- 1 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA CRIMINAL APPEAL NO. 1945 OF 2022 (C) BETWEEN: SRI. PUNEETH @ BENKI PUNI S/O LATE LAKSHMANAGOWDA AGED ABOUT 27 YEARS, R/AT NO.3, 13TH CROSS, NEAR YELLAMMA TEMPLE, SRINIVASAPURA, BANASHANKARI 3RD STAGE, BENGALURU - 560 085 …APPELLANT (BY SRI. BANAGAR SHANKARAPPA GURAPPA, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, BY STATION HOUSE OFFICER, CHENNAMMANKERE, ACHUKATTU POLICE STATION, BENGALURU - 560 085 REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA , BENGALURU - 560 001 2. XXXXX D/O ASHA AGED ABOUT 15 YEARS, REPRESENTED BY MOTHER NATURAL GUARDIAN, SMT. ASHA, AGED ABOUT 47YEARS, R/AT NO.57/9, 3RD MAIN, 7TH CROSS, SRINIVASANAGARA BANASHANKARI 1ST STAGE, BENGALURU - 560 085 …RESPONDENTS (BY SMT. RASHMI JADHAV, ADDL. SPP. FOR R1 Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 R2 - SD) THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 01.08.2022 AND ORDER OF SENTENCE DATED 05.08.2022 PASSED BY THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, FTSC-III, BENGALURU IN SPL.C.C.NO.325/2018 AND THE APPELLANT/ACCUSED IS CONVICTED FOR THE OFFENCE P/U/S 376 OF IPC AND SECTION 4 AND 6 OF POCSO ACT AND ETC., THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT The accused in Special CC.No.325 of 2018 on the file of the learned Additional City Civil and Sessions Judge-FTSC-III, Bengaluru, is impugning the judgment of conviction dated 01.08.2022 and order of sentence dated 05.08.2022, convicting him for the offence punishable under Section 376 of the Indian Penal Code (for short 'the IPC') and under Sections 4 and 6 of Protection of Children from Sexual Offences Act (for short, 'the POCSO Act'), sentencing to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.10,000/- for the offence punishable under Section 376 of IPC and to undergo rigorous imprisonment for a period of 20 years and to pay fine - 3 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 of Rs.10,000/- for the offences punishable under Sections 4 and 6 of POCSO Act, with default sentences. 2. Brief facts of the case as made out by the prosecution are that, PW.2-the victim was a child, aged 14 years. She was induced by the accused, took her mobile number, promised to marry her and had committed sexual assault by hugging, kissing and touching her body. On 02.12.2017, again the accused induced the minor girl, took her to his room and committed penetrative sexual assault and repeatedly committed such offence. Thereby, he has committed the offence punishable under Section 376 of IPC and under Sections 4 and 6 of POCSO Act. The mother of the complainant lodged the first information as per Ex.P1. The FIR came to be registered as per Ex.P8. The accused was apprehended. After investigation, the charge sheet came to be filed for the above said offences. 3. The Trial Court took cognizance of the offences and committed the matter to the Sessions Court. The accused has appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to 11, got - 4 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 marked Exs.P1 to 12 and identified MO.1 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 for the offence punishable under Section 376 of IPC and under Sections 4 and 6 of POCSO Act, 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. Banagar Shakrappa Gurappa, learned counsel for the appellant and Smt.Rashmi Jadhav, learned Additional SPP for respondent No.1-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:25317 CRL.A No. 1945 of 2022 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 contention of the prosecution that, the victim was a child, aged 14 years and the accused was aged about 27 years, lured her and developed intimacy. He had collected her mobile number, and induced her to be in his company and committed sexual assault by hugging, kissing and touching the private part of the victim girl. It is also contended that on 02.12.2017, the accused induced the minor girl, took her to his room, committed aggravated penetrative sexual assault and thus he has committed the offence under Section 376 of IPC and under Sections 4 and 6 of POCSO Act. 7. To prove this contention, the prosecution has examined PW.1-the informant. The witness has stated that her daughter-the victim girl was studying in 8th standard, and accused induced her and developed intimacy. He collected mobile number of the minor girl and started saying that he will - 6 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 marry the victim girl. The witness has stated that on 02.12.2017 the accused induced the minor girl, took her to his room and committed rape. This fact was initially not informed by the victim girl as the accused had criminally intimidated not to inform this fact to anybody. The witness has stated that the accused had bit