- 1 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 100500 OF 2019 (A) BETWEEN: STATE OF KARNATAKA BY NAREGAL POLICE STATION, GADAG DISTRICT, 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: SUNIL S/O. YAMANURAPPA MYAGALAMANI, AGE: 23 YEARS, R/O: HIREKOPPA, NOW R/O: NEAR KOTTUR CHOUKI, J.B.ROAD, KODIKAL, MANGALURU. …RESPONDENT (BY SRI. SOURABH A. SONDUR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30/04/2019, PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE, GADAG IN S.C.NO.2/2016 AND CONVICT Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.01 12:08:01 +0530 - 2 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 THE RESPONDENTS / ACCUSED FOR THE OFFENCES PUNISHABLE U/SEC.363, 376, 506 OF IPC AND UNDER SECTION 4 OF POCSO ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: 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 UMESH M ADIGA) This appeal is by the State against the judgment dated 30.04.2019, passed in Sessions Case No.2/2016, by the learned Additional District and Sessions Judge, Gadag (for short `trial Court'). 2. It is the case of the prosecution that PW-2 – Hullappa Madar and his wife PW-3 Manjula Madar were residing at Mangaluru and they were permanent residents of a village in Badami Taluk. Both of them came to Mangaluru to earn their livelihood by working as a coolie. PW-1 – victim is their eldest daughter and PW-7 – Kumari Swati Madar is their youngest daughter. Both of them were studying in a - 3 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 school at Mangaluru. PW-1 was aged about 15 years at the time of incident and she was studying in High School. PW-1 was not good in her studies and most of the time she used to play in the mobile phone. In view of the same, PW-2 and PW-3 were blaming her for not giving attention for her studies. PW-1 was feeling that her parents were not loving her and they were not concerned about her. With that belief, on 26.06.2015, she left her parents’ house along with cash of Rs.40,000/- being savings of her father and went to Nidagundi village without informing to her parents. In Nidagundi village, she stayed in the house of accused. PWs-2 and 3 searched for PW-1 in and around Mangaluru, as well as in their native place, they could not trace her. Therefore, PW-2 lodged a missing complaint on 10.07.2015 at Urva Police Station, Mangaluru. He has also informed to the police that while leaving home, PW-1 had taken away of Rs.40,000/- that was kept in the house and he also suspected that someone must have persuaded her to bring the money and thereafter kidnapped her. On the basis of the said complaint, police registered a case in - 4 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 Crime No.47/2015 for the offence punishable under Section 363 of IPC. 3. It appears that police of Urva Police station got credible information that PW-1 was residing at Nidagundi Village and therefore, they contacted Naregal Police Station and informed them in this regard. It appears that Station House Officer of Urva Police Station sent police officials to Naregal Police Station along with PWs-2 and 3. Thereafter, Station House Officer of Naregal Police Station secured the presence of PW-1 from her relatives’ house. Naregal police sent PW-1 along with her parents as well as the police official deputed from Urva Police Station. PWs-2 and 3 along with PW-1 went to Urva Police station on 14.08.2015. It appears that Urva Police secured presence of a counselor from Women Police Station, before whom PW-1 has stated about the incident. PW-1 also gave statement before PW-16 – Ravin Nayak, the Police Inspector of Urva Police Station. On the basis of the said statement, PW-16 added Section 376 and 506 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, - 5 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 2012, (for short, `POCSO Act’) to the FIR already registered in Cr.No.47/2015. The incident of rape was committed within the jurisdiction of Naregal Police station. Therefore, PSI of Naregal Police station on the basis of transferred FIR No.47/2015 re-registered Cr.No.84/2015 on 08.10.2015 and submitted FIR to the jurisdictional Court. Thereafter, SHO of Naregal Police Station investigated the matter and on conclusion of the investigation, submitted charge sheet to the jurisdictional Court against the accused for the offence punishable under Sections 363, 376 and 506 of IPC and under Section 4 of POCSO Act. 4. The trial court after securing the presence of the accused, heard both side and framed the charges. The accused pleaded not guilty for the said offences and claimed to be tried. Therefore, the court has given an opportunity to the prosecution to lead its evidence. Accordingly, prosecution to prove its case, examined 23 witnesses as PW-1 to PW-23 and got marked 18 documents as per Ex.P1 to P18 and closed its evidence. Thereafter, the learned trial judge examined the accused under Section 313 of the Criminal - 6 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 Procedure Code and his answers were recorded. The accused did not lead defense evidence when called upon. 5. Learned trial Judge after hearing both the parties and appreciating the evidence available on record, by the impugned judgment dated 30.04.2019, acquitted the accused of the charges punishable under Sections 363, 376 and 506 of IPC and Section 4 of the POCSO Act. Being aggrieved by the said findings, the State preferred this appeal on the grounds mentioned in the appeal memo. 6. We have heard the arguments. 