- 1 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200124 OF 2017 (374(Cr.PC)/415(BNSS)) BETWEEN GOUTAM @ GOUTAMBUDDHA S/O SHAMRAO MADAKI AGED 21 YEARS OCC.P PUMP OPERATOR R/O TENGLI VILLAGE TQ.CHITTAPUR KALABURAGI – 585 221 ...APPELLANT (BY SRI.NANDKISHORE BOOB, ADVOCATE) AND 1. THE STATE OF KARNATAKA THROUGH KALAGI POLICE STATION DIST. KALABURAGI, REP. BY ADDL. STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA KALABURAGI BENCH 2. SHAM RAO, S/O BASAPPA MADDALI AGED 40 YEARS OCC. LABOUR R/O TENGALI TALUK CHITTAPUR DIST KALABURAGI – 585 317 …RESPONDENTS (BY SRI.GOPAL KRISHNA YADAV, HCGP R2 SERVED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 23 AND 31.08.2017 PASSED BY II ADDITIONAL SESSION JUDGE KALABURAGI IN SPL.CASE (POCSO) 9/2015 ACQUITTING THE Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 366, 376(2)(i) OF IPC AND SECTION 4 OF POCSO ACT. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.03.2025 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) 1. This appeal is filed by the appellant being aggrieved by the judgment of conviction dated 23.08.2017 and order on sentence dated 31.08.2017 in Special Case (POCSO) No.9/2015 on the file of the II Additional Sessions Judge, Kalaburagi, wherein the accused has been convicted for the offences punishable under Sections 366 and 376(2)(i) of IPC and Section 4 of POCSO Act, 2012. 2. For the sake of convenience, the rankings of the parties would be henceforth referred to as per their rankings before the trial Court. - 3 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 3. Factual matrix of the case are: That the father of the victim - Sri. Shamrao Maddali has lodged a complaint stating that his daughter who was aged about 14 years has been abducted by the accused namely Goutham @ Goutambuddha on 19.01.2015. The complainant is stated to have searched the victim at different places, however, he could not get any information about his daughter. Therefore, he lodges a complaint on 24.01.2015 around about 5.00 p.m. 4. On the basis of the complaint, the respondent police have registered a case against the accused in Cr.No.7/2015 for the offences punishable under Sections 366(A), 506 and 109 read with Section 34 of IPC. After registering the case, the respondent police have secured the victim and recorded her statement under Section 161 of Cr.P.C. 5. As per the statement of victim, the accused was insisting her to love him. She refused his offer and requested him not to follow her. On 19.01.2015 around about 10.30 am, when she had been to attend nature call in the field, he - 4 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 restrained her, insisted her to accompany him and took her in a Jeep to Tengali cross. Thereafter, they went to Kalaburagi Railway Station by bus. From there, they went to Bangalore by train. On the following day i.e., on 23.01.2015, he took her to the house of his maternal uncle and stayed there for three days. There, he is stated to have committed sexual assault on her. Afterwards, they came back to Kalaburagi. 6. It is further stated that on 30.01.2015, her statement was recorded under Section 164 of Cr.P.C. As per her statement, on 23.01.2015, the accused had assaulted her sexually and on 28.01.2015, they came to Veerabhadreshwara Temple, there, they have been apprehended by the respondent – police. Based on the statement of victim, the charge sheet came to be registered against the accused for the offences punishable under Sections 341, 506, 366(A), 376(2)(i) of IPC and 4, 8, 12 of POCSO Act, 2012. 7. Heard Sri. Nandkishore Boob, learned counsel for the appellant and Sri. Gopal Kirshna Yadav, learned High Court Government Pleader for respondent No.1. - 5 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 8. It is submission of learned counsel for the appellant that the judgment of conviction and order on sentence passed by the Trial Court are contrary to the facts and circumstances of the case. 9. It is further submitted that even though there is a delay in lodging the complaint, the same has not been considered properly. There is no specific date as to how and when the accused had committed rape on the victim. Further, the Doctor - P.W.21 had submitted his report as per Ex.P.19 after having considered the FSL report- Ex.P.17. According to the said report, there is no evidence of recent sexual intercourse. Further, it discloses that the victim is aged about 16 to 18 years. Even assuming that the fact which favours the accused has to be given as a benefit to the accused, the Trial Court ought to have considered the age of the victim is 18 years. If that were to be there, the impugned judgment ought not to have been passed. 10. It is further submitted that though the victim stayed for ten days along with the accused, she has neither made - 6 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 any effort to escape from his clutches nor tried to inform the same to her parents. 11. It is further submitted that the ingredients of Section 366(A) of IPC has not been established on the given set of facts. In spite of many lacunae, inconsistencies and contradictions in the evidence, the accused has been convicted by the Trial Court which is contrary to the evidence on record. Therefore, the same is liable to be set aside. 12. Per contra, learned High Court Government Pleader for respondent No.1 – State vehemently justified the judgment of conviction and order on sentence passed by the Trial Court and he further submitted that the evidence of prosecutrix has to be believed as there is no justification to disbelieve her evidence, in spite of cross- examination, she withstood the cross-examination and supported the case of the prosecution. 