- 1 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 2803 OF 2013 (C) C/W CRIMINAL APPEAL NO. 2536 OF 2013 IN CRL.A. NO.2803 OF 2023: BETWEEN: MAMTAZ NADAF W/O. AZIDSAB AGE: 41 YEARS, OCC: NIL, R/O. HOSANAGAR BADAVANE, HAVERI. …APPELLANT (BY SRI. MALLIKARJUNSWAMY B.HIREMATH AND SRI. ANKIT R.DESAI, ADVOCATES) AND: THE STATE OF KARNATAKA R/BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BENCH, DHARWAD. …RESPONDENT (BY SRI. ASHOK T.KATTIMANI, AGA) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND CONVICTION OF SESSIONS COURT, HAVERI, IN S.C.NO.64/2008, DATED 15.11.2012. IN CRL.A. NO.2536 OF 2013: BETWEEN: KALLAPPA S/O. MALLAPP TOTAGER AGE: 57 YEARS, OCC: DRIVER, R/O. BALIGAR ONI, NEAR UNAKAL, BUS STAND, HUBLI, DIST. DHARWAD. …APPELLANT (BY SRI. MALLIKARJUNSWAMY B.HIREMATH AND SRI. ANKIT R.DESAI, ADVOCATES) B K MAHENDRAKUMAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.02.20 16:40:03 +0530 - 2 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 AND: THE STATE OF KARNATAKA R/BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD. …RESPONDENT (BY SRI. ASHOK T.KATTIMANI, AGA) THIS CRIMINAL APPEAL IS FILED U/SEC. 374 OF CR.P.C. IS SEEKING TO SET ASIDE THE JUDGMENT AND CONVICTION ORDER DATED 15.11.2012 PASSED BY THE SESSION JUDGE, HAVERI IN S.C.NO.64/2008. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL JUDGMENT 1. The appellants (accused Nos.1 and 2), who have been convicted for the offences punishable under Section 366-A read with Section 34 of IPC and Section 5(b) of Immoral Traffic (Prevention) Act, 1956, and sentenced to undergo imprisonment for a period of seven years, are before this Court. 2. PW9, the complainant, lodged an FIR stating the following: ● On 2.8.2006, she left her residence in Sirsi and boarded a bus to Bengaluru on 3.8.2006. Subsequently, she took an auto to the house of Shivarajkumar, who was not present, and then returned to the bus stand to continue her journey via Kalburagi to Bengaluru. - 3 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 ● On 8.8.2006, she proceeded to the Harihara Bus Stand and, after alighting, boarded a train to Bengaluru. While on the train, due to the absence of available seating, accused Nos. 1 and 2 approached her and inquired about her destination. Upon her stating that she was traveling to Bengaluru in search of employment, they took her to their residence in Chikkbanawara, where she remained for approximately fifteen days. ● Thereafter, the accused took her to Shravanabelgola, where she stayed for one day. At that location, the accused induced her to engage in prostitution, which she refused. The accused then took her to Dharmasthala, where they again attempted to induce her into prostitution, and she again refused. Subsequently, she was returned to the residence of Accused No. 2 in Chikkbanawara, where she stayed for an additional fifteen days. During this period, a sleeping tablet was reportedly added to her cool drinks, and she was compelled to remain with the accused, who continued to attempt to force her to engage in prostitution. 3. On September 20, 2006, the accused took P.W.9 by train to Haveri. On September 21, 2006, she was taken to their residence at Hosanagara. On September 23, 2006, she contacted a person named Shivaram from her native place to inform him that she was staying at Hosanagara. Subsequently, a complaint was registered against the accused. - 4 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 4. To prove its case, the prosecution examined P.W.s 1 to 18, introduced documents as Exhibits P.1 to P.21(a), and marked objects as M.O. Nos. 1 to 4. 5. After considering the evidence and the arguments of both parties, the Trial Court framed issues for consideration and held that “the prosecution has established the guilt of the accused beyond all reasonable doubt,” thereby sustaining the conviction and sentence. 6. Counsel for the appellant argued that, apart from the complainant’s oral allegation, no substantive evidence establishes that the accused forcibly took the complainant at Chikkabanawara or induced her to engage in prostitution. He further contended that the medical evidence clearly shows that there was no recent sexual assault on the complainant. 7. The appellant’s counsel also submitted that the medical records (Exhibits P.2 to P.4) are contradictory, and the testimony of P.W.3, the doctor, is neither trustworthy nor credible due to conflicting opinions. 8. Additionally, counsel argued that P.W.2, the owner of the house at Chikkabanawara, has turned hostile, thereby weakening the prosecution’s case that the accused induced the complainant to engage in prostitution at that location. 9. In response, the Additional Government Advocate for the State maintained that the charge-sheet material and the testimony of P.W.9 clearly establish that the accused induced the - 5 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 complainant to carry out prostitution. He noted that cross- examination did not reveal any inconsistencies in the complainant’s statement. Accordingly, the prosecution had established the accused’s guilt beyond all reasonable doubt, and the Trial Court’s judgment and sentence were rightly passed. 10. The sole issue for consideration is whether the prosecution has indeed established the accused’s guilt beyond all reasonable doubt, and whether the Trial Court’s judgment and sentence are legally sustainable. 11. In her testimony as P.W.9, the complainant corroborated the prosecution’s case. She stated that she was taken to Chikkabanawara on August 8, 2006, and remained there for fifteen days without any allegation that the accused induced her to engage in prostitution during that period. Later, when taken to Shravanabelgola and Dharmasthala, the accused attempted to induce her into prostitution, which she refused. Upon returning to Chikkabanawara, the accused made her consume sleeping pills, and subsequently, one Rangappa forcibly committed sexual intercourse with her. Thereafter, she was subjected to forcible sexual intercourse on multiple occasions after being made to consume sleeping pills. 