7. The learned Additional State Public Prosecutor vehemently contended that PW.1 is the victim of the incident. In her evidence, she has reiterated the allegations made in the complaint. During the investigation, the learned JMFC, Mangaluru, recorded her statement under Section 164 of Cr.P.C. In the cross examination, except denial of her evidence nothing was brought out to discard her evidence. It is pertinent to note that her presence was secured from the house of the accused at Nidagundi. It was - 7 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 not brought out in the cross-examination of PW.1 to 3 to show if there was any enmity between accused and PW.1 to 3 to file false case against the accused. The medical evidence also supports the case of the prosecution. PW.19 during his evidence has stated about the investigation done by him. PW.2 and 3 corroborated the evidence of PW.1 regarding missing of PW.1 from Mangaluru on 26.06.2015. Other witnesses are not material witnesses and they have not supported the case of prosecution is not a ground for acquittal. The learned trial Judge has not properly appreciated the evidence produced by the prosecution. With these reasons prayed to reverse the findings of the trial Court. 8. The learned counsel for the respondent – accused submits that PW.1 is only the witness to the alleged incident. Her evidence is not consistent and reliable. There is no explanation as to why accused left his house and went to house of Durgappa. It is not the case of the prosecution that nobody was residing in the house of Durgappa, wherein the alleged incident took place. However, the prosecution has - 8 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 not placed any material in this regard. Medical evidence does not support the case of the prosecution. No evidence is led to prove that PW.1 was minor at the time of incident. FSL report does not support the allegations made against the accused. Complaint was lodged after 15 days from the alleged date of incident and there is no explanation for the delay in lodging complaint. 9. It is further contended that, PW.1 has not stated about the alleged rape committed by the accused before JMFC., when her statement was recorded under Section 164 of Criminal Procedure Code considering all these lapses in the case of prosecution, the learned trial Judge has acquitted the accused. The said findings are not perverse, arbitrary and illegal. It is a settled trite of law that for reversing of the acquittal judgment by the appellate Court, there must be strong reasons and it shall be proved that judgment rendered by the trial Court was perverse. Both facts are absent in the present case. For these reasons, prayed for dismissing the appeal. - 9 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 10. The following points emerges for our determination: i. Whether the learned trial Judge erred in acquitting the accused for the offences punishable under Sections 363, 376, 504 of Indian Penal Code and Section 4 of the POCSO Act and interference in the said finding is required. ii. What order? Our answer to the above question is in the negative for the following reasons: 11. PW-1 is a material witness in this case. She is a victim and eye witness to the incident. In her evidence, she has narrated the facts of the case. According to her evidence, on 26.07.2015, she left her house along with Rs.40,000/- kept in her house and came to Nidagundi village in a bus and stayed in the house of the accused and his wife Yellamma. She spent some amount towards bus charge as well as miscellaneous expenses and handed over the remaining amount to Yellamma. She stayed at Yellamma’s house for about 15 days. Yallamma’s child - 10 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 naming ceremony was fixed on the date of incident and she was expecting lot of guests to the said function. Therefore, she told to PW-1 to sleep in the house of Durgappa during night which was situated near her house. Accordingly, on that night, she went and slept in the house of Durgappa. Around 11.30 p.m, accused came to the said house and started touching her body. She woke up and enquired the accused. The accused criminally intimidated her and told her that if she discloses the said fact to anybody, he would kill her. The accused undressed her and against her refusal, had sexual intercourse with her. On the next day, she came to the house of Yellamma and did not tell the said fact to Yellamma or any other members of her family. She further stated that Yellamma sent her to the house of her relative at Bollatti and mother of Yellamma took her to Naregal Police Station. At Naregal police station the police enquired her and recorded her statement. Thereafter, she was sent back to Mangaluru. 