- 1 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO.1830/2018 (C) BETWEEN: MR.VEERESH S/O DURGAPPA AGED ABOUT 24 YEARS R/AT KONDTAHALLI VILLAGE MOLKALMURU TALUK CHITRADURGA DIST KARNATAKA STATE NOW R/AT NO. NIL GROUND, 4TH CROSS AND 8TH MAIN VYALIKAWAL HOUSING SOCIETY NAGAWARA KADUGONDANAHALLI POLICE STATION AREBIC COLLEGE POST, BANGALORE …APPELLANT (BY SRI.PREREET JAIN, ADVOCATE FOR SRI.P.MAHESHA, ADVOCATE) AND: 1. STATE OF KARNATAKA BY K G HALLI P.S. R/BY SPP HIGH COURT PREMISES BANGALORE. 2. SMT.NAGAMMA W/O GANGAREDDY AGED ABOUT 35 YEARS R/O VAYALIKAVAL HOUSING SOCIETY LAYOUT, NEAR HKBK COLLEGE, A.C.POST, BENGALURU – 560045 … RESPONDENTS (BY SMT.SOWMYA R, HCGP FOR R1; SMT.B.V.NIDHISHREE, ADVOCATE ALONG WITH SRI.ROHAN SUBBAIAH, ADVOCATE FOR R2) Digitally signed by K S RENUKAMBA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 30.04.2018 PASSED BY THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN SPL.C.C.NO.453/2017-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 363 OF IPC AND SECTION 376 OF IPC READ WITH SECTION 5(m) READ WITH 6 OF POCSO ACT AND SECTION 307 OF IPC READ WITH 5(r) READ WITH 6 OF POCSO ACT AND ALSO SECTION 201 OF IPC. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) Challenging the judgment and order of conviction and sentence passed against him, the accused in Spl.CC.No.453/2017 on the file of LIII Additional City Civil and Sessions Judge, Bangalore, has preferred this appeal. 2. The appellant was sole accused in Spl.CC.No.453/2017 before the LIII Additional City Civil and Sessions Judge, Bangalore. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. - 3 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 3. The accused was prosecuted in Spl.CC No.453/2017 for the charges for the offences punishable under Sections 363, 376, 307 and 201 IPC and Sections 5(m),5(r) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) on the basis of chargesheet filed by K.G Halli police in Crime No.304/2017 of their police station. 4. The charge was that on 03.06.2017 at 02:00 a.m. when PW.2/victim girl, aged 5 years had come out of her house, accused a neighbour, with an intention to subject her to sexual assault, kidnapped her, took her to H.K.B.K. College ground and committed penetrative sexual assault on her. To screen the evidence of offence, he intended to kill her. Therefore, he assaulted her with cement brick on her head and fingers and caused her grievous injuries. When the victim fell unconscious, he carried her near the house of PW.4, laid her near the house of PW.4 and escaped. 5. On the complaint of PW.1, Crime No.304/2017 was registered and chargesheet was filed against the accused. Accused denied the charges. Hence trial was conducted. In support of the case of the prosecution, PWs.1 to 13 were examined, Exs.P1 to P12 and MOs.1 to 5 were marked. After - 4 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 his examination under Section 313 Cr.P.C, accused did not lead any defence evidence. 6. Trial Court on accepting the evidence adduced by the prosecution, has convicted him for the offences punishable under Section 376 IPC and Section 5(m) read with Section 6 of POCSO Act and sentenced to imprisonment for life and fine of Rs.10,000/-. For the offences punishable under Sections 307 and 201 IPC and Section 5(r) read with Section 6 of POCSO Act, the Trial Court has not imposed separate sentence. 