the body of the victim girl and used to threaten her not to reveal this fact to anybody else. After coming to know about the incident, she lodged the first information as per Ex.P1. Even though this witness was cross-examined at length, nothing has been elicited to disbelieve her version. The witness has specifically denied that the accused had never committed rape by taking the victim girl to his room. It is suggested to the witness that the accused and the victim girl were in love with one another, and since the accused was economically backward, she refused to get her daughter marry to him and filed the false complaint, but the same was denied by her. 8. PW.2 is the victim girl who deposed before the Court that she was studying in 8th standard during 2017. She came in contact with the accused, who was following her and asked her to call him over phone. The witness has stated that on - 7 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 02.12.2017, the accused had called and insisted her to come to his room. He threatened that if she does not come to his room he will come to her house. Therefore, she went to his room, the accused consumed alcohol and had sex with her. He started criminally intimidating that he will reveal this fact to her mother and forced her to come to his room again and again. 9. On 24.12.2017, the accused had misbehaved with her by pulling her hand in the public. On 07.01.2018, the accused had picked up quarrel with the father of the victim girl and he used to misbehave. He started insisting the victim to bring her sister as he is willing to have sex with her and even abused the parents of the victim. The witness has stated that she skipped her monthly periods and even then the accused was not ready to hear her. Then she informed this fact to her mother who lodged the first information. The witness has stated that she has given her statement before the learned Magistrate as per Ex.P2. This witness was also cross-examined by the learned counsel for the accused at length. She has repeatedly stated that even though the accused had committed the offences as stated above, she was not dare enough to inform this fact to - 8 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 her mother as the accused had criminally intimidated her. The evidence given by the victim discloses the conduct of the accused and the manner in which he behaved. 10. PW.3 is the father of the victim girl. He has deposed regarding the conduct of the accused and regarding the facts as learnt from the victim girl. The witness stated that many times he had scolded the accused when he had picked quarrel with him. But he had not filed any complaint initially. Since he was informed by his wife that the accused is treating the victim girl cruelly, they decided to file the complaint. 11. PW.4 is the Head Master of the School, where the victim girl was studying. He issued the Study Certificate as per Ex.P4 and Transfer Certificate as per Ex.P5. As per these documents, the date of birth of the victim girl is shown as 25.12.2003. As on the date of incident, she was 14 years old. PW.5 is the person who accompanied PW.1 while giving the first information and deposed regarding the facts narrated in the first information. The witness has stated that he learnt about the incident from the victim girl, who has stated that the accused started demanding the company of her sister. - 9 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 12. PW.6 is the witness to the spot mahazar drawn as per Ex.P6 which was drawn in the house of the accused where the incident had taken place. PW.7 is the Doctor who examined the accused and issued medical report as per Ex.P7. According to which, there is nothing to suggest that the person is incapable of performing sexual intercourse. PW.8 is the Assistant Sub-Inspector who received the first information as per Ex.P1 and registered the FIR Ex.P8. 13. PW.9 is the Doctor who examined the victim girl and issued the report as per Ex.P3. The witness stated that the hymen was not intact. But the victim had not sustained any external injuries. She also states that there was evidence of previous sexual intercourse. Nothing has been elicited from this witness during cross-examination to disbelieve her version. 14. PW.10 is the Women Police Sub-Inspector, who recorded the statement of the victim girl immediately after registration of the FIR. PW.11 is the Police Inspector and the Investigating Officer who conducted investigation and filed the charge sheet. He has deposed in-detail regarding the investigation undertaken and filing of the charge sheet. This - 10 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 witness was not cross-examined by the learned counsel for the accused. 