12. During cross-examination, a suggestion was made regarding the date on which the complainant was induced to engage in prostitution; however, she stated that she could not recall the exact date. - 6 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 13. She further admitted that she did not inform other individuals, introduced during the period when she was subjected to forcible sexual assault, nor did she remember the phone number of Shivaram—whom she had informed of her stay at Haveri. (Shivaram was examined by the prosecution as P.W.11.) 14. P.W.1 testified that the complainant had called him by phone and stated that the incident occurred at a house in Chikkabanawara. P.W.12, identified as the broker who facilitated the lease of the house to Accused Nos. 1 and 2, did not support the prosecution’s case in his examination-in-chief, and nothing in his cross-examination undermined his testimony. 15. The panchas to the spot (mahazar) at Exhibit P.6 were examined as P.W.s 8 and 9. In their examination-in-chief, they did not support the prosecution’s case, and their cross-examinations did not elicit any evidence favoring the prosecution. 16. The doctor who examined the complainant testified as P.W.3. According to the Medical Examination Report (Exhibit P.2), the complainant’s history indicates that sexual assault occurred between 09.08.2006 and 20.09.2006, with the last incident on 20.09.2006. However, the report noted the presence of two old tears in the hymen (observed at the 5 o’clock and 7 o’clock positions), and the local genital examination revealed no signs of a recent sexual assault. 17. P.W.3 further opined that the hymenal ruptures, consistent with two old tears, were more than two weeks old but - 7 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 less than one month old, thereby indicating that the forcible sexual intercourse occurred prior to the examination within that timeframe. 18. Exhibit P.4, the Final Medical Examination Report, concludes that there is no evidence of recent sexual intercourse and suggests that the complainant appears to have simulated the signs of sexual intercourse. 19. Section 366 of the IPC criminalizes the act of inducing a minor girl under the age of eighteen to leave a place or perform an act with the intent that she may be forced or seduced into illicit intercourse. The punishment for this offense extends to ten years of imprisonment along with a fine. 20. In the present case, there is no allegation that the accused induced the complainant to leave any place. On the contrary, the evidence on record establishes that the complainant accompanied the accused voluntarily, without undue influence or coercion. The sole allegation against the accused is that he induced the complainant to engage in prostitution. Therefore, there is no evidence to substantiate an offense under Section 366 IPC. 21. Section 5B of the Immoral Traffic (Prevention) Act, 1956, is analogous to Section 366A IPC. To establish an offense under this provision, the prosecution must prove that the accused induced another person to leave a place with the intent that they would engage in prostitution or become an inmate or frequent visitor of a brothel. - 8 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 22. In the present case, there is no allegation that the accused took the complainant to a brothel to become an inmate or a frequent visitor. The only allegation is that the accused subjected the complainant to forcible sexual intercourse at a house in Chikkabanawara after administering sleeping pills. 23. Even if the allegations are accepted, they would fall under Section 5A of the Immoral Traffic (Prevention) Act, which criminalizes procuring or attempting to procure a woman or girl for prostitution, regardless of her consent. This offense carries a punishment of rigorous imprisonment for a term of five to seven years. However, the charge framed against the accused was under Section 366A IPC and Section 5B of the Immoral Traffic (Prevention) Act, 1956. 24. Section 328 of the IPC penalizes the act of administering any poison, stupefying, intoxicating, or unwholesome drug with the intent to cause harm or facilitate the commission of an offense. The punishment for this offense extends to ten years of imprisonment along with a fine. 25. In the present case, except for the oral testimony of the complainant, there is no credible evidence to substantiate that the accused administered sleeping pills to the complainant with the intent to force her into prostitution. 26. The complainant’s failure to disclose the alleged inducement to engage in prostitution from 08.08.2006 to 29.06.2006 to any person raises suspicion regarding the veracity of - 9 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 her allegations. The accused cannot be convicted solely on suspicion or the uncorroborated testimony of the complainant. 27. During the cross-examination of P.W.9, she categorically stated that she was informed by Accused No.1, Mamtaz, the day after the alleged incident that she had been subjected to forcible sexual intercourse by one Rangappa after being administered sleeping pills. 28. The testimony of P.W.9 clearly indicates that she was induced to engage in prostitution after being given sleeping pills. However, this contradicts her earlier claim that she was subjected to forcible sexual intercourse after being drugged. Her testimony states that Rangappa forcibly had sexual intercourse with her after the accused administered sleeping pills. 29. Therefore, the prosecution has failed to establish beyond a reasonable doubt that the accused induced the complainant into prostitution after administering sleeping pills. Accordingly, the following order is passed: ORDER i) The appeals are allowed. ii) The impugned judgment dated 15.11.2013 and the order of sentence dated 16.11.2013 passed by the Sessions Judge Haveri, in S.C.No.64/2008 is hereby set aside. - 10 - NC: 2025:KHC-D:2592 CRL.A No. 2803 of 2013 C/W CRL.A No. 2536 of 2013 iii) Appellants/accused are acquitted of the offences alleged against them. iv) Bail bonds, if any, stand cancelled. Sd/- (HEMANT CHANDANGOUDAR) JUDGE BKM,AC Ct:vh List No.: 1 Sl No.: 202