7. Heard both sides. Submissions of Sri Prereet Jain, learned Counsel appearing on behalf of Sri P Mahesha, learned Counsel for the appellant/accused: 8(i) Initially complaint was filed against unknown person. The links to connect the accused to the crime are missing. The evidence of PW.10/police constable, who allegedly apprehended the accused, clearly shows that he had no clue about features or involvement of accused in the crime. Therefore the apprehension of the accused itself is doubtful. Trial Court only based on the evidence of the victim has convicted the accused. There was inordinate delay in recording - 5 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 statement of the victim under Section 164 Cr.P.C. There was also inordinate delay in recording the evidence of the victim before the trial Court. That clearly goes to show that victim was tutored. The accused was falsely implicated in the case. PW.1/mother of the victim, in her cross examination, showed her total ignorance about involvement of accused in the crime. Only on the theory of child getting scared on seeing the photo of the accused, accused is connected to the crime. The trial Court as well as the Magistrate, while recording victim’s evidence/statement under Section 164 Cr.P.C, have not followed the required protocol. Statement under Section 164 Cr.P.C of the child shows that she was not well acquainted with Kannada language, therefore she was given a translator. Whereas before the trial Court, no translator was given. Therefore, recording evidence of PW.2 before the trial Court is unacceptable. (ii) FSL report shows that no spermatozoa were detected on the cloths of the victim. Therefore, there was no scientific evidence to connect the accused to the crime. No DNA test was conducted to ensure that the samples of the victim and accused matched. No test identification parade was - 6 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 conducted for identification of the accused through the victim child. Therefore, the impugned judgment and order of conviction and sentence are unsustainable and liable to be set aside. The prosecution has not discharged its initial burden, therefore the trial Court was in error in raising presumption under Sections 29 and 30 of POCSO Act and foisting the burden of rebutting presumption on the accused. 9. In support of his submissions, he relied on the following judgments: (i) State of Madhya Pradesh vs. Balveer Singh1. (ii) Pradeep vs. State of Haryana2 (iii) Mahadevu @ Pappi vs. State of Karnataka3 Submissions of Smt. Sowmya R, learned HCGP for respondent No.1 and Smt. B.V. Nidhishree, learned counsel along with Sri. Rohan Subbaiah, learned counsel for respondent No.2: 10. The case was based on the evidence of PW.2/victim girl. There was a long time confirmation between her and the accused during the incident. She has unequivocally spoken about the overt act of the accused. Therefore, her evidence was rightly given due credence by the trial Court and the same was 1 2025 SCC Online SC 390 2 (2023) 19 SCC 221 3 ILR 2020 KAR 4569 - 7 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 in accordance with the legal principles enunciated by the Hon'ble Supreme Court in several judgments. Her evidence was further corroborated by the medical evidence of PW.8 and PW.9/the doctors who examined the accused and victim girl and the evidence of PW.1/mother of the victim. PW.3 is none else but the relative of the accused who deposed against the accused. The evidence of PW.4 was corroborated by the other witnesses. When the evidence of PW.2 was categorically corroborated by other evidence, the trial Court was justified in raising the presumption under Sections 29 and 30 of the POCSO Act. The accused failed to rebut the same. The impugned judgment and order is based on the sound appreciation of the evidence and law and the same does not warrant interference of this Court. 11. In support of their submissions, they rely on the judgement of Hon'ble Supreme Court in the case of Phool Singh v. State of Madhya Pradesh4. 