13. It is further submitted that the evidence of P.W.21 - doctor and P.W.14 - school headmistress would indicate that the victim was aged 14 years as on the date of the - 7 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 incident. Therefore, there is no infirmity in the findings of the Trial Court in recording the conviction. Hence, the judgment of conviction and order on sentence have to be upheld and the appeal has to be dismissed. Making such submissions, the learned High Court Government Pleader for respondent No.1 – State prays to dismiss the appeal. 14. Having heard learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, it is appropriate at this stage to review the findings in brief in respect of conviction. 15. The Trial Court while convicting the accused, opined that the evidence of P.W.2 coupled with the medical evidence would sufficient to hold that the victim had been subjected to rape. Accordingly, the conviction has been recorded against the accused. Whether such findings are proper or not, is the subject matter and the same has to be decided in this appeal. - 8 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 16. P.W.2 being a victim had stated before the police as well as the Magistrate in respect of the incident of rape or sexual assault committed by the accused against her will. 17. It is the case of the prosecution that the victim, who is examined as P.W.2, is aged about 14 years. Her school record would indicate that her date of birth is 15.08.2001 as on the date of alleged incident. Though, the defense tried to controvert the said issue, the facts remains that the headmistress who is examined as P.W.14 deposed in her evidence that the victim studied in her school and as per the school records, the date of birth of victim is 15.08.2001. 18. In this context, it is relevant to refer the judgment of Hon'ble Supreme Court in the case of 1P.Yuvaprakash Vs. State by Inspector of police, wherein the Hon'ble Supreme Court has categorically discussed about the manner in which the age has to be determined. The said aspects has been enumerated in the paragraphs No. 12 to 14 which read as under: 1 2023 AIR SC 3525 - 9 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 “12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below: “94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining - (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. - 10 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or - 11 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.” 19. On careful reading of the judgment of Hon'ble Supreme Court, the following documents are required to be looked into: the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, or the birth certificate issued by a Corporation or a Municipal Authority or a Panchayath. In the absence of these documents, it was incumbent upon the prosecution to prove through acceptable medical tests. - 12 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 20. In the present case, Ex.P.13-School Admission Register of victim has been produced by P.W.14 who was working as a Headmistress where the victim has been studied. Though, it is a school certificate which is not a birth certificate, the said certificate can be relied upon to determine the age of the victim. It is always not necessary to determine the age of the victim on the medical test alone, when the prosecution has established the age of the victim by producing the relevant documents. 21. The age of the victim can be determined as per Rule 12 of Juvenile Justice Rules, 2007. As per the said Rule, preference would be given to the matriculation or equivalent certificate. In the absence thereof, the date of birth certificate from the school (other than play school) first attended. In the absence thereof, the birth certificate given by a Corporation or a Municipal Authority or a Panchayath. In the absence of either, the medical opinion could be sought from a duly constituted medical board to declare the age of juvenile or child. - 13 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 22. In the present case, the age of the victim has been determined by relying on the School Admission Register which is marked as Ex.P.13. The said certificate has to be considered in consonance with the judgment of the Hon'ble Supreme Court stated supra. Additionally, the Final report of the doctor would indicate that the age of the victim is 16 to 18 years. This ambiguity has to be cleared before adverting to the evidence of the doctor and headmistress of the school. 23. The two certificates viz., Ex.P.20 - Final opinion and Ex.P.13 - School Admission Register show the age of the victim differently. Under such circumstances, it is appropriate to give the benefit to the accused by considering the certificate determining the age of the victim which favours the accused. As per Ex.P.20, the age of the victim is 16 to 18 years. If the said certificate is considered as true and genuine, the ingredients of above said provisions, viz,. 366(a), 376 (2)(i) of IPC and 4, 8, 12 of POCSO Act, 2012 do not applicable to the case on hand. - 14 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 24. Moreover, the victim had stated different versions before the different Authorities. She deposed in her evidence that she had been subjected to sexual assault in the house of his maternal uncle who is examined as P.W.4. However, the prosecution has not proved that she was confined in the said house by leading the independent witness. Therefore, the findings of the Trial Court by relying on the evidence of solitary witness who is not trustable is not sustainable and the same is liable to be set aside. 25. In the light of the observation made above, I proceed to pass the following: ORDER (i) The appeal filed by the appellant/accused is allowed. (ii) The judgment of conviction dated 23.08.2017 and order on sentence dated 31.08.2017 passed in Special Case (POCSO) No.9/2015 by the II Additional Sessions Judge, Kalaburagi are hereby set aside. - 15 - HC-KAR NC: 2025:KHC-K:4360 CRL.A No. 200124 of 2017 (iii) The accused is acquitted for the offences punishable under Sections 366 and 376(2)(i) of IPC and section 4 of POCSO Act, 2012. Sd/- (S RACHAIAH) JUDGE JS List No.: 19 Sl No.: 1