12. PW-1 further stated that she was taken to Urva Police Station, Mangaluru. The Station House Officer of - 11 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 the said police station sent her to Wenlock Hospital, Mangaluru for medical examination. She further stated that after medical examination, she was sent to Pragna Counseling Centre for counseling and thereafter she had been staying in the said counseling centre. She has also stated that she was taken to the spot of incident by police and drew the mahazar. PW-1 has also stated that she was taken to a Court at Mangaluru, wherein she has given her statement before the Magistrate as per Ex.P1. 13. In her cross-examination, PW-1 has stated that accused as well as his wife had came to Mangaluru for earning their livelihood and during that time, both of them were residing in a rented house belonging to PW2. She has also stated that when she went to the house of Yellamma, at that time accused was not in his house and he went to Karwar for earning his livelihood. In her further cross- examination, she has stated that she does not know the name of the owner of the house wherein the incident has taken place. When she stayed in the said house, on that night, Durgappa, his wife and children were residing in that - 12 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 house. She has also stated that there were other houses near the spot of the incident. She further stated that while giving statement before Naregal Police, she has complained against the accused that he has committed rape on her. She has also stated that her parents lodged a complaint in Naregal Police Station against the accused for having committed rape on her. PW-1 denied the suggestions of the accused that with a bad intention to victimize the accused, she and her parents field a false complaint against the accused. She also denied the suggestion that accused was unable to pay Rs.40,000/- immediately, therefore, to force the accused for return of the said money, her parents lodged a false complaint. She also denied the suggestions of the accused that no such incident had taken placed as alleged by her. 14. The evidence of PW-1 does not inspire conference for the following reasons: i) She was studying in high school but she did not give the exact date of calendar of events occurred from the date on which she left her - 13 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 house till lodging of the complaint. According to the case of the prosecution, on 26.06.2015 she left the house of PW-2 and 3 without informing them, along with Rs.40,000/- kept in the house. But in the evidence, she has stated that on 26.07.2015, she left the house of PW-2 and 3 along with the money. ii) PW-1 left the house of PW-2 and 3 on 26.06.2015. PW-2 lodged the complaint on 10.07.2015 in Urva Police Station about missing of PW-1. Urva Police could trace PW-1 on 13.08.2015 and she was brought to Urva Police Station from Naregal Police Station on 14.08.2015. On the very same day, the Women Police Station official enquired PW-1 and came to know that she was subjected to sexual assault by the accused. Said police officers gave said information/statement to the Police Inspector of Urva Police Station i.e. PW-16. It appears, on the basis of the said statement, with the permission - 14 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 of jurisdictional Magistrate, the Investigating Officer has added Sections 376 and 506 of IPC and Section 4 of the POCSO Act in Cr.No.47/2015 which was already registered by the Urva Police Station. The said FIR was transferred to Naregal Police Station on 08.10.2015. Thereafter, Naregal police registered a case in their station bearing Cr.No.85/2015. There is no explanation for delay in registering the FIR by the concerned police or forwarding of the FIR by Urva Police station to Naregal Police station. iii) The alleged date of incident is stated to be 11.07.2015 but for the first time PW-1 – victim is said to have given complaint to police on 14.08.2015, i.e. nearly a month after the alleged incident. There is no proper explanation as to why she did not inform about the incident to her nearest relative, police or neighbors of the