12. On consideration of submissions of both side and on examination of materials on record, the point that arises for 4 (2022) 2 SCC 74 - 8 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 consideration is "whether the impugned judgment and order of conviction and sentence passed against the accused are sustainable under law."? Analysis: 13. Some of the admitted facts of the case are as follows; That PW.1 is the mother of PW.2. PW.1 and PW.3 were the neighbours. PW.3 is the relative of the accused. PW.2/ victim girl child was aged 5 years as on 03.06.2017. On 03.06.2017 at around 03.00 a.m. the child went missing from her house. The child was traced near the house of the PW.4 in a seriously injured condition. PW.4 on finding the child, informed the Police. PW.6/ASI of K.G. Halli Police Station on receiving such information approached the spot and shifted the injured child to Bowring Hospital. In the meantime, PW.1 and her relatives were searching for the child. When they came across PW.6 and his colleagues, they enquired them about the missing child. They were informed by Police that one injured child was found and the same has been admitted into Bowring Hospital. Therefore, they went to Bowring Hospital and found PW.2 being treated there. It is also not disputed that PW.2 at - 9 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 the time of admission was examined by PW.9/the Doctor. PW.9 had issued medical report as per Ex.P4. The injuries found on the victim child were also not disputed. 14. The case of the prosecution is that when PW.1 and her family members were sleeping, the child woke up and went outside, on sighting the child, the accused with an intention to commit sexual assault on her, kidnapped her and took her near to H.K.B.K College compound and committed penetrative sexual assault on her. To screen the evidence of offence, he intended to kill the child. Therefore, he hit her head with cement brick. When child was unconscious, he carried the child till the house of PW.4 and when dogs chased him, he dropped the child there and escaped. 15. On child regaining the consciousness, the photos of the accused were shown to her. Based on the information available, PW.10/head constable apprehended the accused and produced him before the investigating officer/PW.13. On interrogation, the involvement of the accused was revealed. Then he was subjected to medical examination and on investigation, charge sheet was filed. - 10 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 16. The case of prosecution was based on the evidence of victim girl/PW.2, medical evidence, evidences of PWs.1 and 3/ the mother and neighbour of the victim respectively. Much was argued regarding the alleged lapses in recording of the statement of PW.2/victim or the protocols to be followed in respect of recording the statement of the victim with reference to Section 35 of the POCSO Act. 17. Section 35 of the POCSO Act states that the evidence of the child shall be recorded within a period of 30 days from the date of taking of the cognizance of the offence and trial shall be completed within a period of 1 year. Such mandate is placed in the said section to achieve the object of the POCSO Act. The object of the POCSO Act is to protect the children from offences of sexual assault and to provide them a speedy remedy. However, Section 35 of POCSO Act did not intend to confer any benefit on the accused of the crime. If for any reason there is delay in recording the statement of victim child or in conclusion of the trial within the time specified therein or if at all there is delay on the part of investigating officer or the trial Court in recording the statement of the child or recording the statement/evidence of the child within the time - 11 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 specified therein, the accused cannot seek to interpret Section 35 of POCSO Act for his benefit. As already noted the accused has not disputed the injuries found on the child, as stated in Ex.P4 and as spoken to by PW.9/doctor. Reading of said evidence and the contents of Ex.P4 show that the victim had suffered the following injuries on her body; "INJURIES Scalp injuries 1. Cut wound size 0.2x0.2 cm over parieto occipital region. 