’ group as per the postmortem report. In such circumstance, the prosecution also proved the recovery of weapon-M.O.1 and silver waist thread and two gold earrings of deceased-M.Os.7 and 8 at the instance of accused. - 15 - HC-KAR NC: 2025:KHC-D:9216-DB CRL.A No. 100085 of 2024 15. On overall appreciation of the evidence on record, we are of the view that the prosecution has proved the charges leveled against the accused beyond all reasonable doubt. Hence, interference in the impugned judgment is not warranted. Accordingly, we answer point No.1 raised above in the ‘negative’ and point No.2 in the ‘affirmative’ and proceed to pass the following: ORDER The Criminal Appeal No.100085/2024 is hereby dismissed. Sd/- (R.NATARAJ) JUDGE Sd/- (RAJESH RAI K) JUDGE HKV CT:PA LIST NO.: 2 SL NO.: 2