- 1 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 100521 OF 2021 (A-) BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE INSPECTOR OF POLICE, MUNDARAGI POLICE STATION, DIST. GADAG, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP) AND: SHRI. RAJAPPA @ NAGARAJ S/O. FAKIRAPPA VEERAPUR AGE. 22 YEARS, OCC. COOLIE WORK, R/O. HALLIGUDI, TQ. MUNDARAGI, DIST. GADAG-582115. …RESPONDENT (BY SRI. SRINIVAS B. NAIK, ADV) THIS CRIMINAL APPEAL IS FILED U/SEC. 378 (1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 31.10.2019 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, GADAG IN SESSIONS CASE (POCSO) NO.16/2017 AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 31.10.2019 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, GADAG IN SESSIONS CASE (POCSO) NO.16/2017 & CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SEC.376(2)(i) OF IPC AND UNDER SEC. 4 AND 8 POCSO ACT 2012. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:05:01 +0530 - 2 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This appeal is filed by the State challenging the judgment of acquittal dated 31.10.2019 passed in S.C.No.16/2017 (POCSO) by the Additional District and Sessions Judge, Gadag, for the offences punishable under Section 376(2(I) of IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012. 2. The brief facts leading rise to filing of this appeal are as follows: On 27.12.2016, at about 4.30 p.m. when the complainant was sitting near her house along with her three children, the victim girl was crying, and at that time, the accused came there, and took the victim girl on the pretext of getting her a chocolate, went near the shop. Though half an hour has passed, the accused did not bring the child back. The complainant in search of the accused - 3 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 and the child, went near the shop, but the accused and the child were not found. After sometime, she saw the victim girl was sitting on the bicycle and the accused was moving the bicycle. On enquiry with the accused as to why there was a delay, the accused did not reply properly but was stammering. Immediately, the complainant took the victim girl inside the house. The victim was saying that ‘awwa’, ‘ajja’ and was crying. Thereafter, the complainant enquired with the accused, as to what he has done. The accused said that the victim fell down from the bicycle. At that point on time, the accused was shivering. On looking at the genital area of the victim, it was found that there is redness, seminal stain which was dry in nature was also found. The complainant asked the accused, as to what happened, immediately, the accused ran away from the spot. The sexual assault has been committed on the victim girl and when the victim girl while passing urine, she complained of severe pain. The complainant, her husband and relatives took the victim girl to the Gadag District Hospital for treatment. On the basis of the complaint - 4 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 lodged by the complainant, i.e., the mother of the victim girl, the Mundaragi police station registered a case in crime No.320/2016 for the offences punishable under Section 376(2)(I) of IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012. 3. The police took up the investigation and filed the charge sheet for the offences punishable under Section 376(2(I) of IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012. The charges came to be framed by the learned Sessions Judge, and the accused pleaded not guilty. The prosecution examined in all 17 witnesses and marked 31 documents as Exs.P1 to P31, and M.O’s.1 to 7. 4. While recording the statement under Section 313 of Cr.P.C., the accused denied the charges leveled against him. The Sessions Court after considering the entire material on record, held that the accused has not committed any offence as alleged by the prosecution, and acquitted the accused vide judgment dated 31.10.2019. - 5 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 The State, aggrieved by the judgment of acquittal, has filed this criminal appeal. 5. Heard the learned Additional SPP for the State and learned counsel for the respondent/accused. 6. The learned Additional SPP submits that the accused has committed sexual assault on the victim. The victim is a minor girl, and the mother of the victim, i.e., P.W.1 has consistently deposed before the court regarding the commission of the sexual assault on her daughter, i.e., the victim girl, who is aged about 2½ years. He submits that the evidence of P.W.1 corroborates the evidence of P.W.12-doctor, who examined the victim girl on 27.12.2016. He submits that P.W.12, who examined the victim girl has opined that an attempt of sexual assault cannot be ruled out. He submits that the reasons assigned by the Sessions Court are contrary to the records, and the Sessions Court ought to have taken into consideration the evidence of P.Ws.1, 12 and 14. He submits that the judgment of acquittal passed by the Sessions Court suffers - 6 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 from legal infirmities. Hence, on these grounds, he prays to allow the appeal, and convict the accused for the offences alleged against him. 7. Per contra, learned counsel for the respondent/accused submits that the medical records are against the prosecution. He submits that the husband of the complainant, i.e., P.W.4 does not know anything about the case, nor has he given any statement before the police. He submits that the doctor has opined that the signs of recent sexual intercourse cannot be commented on. He submits that the FSL report does not disclose that, no seminal stains were detected in the vulval swab and anal swab. He submits that, it is nowhere stated by the doctor that there was an earlier injury which has healed recently. He submits that the case of the prosecution is that the accused has brought back the victim girl on the bicycle, but the said bicycle was not seized and produced before the court. He submits that there are several contradictions in the statement given by the complainant - 7 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 under Section 164 of Cr.P.C., before the learned Magistrate, and the averments made in the complaint. He submits that the Sessions Court was justified in acquitting the accused and prays to dismiss the appeal. 