2. Cut wound size 02.x0.2 cm over occipital region 3. Abrasion over occipital region 0.3X0.2cm Injuries to the left Land: - 4th finger - Avulsion of the distal phalanx. - 3rd finger - Deformity present, Nail bed avulsion present. - Swelling over the forehead, Bilateral cheek swelling present. Dried blood clots seen around the mouth." 18. Further, the child was found with the following injuries on her private parts. Fourchette - Linear Hymenal tear present Hymen - Tear in the fourchette extending upto the posterior vaginal wall, muscle deep measuring 2 cms. Vagina - Vaginal Mucosal tear present seen in the posterior vaginal wall at 5' 0 clock position corresponds to the hymenal tear. Discharge/Stain - All the injuries bleeds on touch. - 12 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 19. The records show that when the victim was brought to the doctor, those injuries were fresh. Having regard to such injuries, one can visualize that at that moment the child certainly requires some time to get herself healed and come out of such trauma. It is no doubt true that the investigating officer/PW.13 did not collect or produce the entire medical records of the child to show what was her condition post incident. However, the accused himself in the cross - examination of the investigating officer/PW.13 did not try to fish out any motive delayed recording of the statement of the victim child. 20. How evidence in a case of sexual assault has to be appreciated, if there are any lapses on the part of investigating officer or the prosecution, whether the entire evidence of the victim has to be discarded was expounded by the Hon'ble Supreme Court as long back as 1996 in the judgment in State of Punjab vs. Gurmit Singh and others5. While holding that the Court should conduct in such cases with utmost sensitivity in para 8 and 21 of the judgment, it is held as follows; 5 (1996) 2 SCC 384 - 13 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 "8. The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm, otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the bus adda is a travesty of justice. The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The trial court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a - 14 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 complaint of sexual offence is generally lodged. The prosecution has explained that as soon as Tirlok Singh PW 6, father of the prosecutrix came to know from his wife, PW 7 about the incident he went to the village Sarpanch and complained to him. The Sarpanch of the village also got in touch with the Sarpanch of Village Pakhowal, where in the tubewell kotha of Ranjit Singh rape was committed, and an effort was made by the panchayats of the two villages to sit together and settle the matter. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage etc. of their daughter. Tirlok Singh PW 6 truthfully admitted that he entered into consultation with his wife as to whether to lodge a report or not and the trial court appears to have misunderstood the reasons and justification for the consultation between Tirlok Singh and his wife when it found that the said circumstance had rendered the version of the prosecutrix doubtful. Her statement about the manner in which she was abducted and again left near the school in the early hours of next morning has a ring of truth. It appears that the trial court searched for contradictions and variations in the statement of the prosecutrix