15. The evidence of victim-PW.2 is supported by the evidence of PW.9 and the medical report Ex.P3 supports the contention of the prosecution. The evidence of PWs.1, 3 and 5 corroborate the evidence of PW.2. The tenor of cross- examination reveals that the accused is not denying his intimacy with the victim girl. In the statement of the accused recorded under Section 313 of Cr.PC, he has not taken any specific defence except denying the incriminating materials. He has not chosen to step into the witness box. 16. From the materials that are placed before the Court, it is clear that the prosecution is successful in proving that the accused induced the victim girl initially and committed sexual assault. Later he started blackmailing her and committed penetrative sexual assault on 02.12.2017. In support of the contention of the prosecution that the accused had committed penetrative sexual assault repeatedly, PW.2-the victim girl has never deposed about such incidents. Therefore, I am of the opinion that the prosecution is successful in proving the guilt of - 11 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 the accused for the offence under Section 376 of IPC and sexual assault punishable under Section 8 and penetrative sexual assault under Section 4 of POCSO Act. 16. When the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 376 of IPC and under Section 4 of the POCSO Act, the offender is liable for punishment as provided either under IPC or under POCSO Act, which is greater in degree. Since the offence under Section 8 of POCSO Act is lesser in degree when compared to the Section 4 of POCSO Act, I am of the opinion that the accused is liable for conviction and under Section 4 of POCSO Act. For the offence punishable under Section 376 of IPC as it stood as on the date of incident i.e. on 02.12.2017, the accused was liable for sentence with imprisonment not less than seven years, but which may extend to imprisonment for life and also to fine. Section 42 of POCSO Act deals with alternative punishment and it mandates that when commission of such offence is proved, which is liable to be punished under IPC as well as under POCSO Act, the accused is liable for punishment, which is greater in degree. Therefore, the offence - 12 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 under Section 376 of IPC and Section 4 of POCSO Act are punishable with similar sentence. In view of Section 42 of POCSO Act, the accused cannot be sentenced for both the offences. Hence, I am of the opinion that the accused is liable for conviction for the offence under Section 4 of POCSO Act alone. 17. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has proceeded to accept the contention of the prosecution and convicted the accused for the offence under Section 376 of IPC and under Sections 4 and 6 of POCSO Act unmindful of Section 42 of POCSO Act. It has also ignored the fact that even though the prosecution has contended that there were repeated incidents of penetrative sexual assault and the accused has committed the offence under Section 6 of POCSO Act, the prosecution witnesses including the victim-PW.2 specifically stated that the accused has committed penetrative sexual assault on 02.12.2017 only. Under such circumstances, I am of the opinion that the judgment of conviction and order of sentence passed by the Trial Court calls for interference. - 13 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 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 01.08.2022 and order of sentence dated 05.08.2022 passed in Special CC.No.325 of 2018 on the file of the learned Additional City Civil and Sessions Judge- FTSC-III, Bengaluru, for the offence punishable under Section 376 of IPC and under Section 6 of POCSO Act, are hereby set aside; iii. The judgment of conviction imposed by the Trial Court for the offence punishable under Section 4 of POCSO Act is confirmed. However, the order of sentence is modified as under: (a). The accused is sentenced to undergo imprisonment for a period of seven years and to pay fine of Rs.10,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of one year for the offence punishable under Section 4 of POCSO Act. (b). The accused is entitled for set off for the period he has already undergone the sentence. - 14 - HC-KAR NC: 2025:KHC:25317 CRL.A No. 1945 of 2022 iv. The Chief Superintendent, Central Prison, Parappana Agrahara, Bengaluru, is directed to verify the length of the imprisonment under gone by the accused and if in case, he has already served the sentence, to release the appellant forthwith, if he is not required to be detained in judicial custody in any other case and if the fine amount is deposited. Registry to send back the Trial Court records along with copy of this judgment to the Trial Court, for information and needful action. Sd/- (M G UMA) JUDGE MKM CT:VS List No.: 2 Sl No.: 3