8. Perused the records and considered the submissions made by the learned counsel for the parties, and also re-evaluated the entire evidence placed by the prosecution to bring home the guilt of the accused. 9. The point that arise for our consideration is: 1) Whether the prosecution proves that the judgment and order of acquittal passed by the Sessions Court is perverse and arbitrary? 10. The prosecution examined in all 17 witnesses. P.W.1-Hanamava Pujar is the complainant. She deposed that, victim is her daughter, who is aged 2½ years. On 27.12.2016, around 4.00 p.m., she and her daughter were sitting in front of a shrine, near their house, when the - 8 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 accused came there, and took the victim girl on the pretext of giving a chocolate to the victim girl. Even after an hour, the accused did not bring her daughter. She looked around here and there, at that time, the accused brought the victim girl on his bicycle and handed over the victim girl to her. At that time, the victim was not conscious. P.W.1 took her daughter inside her house. The accused was then sleeping on the wall of the temple. She gave water to the victim girl and thereafter, she regained the consciousness. Thereafter, she brought the victim girl out of the house. On seeing the accused, the victim girl was frightened, showed the accused and pointed out towards her private part. P.W.1 enquired the accused as to what he did to her daughter, as the victim girl was pointing towards her private part. The accused said that he has not done anything, but the victim girl fell down from the bicycle, as such, she is pointing her finger towards her private part. Then, immediately, he ran away from the spot. She further deposed that, when her husband came to the house, she informed him that his - 9 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 daughter was sexually assaulted by the accused. The husband searched for the accused, he was found in the field and brought to his house, and interrogated. Thereafter, they took the victim girl to the District Hospital, Gadag. She gave a statement before the police and they have recorded her statement and then she affixed her thumb impression. She deposed that the accused took the victim to the paddy field and committed the sexual assault on the victim. 11. During the cross-examination, it is elicited that, she does not know the day of the week on which the alleged incident has taken place. It is elicited that there was a fight between the mother of the accused, and the family members of P.W.1, and the relationship between the complainant and the accused were not cordial. It is elicited that the accused was working as a driver and he comes home, once in a 15 days. Two days before the incident, the accused came to the village and heard about the fight between the complainant and his mother. It is - 10 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 elicited that there is a shop near the temple and gutter situated near to her house. It was suggested to the complainant that, on the date of lodging the complaint, the accused was not in the village, she has denied the said suggestion. She deposed that, while searching her daughter, she did not ask any of the shopkeepers. 12. Basavaraj Devur was examined as P.W.2. He deposed that the panchanama was done by the competent police. One year back, the police came to the place where he was working and took his signature. His signature is marked as Ex.P3(a) and he does not know what is written in Ex.P1, and why his photo was taken as per Ex.P2. This witness was turned hostile. The prosecution has cross- examined him, and nothing has been elicited from the mouth of this witness. 13. Somashekharappa Channalli was examined as P.W.3. He deposed that one year back, the police came to the Bevoor’s farm house and took his signature. His signature is marked as Ex.P3(b). He also does not know - 11 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 what is written in Exs.P1 and P3. This witness also turned hostile and the prosecution has cross-examined this witness. 14. Prabhu Pujar was examined as P.W.4. He is the husband of P.W.1. He deposed that, victim is his daughter, and he did not give any statement before the police that the accused took his daughter and committed sexual assault on her. This witness also turned hostile. 15. Mallappa Pujar was examined as P.W.5. He deposed that he does not know about this case, and he has not given any statement before the police. This witness also turned hostile. 16. Ramesh Durgappa Gundiker was examined as P.W.6. He deposed that he has not given any statement before the police. C.Ws.5 to 9 are known to him. He came to know from his elder brother Honnappa that the victim girl was subjected to sexual assault. Then his elder brother asked him to give money to the Prabhu Pujar, and went to - 12 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 the District Hospital and gave money to C.W.4. This witness also turned hostile. 17. Lakshmavva Bharamappa Neelappanavar was examined as P.W.7, and this witness also turned hostile. 18. Siddavva Neelappa Neelappanavar was examined as P.W.8. She deposed that, she knows C.W.2 is acquainted with them, and they are from the same town. She did not give any statement before the police, and the police never interrogated her. She did not know anything about the case. This witness was also turned hostile. 