microscopically, so as to disbelieve her version. The observations of the trial court that the story of the prosecutrix that she was left near the examination centre next morning at about 6 a.m. was “not believable” as “the accused would be the last persons to extend sympathy to the prosecutrix” are not at all intelligible. The accused were not showing “any sympathy” to the prosecutrix while driving her at 6.00 a.m. next morning to the place from where she had been abducted but on the other hand were removing her from the kotha of Ranjit Singh and leaving her near the examination centre so as to avoid being detected. The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went home and narrated the - 15 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court overlooked that a girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. Therefore her informing her mother only on return to the parental house and no one else at the examination centre prior thereto is in accord with the natural human conduct of a female. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, - 16 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550 : 1990 SCC (Cri) 210] Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words: (SCC p. 559, para 16) “A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her - 17 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.” 21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They - 18 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." (Emphasis supplied) Reading of the above judgment shows that totally different approach shall be adopted while dealing with the cases of sexual offences, that too against children. 21. In the light of the above legal position, the evidence of PW.1 has to be analyzed in this case. Further, the delay in recording her statement cannot be blown out of proportion. 22. So far as the child’s statement dated 29.07.2017 under Section 164 Cr.P.C recorded by the Magistrate, since learned counsel for accused himself relied on the said statement, there is no difficulty in considering the same though that was not marked in the evidence. The said statement shows - 19 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 that the child implicated the accused as her predator. It is no doubt true that the Magistrate had not given a translator while recording statement under Section 164 Cr.P.C, but the very first statement shows that the victim had said that she knows Kannada language also to some extent. While recording the evidence before the Court, the child had not raised such concern. Therefore, there is no merit in the contention that the child was not able to depose in Kannada. Moreover, the accused himself had not raised any such contention in the cross-examination of PW.2. 23. So far as the recording of the evidence of the child witness is concerned, counsel for the accused relied on the judgment of Balveer Singh's case referred to Supra. In para 58 of the said judgment, the Hon'ble Supreme Court has summarized the law relating to the evidence of the child witness, which reads as follows: "58. We summarize our conclusion as under:— (I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly. (II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the - 20 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him. (III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion. (IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court. (V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence. (VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others. (VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever. - 21 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 (VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case. (IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition. (X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication. (i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the - 22 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act. (ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under:— • Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient. • Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross- examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful - 23 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural. (XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness. (XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness." (Emphasis supplied) 24. The above judgment shows that the preliminary examination has to be conducted while recording the evidence of the child witness and Court has to record its satisfaction about child understanding the duty of speaking truth and the ability of the child to respond to the questions and Court has to observe the demeanour of the child. It is to be noted that the - 24 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 said judgment was rendered where the child witness was not the victim, but child was a daughter of the victim. 25. In the present case, the child herself is a victim. The perusal of evidence of PW.2/child victim shows that the trial Court conducted an enquiry by putting preliminary questions to the witness about its ability to understand and respond. The demeanour of the child witness was recorded, particularly the trial Court has recorded its satisfaction on such aspects on conducting the preliminary examination. Therefore, there is no merit in the contention that the evidence of PW.2 was not recorded in accordance with the law laid down in Balveer Singh's case referred to supra. 26. The trial Court has also ensured the protocol to be followed while recording the statement of the victim child under the POCSO Act by ensuring that the child is not confronted with the accused directly and the evidence of the child was visible and audible to the accused on providing a digital screen. Simply because the mother of the child was sitting with her, it cannot be said that victim child was tutored, as such support was required to make the child comfortable, having regard to the - 25 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 trauma the child once faced in the hands of the accused and recollecting the same at the time of giving evidence. To assess credibility of her evidence it is beneficial to extract the deposition of the child, which reads as follows: “C£ÀĪÀÄwAiÉÆA¢UÉ ªÀÄÄRå «ZÁgÀuÉ: ªÀiÁ£Àå ¦.¦.AiÀĪÀjAzÀ: £À£Àß ¨ÉgÀ¼ÀÄ F jÃw PÀmï ªÀiÁrzÀÄÝ «ÃgÉñï. «ÃgÉñï PÀ°è¤AzÀ £À£Àß ¨ÉgÀ¼ÀÄUÀ¼À£ÀÄß eÉfÓzÀ. CªÀ£ÀÄ PÀ°è¤AzÀ £À£Àß vÀ¯ÉAiÀÄ ªÉÄïɯÁè ºÉÆÃqÉzÀ£ÀÄ. «ÃgÉÃ±ï £Á£ÀÄ ªÀÄ®VzÁÝUÀ £À£ÀߣÀÄß £ÀªÀÄä ªÀģɬÄAzÀ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÁÝ£É. DvÀ £À£ÀߣÀÄß VqÀzÀ §½ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV £À£Àß ¨ÁAiÀÄ£ÀÄß ªÀÄÄaÑzÀ. DgÉÆæ £À£ÀߣÀÄß PɼÀUÉ ªÀÄ®V¹ F jÃw ¨Á¬Ä ªÀÄÄaÑzÀÝ. DgÉÆæ £À£ÀߣÀÄß VqÀzÀ §½AiÉÄà ªÀÄ®V¹zÀ. DgÉÆæ £À£Àß JzÉAiÀÄ ¨sÁUÀzÀ°è VAfzÀ JAzÀÄ DPÉAiÀÄ JzÉAiÀÄ ¨sÁUÀªÀ£ÀÄß vÉÆÃj¹gÀÄvÁÛ¼É. DgÉÆæ E¯Éè¯Áè dfÓzÀ JAzÀÄ ¸ÁQë vÀ£Àß ºÉÆmÉÖAiÀÄ PɼÀ¨sÁUÀªÀ£ÀÄß vÉÆÃj¹gÀÄvÁÛ¼É. DgÉÆæ D jÃw ªÀiÁrzÀÝjAzÀ vÀ£ÀUÉ £ÉÆêÁ¬ÄvÀÄ JAzÀÄ ¸ÁQë DPÉ ªÀÄÆvÀæ ªÀiÁqÀĪÀ eÁUÀªÀ£ÀÄß DPÉAiÀÄ PÉʬÄAzÀ vÉÆÃj¹gÀÄvÁÛ¼É. FUÀ vÉÆÃj¹zÀ ¥sÁæPï £À£ÀßzÉÃ. ¸ÀzÀj ¥sÁæPÀ£ÀÄß £Á£ÀÄ CªÀvÀÄÛ ºÁQPÉÆArzÉÝ. ¥sÁæPÀ£ÀÄß £Á£ÀÄ FUÁUÀ¯Éà ªÀÄÄ.ªÀiÁ.1 JAzÀÄ UÀÄwð¸À¯ÁVzÉ. ªÀÄÄ.ªÀiÁ.1 £ÀÄß ¥Àj²Ã°¸À¯ÁV CzÀgÀ°è C®è°è gÀPÀÛzÀ PÀ¯ÉUÀ¼ÀÄ PÀAqÀħA¢gÀÄvÀzÉ. VqÀzÀ §½ EzÀÝ £À£ÀߣÀÄß ¥ÉưøÀgÀÄ £ÉÆÃrzÀgÀÄ. £ÀAvÀgÀ £À£ÀߣÀÄß ¥ÉưøÀgÀÄ D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. D ªÉüÉUÉ «ÃgÉñÀ ¸ÀÞ¼ÀzÀ°è EgÀ°®è. DgÉÆæAiÀÄ£ÀÄß ¸ÁQëUÉ vÉÆÃj¹zÁUÀ, DPÉ UÁ§j¬ÄAzÀ ªÀÄÄR ªÀÄÄaÑPÉƼÀÄîwÛzÁݼÉ. ¥Ánà ¸ÀªÁ®Ä: DgÉÆæ ¥ÀgÀ ²æà JA.PÉ.