accused. The accused alleged to have committed rape on her on 11.07.2015. Thereafter also, she - 15 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 continued to stay in the house of the accused as if nothing had happened to her by the accused. The said conduct of PW-1 is very unnatural. iv) In Ex.P.8, it appears the victim herself has given statement before the medical officer stating that “she had gone with her boyfriend by name Sunil on 26.05.2015 at 8.00 a.m. to Gadag and stayed in his house for 15 days and yesterday she was brought by the police.” v) PW-1 to PW-3 contend that PW-1 was a minor, aged about 15 years at the time of alleged incident. The Investigating Officer has not secured any documents with respect to date of birth of PW-1 or even Investigating Office did not secure the medical report about the age of PW-1. It is pertinent to note that the Investigating Officer charge sheeted the accused for the offence punishable under Section 4 of the POCSO Act. To prove the said offence, first and foremost facts to be proved by the prosecution is that victim was - 16 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 minor as on the date of the incident. However her date of birth certificate or age proof was not at all produced and in the cross-examination, PW-23- Siddappa Bilagi admitted the same. It shows utter negligence of PW-23 in investigation of this case. vi) PW-1 in her evidence has stated that she has given statement before the Magistrate stating that the accused raped her. The said statement is marked at Ex.P1. In the said statement, nowhere it is alleged against the accused that he committed rape on her. On the contrary, she has stated that accused used to touch her and ill-treat her, because of that she went to Bollatti of Gajendragad, wherein grandmother of Yellamma was residing. Nowhere in Ex.P1 she has stated that on 11.07.2015 at 11.30 p.m., the accused forcefully raped her against her wish. vii) Exs.P.3, P.9 and P.16 show that place of incident is a small house consisting of kitchen, - 17 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 a room and a hall. PW-1 in her cross-examination stated that Durgappa, his wife and children were residing in the same house as on the date of incident. According to the statement of prosecution witnesses, i.e. neighbors of Durgappa given before the police, it is stated that upto 10.30 p.m, the naming ceremony was continued and incident had taken place at 11.30 p.m. If Durgappa and members of his family were residing in the same house, it is highly difficult to believe that they would allow accused to sleep in the room wherein PW-1 was sleeping and it is also difficult to believe that accused dare enough to have rape on the minor girl in the presence of Durgappa and his family. It is also doubtful that why the accused came and slept in the house of Durgappa when he has his own house near the house of Durgappa. viii) It is rightly noted by learned trial Judge that place of incident shown in the FIR was - 18 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 house of the accused. However, in the investigating report, the place of incident was shown as house of Durgappa. ix) The said Durgappa or members of his family were not examined. On the contrary, neighbors of the said Durgappa were examined, who turned hostile. There are no corroborative evidence to the evidence of PW-1 to show that accused entered the house of Durgappa during the night of 11.07.2015. x) The evidence of PW-1 is not corroborated by medical evidence. Except absence of hymen, no other facts were narrated to believe that PW-1 was subjected to sexual assault. The seminal stains were not detected in any of the articles seized by the police and sent to FSL for medical examination. xi) PW-1 in her entire evidence has not stated that she has given information about the - 19 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 commission of rape by the accused to any person including her parents. Even PWs-2 and 3 have not stated that PW-1 narrated about the incident to them. Under these circumstances, how could PWs-2 and 3 knew about the incident is not explained. xii) The conduct of PW-1 is highly doubtful. At the time of alleged rape, she knew that members of family of Durgappa were residing in the very same house. She did not shout for help from them. Incident had taken place around 11.30 p.m. She did not explain as to what happened after commission of rape on her. Whether both PW-1 and the accused were sleeping in the very same room or left the house of Durgappa, is not explained. Why PW-1 did not complain immediately about the incident to Durgappa or his family members’ is not explained. On the next day even she did not inform to Yellamma or any other neighbors of Yellamma - 20 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 about the