19. Imamsab Madarangi was examined as P.W.9. He was working as a police constable. He deposed that from 2012 to June 2017, he was working in the Mundaragi police station. On 27.12.2016, MLC information was received from the Gadag District Hospital, and at that time, he accompanied the Police Inspector, Mundaragi to the Gadag District Hospital, wherein P.W.1 stated that her daughter was sexually assaulted, and he wrote the - 13 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 complaint in the District Hospital, as per the instructions of P.W.1. He identified his signature as Ex.P10(a). After recording the statement of the complainant, they went to the police station and the Police Inspector has registered the case in crime No.320/2016. He took up the original complaint and the FIR as directed by the Police Inspector. It was suggested to this witness that, a false case is registered against the accused. The said suggestion was denied by him. 20. S.M.Hadapad was examined as P.W.10. He was working as a Police Constable. He deposed that, on 28.12.2016, as per the oral order of the Police Inspector, Mundaragi, he has taken the accused to the Government Hospital for medical examination. After completion of the medical examination, CPI and the accused went to the spot for inspection, and thereafter, they produced the accused before the court. He submitted the report, which is marked as Ex.P11, and his signature is marked as Ex.P11(a). During the course of cross-examination, he was - 14 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 unable to state, what time he took the accused to the Government Hospital, to the spot, and at what time he produced the accused before the court. 21. Hanamavva Bharamappa Talawar was examined as P.W.11. She deposed that, on 27.12.2016, she was on duty at Gadag Mahila Police Station. As per the order of the ASI, she took the victim girl and her mother to the Gadag District Hospital for medical examination. After the medical examination, the victim girl and her mother were returned to the police station. On 29.12.2016, she escorted the victim girl and her mother to the court to record the statement of the mother of the victim girl under Section 164 of Cr.P.C. She submitted the report to the PSI on 29.12.2016 about the work done in this case. The said report is marked as Ex.P13 and her signature is marked as Ex.P13(a). During the cross- examination, she was unable to say the exact time when the victim girl was taken to the hospital, and what time they returned from the hospital. She did not know how - 15 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 long the victim girl and her mother were produced before the learned Judge for recording the statement under Section 164 of Cr.P.C., and she was not present in the court while recording the statement. 22. Dr.Kirthihas H.B. was examined as P.W.14. He deposed that, from 2016, he was working as a Medical Officer in Mundaragi Taluka Hospital, Mundaragi. On 28.12.2016, he has received a requisition from the Mundaragi P.S. for conducting the medical examination of the accused for sexual offence. The accused present in the court was produced before him on 28.12.2016 through P.C.861 and P.C.367. He has noted the identification marks of the accused. He has conducted the physical examination of the accused and the genital examination as well. During the course of medical examination, he has collected the articles, such as, i) swabs from the surface of glans of penis; ii) nail clippings from both hands; iii) pubic hairs after combing; and iv) inner wear 1 brief. On examination of the accused, he has given his opinion that - 16 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 there is nothing to suggest a sexual act. He prepared the examination report of the accused, which is marked as Ex.P20, and his signature is marked as Ex.P20(a). During the course of cross-examination, it is elicited that, based on the requisition from the police, we prepared the OPD record and conducted the examination of the accused of the sexual offence. He deposed that, he has not brought the said records to the court. He admits that Ex.P20 contains the identification marks of the accused, but does not bear the signature or thumb impression of the accused. He admitted that police would have furnished certain documents along with the requisition, and denied that his report is incorrect. He denied that Ex.P20 was prepared as per the instructions of the police. 23. Iranna Kubasad was examined as P.W.15. He deposed that, as per the requisition made by the police, he prepared the spot panchanama in crime No.320/2016, and he has prepared two hand sketches, which are marked as Exs.P21 and P22. He denied that the contents of Exs.P21 - 17 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 and P22 are incorrect and the same were prepared on the instructions of the police. 24. Manjula Basavaraj Sadariyavar was examined as P.W.16. She deposed that from July 2016 to January 2017, she was working as PSI in Naregal Police Station. On 27.12.2016, she was attending the Annual Police Sports meet at Gadad, the D.S.P. of Naragund called her and instructed her that she should go to Gadag District Hospital and take the statement of the victim. Since the victim girl was 2 years old, and was unable to answer, she enquired with the mother of the victim girl, who is the complainant. In the cross-examination, it was elicited that D.S.P. has not given instructions in writing to her, when she was attending the Annual Police Sports at Gadag. It is stated that, in the station house diary of her police station, daily we enter the things we do. However, on 27.02.2016, she has not entered in the station house diary that she has received the statement of the mother of the victim girl, - 18 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 except her signature as per Ex.P10(b). She has no other record for receiving the statement of the complainant. 