© ªÀQîjAzÀ:- 2) F jÃw ºÉüÀÄ JAzÀÄ £À£ÀUÉ AiÀiÁgÀÆ ºÉýPÉÆnÖ®è. DgÉÆæ FUÀ J°è EzÁÝ£É JAzÀgÉ ¸ÁQë C¼ÀÄwÛzÁݼÉ. «ÃgÉÃ±ï £À£ÀUÉ vÉÆAzÀgÉ ªÀiÁr®è CAzÀgÉ ¸ÁQë ¸ÀĪÀÄä£É EzÁݼÉ. DgÉÆæAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ PÀgɹ vÉÆÃj¹zÁUÀ, ¸ÁQëAiÀÄÄ vÀ£Àß ªÀÄÄRªÀ£ÀÄß ¥ÀPÀÌPÉÌ wgÀÄV¹ zÀÄ:TvÀ¼ÁVzÁݼÉ. DgÉÆæ F UÁAiÀÄUÀ¼À£ÀÄß ªÀiÁr®è CAzÀgÉ ¸ÀjAiÀÄ®è.” - 26 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 27. In fact the Trial Court followed the protocol by screening the accused from the sight of the victim child and only by showing his photo. But counsel for the accused himself in the cross-examination confronted the accused to the child and the court recorded the demeanour of the child. The child turned her face and became sad and she was crying. This evidence was corroborated by the evidence of PW.1/ mother of the victim, where she says that after child regaining the consciousness, the photo of the accused was shown to her and she became panic on seeing the photo and she revealed how the accused crushed her head and fingers. Even in the cross- examination of PW.1, she has stated that the accused has committed the crime against the victim in the alleged manner. The evidence of PWs.1 and 2 was further corroborated by the evidence of PW.9/doctor who examined the child and issued medical examination report as per Ex.P4. 28. PW.9 in the chief examination has stated that when the child was brought to the hospital she was not in a position to speak. Therefore, history was taken from her mother. Her evidence shows that before PW.9, PW.1 gave the history that - 27 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 when she was sleeping with the child on the day of incident at 02.00 a.m. the child went missing. As deposed by PW.6 and on enquiry she came to know about the admission of the child in the hospital. The evidence of PW.9 further shows that the child had the injuries on the head and injuries on her private parts and those injuries corroborated by the narration of the incident by PW.2/the victim child. This evidence of PW.9 was further corroborated by the evidence of PW.8/Doctor, who examined the accused on the requisition of the police on 04.06.2017, i.e. the very next day of the incident and Ex.P3 the report submitted by him. Ex.P3 states that the following injuries were found on the accused. "(i) two abrasions on middle and left side of the neck measuring 1 c.m. X 0.2 c.ms. (ii) 4 c.m below the left side of the collar bone, 3 abrasions are present measuring 1 c.m. X 0.5 c.m,. (iii) Bite marks are found on left elbow. Time period of the above injuries is 6 to 12 hours prior to the examination. (iv) An injury measuring 1 c.m. X 0.5 c.m. on Frenulum of the penis. (v) Lugol's Iodine Test positive for he involving in sexual activity." On local genital examination, the doctor opined that there was evidence of signs of recent sexual intercourse. - 28 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 "2. On local genital examination, evidence of signs of recent sexual intercourse: Present/Absent. d£À£ÁAUÀzÀ ¥ÀjÃPÉë¬ÄAzÀ FvÀ EwÛÃZÉUÉ 6-12 UÀAmÉUÀ¼À CAvÀgÀzÀ°è ¯ÉÊAVPÀ QæAiÉÄAiÀÄ°è vÉÆqÀVzÀÝ §UÉÎ ¤±Á£ÉUÀ¼ÀÄ PÀAqÀÄ §A¢zÉ/PÀAqÀħA¢®è. 3. From the physical and genital examination of «gÉÃ±ï ©£ï zÀÄUÀð¥Àà there is nothing to suggest that the person is incapable of performing sexual intercourse. FvÀ£À zÉÊ»PÀ ºÁUÀÆ d£À£ÁAUÀzÀ ¥ÀjÃPÉë¬ÄAzÀ £À£Àß C©ü¥ÁæAiÀÄzÀ°è FvÀ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ°è vÉÆqÀUÀ®Ä C±ÀPÀÛ J£ÀߧºÀÄzÁzÀ CA±ÀUÀ¼ÁªÀÇ PÀAqÀħA¢®è. " In the column meant for local genital examination of male, PW.8/doctor has made the following observations; "Male: Development of Genitalia: ¥ÀÄgÀĵÀ d£À£ÁAUÀzÀ ¨É¼ÀªÀtÂUÉ: ¸ÀºÀd ¹ÜwAiÀÄ°èzÉ. Pubic Hairs: d£À£ÁAUÀzÀ §½AiÀÄ gÉÆêÀÄUÀ¼ÀÄ: MAzÀPÉÆÌAzÀÄ CAnPÉÆAr®è. Shaft of the Penis: ²±ÀßzÀ GzÀÝUÀ®: 8.2 ¸ÉA.«ÄÃ) (3.2 ¸ÉA.