incident and continued to stay in her house. In the cross-examination, PW-1 has stated that even she did not inform to one of the relatives of Yellamma, who enquired her about the incident. It is not the evidence of police of Naregal Police Station that on 13.08.2015, when she was brought to Naregal Police station, she had given statement before them about the incident. Therefore, her evidence given in the cross-examination of the accused that she gave statement before the Naregal Police about the incident is not corroborated by Station House Officer of Naregal Police station. Even PW-2 and 3, who were said to be present at the time of giving such statement before the Naregal police did not corroborate her evidence. Why she did not intimate the alleged incident to Naregal police when she had an opportunity to give such statement, is not explained. - 21 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 15. All the above facts create serious doubt about the case of the prosecution and evidence of PW-1. Therefore, her evidence is not reliable. Learned trial Judge has considered in detail about these facts and rightly came to a conclusion that evidence of PW-1 was not reliable. 16. The other witnesses examined by prosecution are not material witnesses. PWs-2 and 3 are hearsay witnesses and even they have not stated that PW-1 – Victim informed them about the incident. PW-1 has not stated in her evidence that she has informed about the incident to PWs-2 and 3. PWs-4 and 5 are witnesses to the spot mahazar and their evidence do not help the case of the prosecution to prove the guilt of the accused. PWs-6 and 7 are relatives of PW-1 and they are also hearsay witnesses. P.Ws-8, 9 and 10 are neighbors of accused and they have turned hostile to the case of prosecution. 17. PW-11 is the Doctor, who clinically examined PW-1 and given certificate. According to her opinion, the victim was not subjected to “recent sexual assault”. The alleged incident was said to have taken place - 22 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 on 11.07.2015 and PW-1 was produced before PW-11- Dr.P.Kishori on 14.08.2015 i.e nearly about 33 days after the incident. Under such circumstances, there may not be chances of getting any medical evidence in respect of alleged rape against PW-1. 18. PW-12 is an Engineer of PWD department who drew the map of the incident. He is also not a material witness to the incident. PWs-13 to 16 and 18 to 23 are official witnesses i.e. officials and officers of the police department, who have participated in the investigation. Since the evidence of material witnesses i.e. PW-1 is not reliable, the evidence of above said police officers and officials do not help the case of the prosecution. 19. On perusal of the materials placed before the Court, they indicate that the investigation was not done in accordance with law. For the first time, the incident was known to the police on 14.08.2015 i.e after the delay of 33 to 34 days from the date of incident. Even then also, they did not proceed to investigate the case immediately. On the contrary, Urva police said to have sent FIR to Naregal police - 23 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 in the month of October, 2015 i.e. nearly about two months after the knowledge of the alleged incident to the police. The Investigating Officer of the Naregal Police station also did not proceed to the investigation immediately in accordance with law. The Investigating Officer did not collect the date of birth certificate or the age proof of PW1 to prima facie prove that she was minor as on the date of incident. The investigation was done very casually. 20. In view of all these reasons, the prosecution has miserably failed to prove the guilt of the accused, much less, beyond reasonable doubt. Learned trial Judge has properly appreciated the evidence available on record and rightly held that prosecution was unable to prove the guilt of the accused beyond reasonable doubt. We have re-appreciated the evidence available on record, but do not find any reason to find fault with the findings of the learned trial Judge, which is not perverse or arbitrary. The learned trial Judge analysed the evidence and giving proper reasons, acquitted the accused. It does not call for interference by this Court. - 24 - NC: 2025:KHC-D:1915-DB CRL.A No. 100500 of 2019 21. For the above said reasons, we answer point No.1 in the negative and proceed to pass the following: ORDER The appeal is dismissed. The impugned judgment dated 30.04.2019, passed in Sessions Case No.2/2016, by the learned Additional District and Sessions Judge, Gadag is confirmed. Registry is directed to send back trial Court records along with copy of this judgment to the concerned trail Court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE Vb/CT-CMU LIST NO.: 1 SL NO.: 10