25. Manjunath V.Nadavinamani was examined as P.W.17. He deposed that he was working as CPI of Ron Police Station. From 10.08.2016 to 29.09.2018, he was working as a Police Inspector in Mundaragi Police Station. He deposed that on 27.12.2016 at 8.30 p.m., SHO called him over the phone and stated that he had received a phone call from Gadag Mahila Santwan Kendra. He immediately informed his superiors about the incident. Since there is no woman inspector in the police station, a woman police inspector should be sent from another police station. D.S.P. Naragund appointed a woman inspector of Naragund police station and she was taken to the Gadag District Hospital, and the PSI has recorded the statement of P.W.1, i.e., the mother of the victim girl. After recording the statement, he went to the Mudaragi Police Station, and registered the criminal case in crime No.320/2016. The - 19 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 said complaint is marked as Ex.P10, and his signature is marked as Ex.P10(a). 26. In the light of the contentions raised by the State, it is necessary to examine the witnesses of the prosecution. 27. P.W.1 is the mother of the victim girl. She is not an eyewitness to any of the acts attributed by the prosecution. Looking at her evidence, it is clearly a hearsay evidence. The evidence of P.W.1 is not corroborated with the evidence of the doctor, who examined the victim girl. Further, the husband of the complainant i.e., P.W.4 has not stated anything before the court about the alleged incident. He also did not given any statement before the police under Section 161 of Cr.P.C. His evidence is quite opposite to the deposition of P.W.1. The victim girl was taken to the hospital on 27.12.2016 at 9.00 p.m. and the complaint was filed on the same day. From the perusal of the report submitted by P.W.12, it discloses that the incident is said to have taken place - 20 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 between 4.00 to 4.30 p.m. The child was conscious, orientated and playful. Emotional status is stable and cooperative. From the perusal of the Ex.P17 FSL report, it discloses that no seminal stains were detected in the vulval swab and anal swab. However, the attempt of sexual assault cannot be ruled out. The report specifically does not state that there was a sexual assault on the victim girl. As per the case of the prosecution itself, the incident took place on 27.12.2016 and the same day, the victim was examined. The medical evidence in the present case establishes that the victim girl never had any sexual assault or intercourse at all. This leads drawing a reversal conclusion that the prosecution has failed to prove that the accused has committed an offence punishable under Section 376(2)(I) of IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012. 28. The only evidence available in the present case is the series of testimonies of P.W.1, who is the mother of the victim girl. As observed above, the father of the victim - 21 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 girl has not supported the case of the prosecution. A bare reading of the evidence of P.W.1, it clearly establishes that, it would not be trustworthy to convict the accused in the present case on hand. The other witnesses have turned hostile. There is no medical evidence on record to support the theory of the prosecution that the victim was subjected to sexual assault by the accused. 29. On proper analysis of the evidence of the prosecution witnesses and the medical evidence brought on record by the prosecution, it is not sufficient to draw a presumption under Section 29 of the POCSO Act. It has come in the evidence of P.W.1 that there was a quarrel between P.W.1 and the mother of the accused, which lead to the complainant to lodge a criminal case against the accused. On careful scrutiny and analysis of the material evidence on record, it clearly demonstrates that the present case is a false implication. There is no material on record indicating the alleged sexual assault committed by the accused. In the absence of the material on record that - 22 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 the alleged offence has been committed on the victim girl cannot be sustained. 30. It is relevant to refer the judgment of the Hon’ble Apex Court rendered in the case of Sharad Birdhichand Sarda vs. Staste of Maharashtra reported in (1984) 4 SCC 116 wherein at paragraph 163, it is held as under: “164. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this court made the following observations (para 25 p.820). “Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the - 23 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 guilt of the accused and the other to his innocence, they view which is favourable to the accused would be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.” (emphasis supplied) 31. The Hon’ble Apex Court in the case of Umedbhai Jadavbhai vs. State of Gujarat reported in 1978 SCC (Cri) 108 wherein at paragraph 10 held as under: “10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence.” (emphasis supplied) - 24 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 32. The Hon’ble Apex Court in the case of Chandrappa and Others vs. State of Karnataka reported in (2007) 4 SCC 415 wherein at paragraph 44 it is held as under: “In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the - 25 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside.” (emphasis supplied) 33. The Sessions Court, considering the evidence of the prosecution inclusive of the defence theory rendered the judgment of acquittal. The finding recorded by the Sessions Court while acquitting the accused is just and proper and based on the evidence of the prosecution. There is no merit in the appeal which calls for interference by this court. 34. Considering the law laid down by the Hon’ble Apex Court in the judgments referred above, we answer point No.1 in the negative and proceed to pass the following: - 26 - NC: 2025:KHC-D:2975-DB CRL.A No. 100521 of 2021 ORDER i) The criminal appeal is dismissed. ii) The judgment of acquittal dated 31.10.2019 passed in S.C.No.16/2017(POCSO) by the Additional District and Sessions Judge, Gadag for the offences punishable under Section 376(2)(I) of IPC and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012, is hereby confirmed. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 19