«ÄÃ. GzÉæÃPÀ«gÀĪÀ ¹ÜwAiÀÄ°èzÁÝUÀ PÀAqÀÄ §A¢zÉ. Glans Penis: ²±ÀßzÀ vÀÄ¢: PÉA¥ÁVzÉ. Smegma: fUÀÄlÄ: PÀAqÀÄ §A¢zÉ/E®è. Frenulum of the Penis: ²±ÀßzÀ »A§¢ ZÀªÀÄðzÀ°è 1 ¸ÉA.«ÄÃ) (0.5 ¸ÉA.«Äà GzÀÝUÀ®zÀ UÁAiÀÄ«zÀÄÝ, £ÉÆë¤AzÀ PÀÆrgÀÄvÀÛzÉ. Discharge/ Stains: zÀæªÀ PÀ¯ÉUÀ¼ÀÄ: PÀAqÀÄ §A¢zÉ/ E®è. Urethra: ªÀÄÆvÀæ£Á: PÉA¥ÁVzÉ. Lugol's Iodine Test: +ve ¥Á¹nªï ªÀgÀ¢ §A¢gÀÄvÀÛzÉ. ¥ÀjÃPÁë PÁ®PÉÌ FvÀ ¯ÉÊAVPÀ QæAiÉÄAiÀi°è vÉÆqÀVzÀÝ §UÉÎ ¤±Á£ÉUÀ¼ÀÄ PÀAqÀÄ §A¢ªÉ. OPINION: 1. From statement, Physical, Dental and Radiological examination of «gÉñï I am of the opinion that the age of the individual is between EªÀgÀ ¸Àé-ºÉýPÉ, zÉÊ»PÀ ¨É¼ÀªÀtÂUÉ, zÀAvÀUÀ¼À GzÀâªÀ ºÁUÀÆ PÀë-QgÀtzÀ°è PÀAqÀÄ §AzÀ C¹ÜÃPÀgÀtzÀ DzsÁgÀzÀ ªÉÄÃgÉUÉ EªÀgÀ ªÀAiÀĸÀÄì 24 E¥ÀàvÁß®ÄÌ Years JAzÀÄ ¥ÀjUÀt¸À¯ÁVzÉ. 2. On local genital examination, evidence of signs of recent sexual intercourse: Present/Absent: d£À£ÁAUÀzÀ - 29 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 ¥ÀjÃPÉë¬ÄAzÀ FvÀ EwÛÃZÉUÉ 6-12 UÀAmÉUÀ¼À CAvÀgÀzÀ°è ¯ÉÊAVPÀ QæAiÉÄAiÀÄ°è vÉÆqÀVzÀÝ §UÉÎ ¤±Á£ÉUÀ¼ÀÄ PÀAqÀÄ §A¢zÉ/ PÀAqÀħA¢®è. 3. From the physical and genital examination of «gÉÃ±ï ©£ï zÀÄUÀð¥Àà there is nothing to suggest that the person is incapable of performing sexual intercourse. FvÀ£À zÉÊ»PÀ ºÁUÀÆ d£À£ÁAUÀzÀ ¥ÀjÃPÉë¬ÄAzÀ £À£Àß C©ü¥ÁæAiÀÄzÀ°è FvÀ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ°è vÉÆqÀUÀ®Ä C±ÀPÀÛ J£ÀߧºÀÄzÁzÀ CA±ÀUÀ¼ÁªÀÇ PÀAqÀħA¢®è. " 29. Finally, the doctor/PW.8 has opined that on local genital examination, the person examined was found to have indulged in sexual activity 6 to 12 hours before his examination. This evidence of PW.8 was not impeached in his cross examination. Thus, the evidence of PW.2 was corroborated by the medical evidence and evidence of PW.1/mother of victim. PW.3 though is a hearsay witness, she is the relative of the accused himself. She also stated that she joined PW.1 in searching the victim and in that process they met police and police informed them about the admission of the victim in Bowring Hospital. She also spoke about the injuries found on the fingers, head of the victim and that later she learnt about the accused committing sexual assault on victim. That corroborates the evidence of PWs.1 and 4 and the medical evidence also. When the evidence of all the above said witnesses corroborated with each other and evidence of PW.2 was unimpeachable, the trial Court was justified in raising the - 30 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 presumption under Sections 29 and 30 of the POCSO Act. As rightly pointed out by the trial court, the accused did not rebut such presumption. 30. When the evidence of the victim was of sterling character and that was corroborated by the other evidence also, the fact of not conducting DNA test etc., is immaterial. The accused failed to explain the injuries found on his body as noted by the doctor/PW.8. Therefore the judgment in Pradeep’s case referred to supra and other judgments relied on by the counsel for the accused do not advance his case. Therefore, the presumption was not rebutted by the accused. 31. In the light of the above facts and circumstances the impugned judgment and order of conviction does not suffer any infirmity or illegality. The appellant/accused, who had already married and having children has committed a barbaric act against the innocent child aged 5 years without even a pinch of compassion. Therefore, it cannot be said that the sentence imposed is on the higher side. The offence shocks the conscience of the society and trial Court was justified in imposing life imprisonment. - 31 - HC-KAR NC: 2025:KHC:34542-DB CRL.A No.1830/2018 There is no merit in the appeal. Hence the following: ORDER Appeal is dismissed. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (M.G.S. KAMAL) JUDGE PKN,RU List No.: 1 Sl No.: 14