- 1 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.1311/2018 BETWEEN: SRI. MALLAPPA S/O MAHALINGAIAH AGED ABOUT 38 YEARS R/AT CHITHAGANAHALLI PAVAGADA TALUK TUMKUR DISTRICT-561 202 …APPELLANT (BY SMT. RATTIHALLI GEETA VEERANNA A/W SMT. GEETHA MISRA., ADVOCATES) AND: 1. STATE OF KARNATAKA BY PAVAGADA POLICE PAVAGADA-561 202 REP BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE-560 001 2. SMT. DHANALAKSHMI W/O SRI NARAYANAPPA AGED ABOUT 40 YEARS R/AT CHITTAGANAHALLI PAVAGADA TALUK TUMAKUR DISTRICT-561 202 …RESPONDENTS (BY SRI VIJAYAKUMAR MAJAGE., SPP-II FOR R1/STATE SRI H.S.SHANKAR, AMICUS CURIAE FOR R2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 05.02.2018 AND SENTENCE DATED 06.02.2018 Digitally signed by K S RENUKAMBA Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TUMKUR IN SPECIAL CASE NO.303/2015, CONVICTING APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 506 READ WITH SECTION 34 OF IPC, SECTION 6 OF POCSO ACT AND SECTION 3(2)(5) OF SC/ST (POA) ACT ETC. THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) This appeal is filed by accused No.2 in Special Case No.303/2015 on the file of III Additional District and Sessions Judge, Tumkur. 2. Appellant and accused Nos.1, 3 and 4 were prosecuted in Special Case No.303/2015 for the offences punishable under Sections 323, 324, 504, 506 r/w Section 34 of IPC, Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short) and Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘SC/ST (POA) Act’) on the basis of charge sheet filed by Pavagada Police in Crime No.121/2015 of their police station on the basis of the complaint/Ex.P1 filed by PW.1/mother of the victim. - 3 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 3. Appellant was accused No.2 in the said case. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. 4. The case of the prosecution on brief is as follows: As on 27.06.2015, i.e. the date of filing the complaint, PW.2 was aged 14 years. The accused and victim belonged to same village. Accused No.1 was aged 60 years. About 7 months prior to the date of the complaint, one day when victim was returning from the land, accused No.1 dragged her into his house, stuffing cloth into her mouth, committed sexual assault on her. On learning about the incident, accused No.2 blackmailed her that he will reveal the incident to her parents and villagers, he dragged her into his house and committed sexual assault on her. Accused Nos.1 and 2 thereafter committed repetitive sexual assault on the victim and threatened her not to reveal the incident. Ultimately, victim conceived, noticing physical changes in her, PW.1 took her to Ramakrishna Nursing Home. In the hospital, PW.5 upon examining the victim, revealed that victim was 7 months pregnant. When PW.1 and her husband went to the house of accused Nos.1 and 2 questioning their conduct, accused Nos.3 - 4 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 and 4 the relatives of accused Nos.1 and 2 assaulted PW.3/the husband of PW.1. He also criminally intimidated the victim and PWs.1 and 2. Thereafter, PW.1 filed complaint against the accused, based on which FIR was registered by PW.14. Victim belonged to Scheduled Caste. 5. Trial Court on hearing both sides framed the charges against accused Nos.1 to 4 for the offences punishable under Section 6 of the POCSO Act and Sections 323, 324, 504, 506 r/w Section 34 of IPC and Section 3(2)(v) of the SC/ST (POA) Act. As the accused denied the charges, trial was conducted. 6. In support of the case of prosecution, PWs.1 to 16 were examined, Exs.P1 to P19 and MO.1 were marked. During the trial, accused No.1 died. Therefore case against him stood abated. After their examination under Section 313 of Cr.P.C. accused Nos.1 to 4 did not lead any defence evidence. On hearing the parties, by the impugned judgment and the order the Trial Court acquitted accused Nos.3 and 4 of the charges for the offences punishable under Sections 323, 324, 504 read with Section 34 of IPC and convicted accused No.2 for the - 5 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 offences punishable under Section 506 read with 34 of IPC, Section 6 of the POCSO Act and Section 3(2)(v) of the SC/ST (POA) Act and sentenced the appellant/accused No.2 as follows: Sl. No Offence under Section Sentence Fine amount in Rs. Default sentence 1 506 R/w 34 of IPC SI for 1 year - - 2 6 of the POCSO Act RI for 10 years 25,000/- 3 3(2)(v) of the SC/ST (POA) Act Imprisonment for life 25,000/- SI of 2 years 7. The State has not preferred any appeal challenging acquittal of accused Nos.3 and 4. Therefore, the said judgment against them attained finality. Accused No.2 has preferred the above appeal questioning the order of conviction and sentence against him. 8. Heard both side. Submissions of Smt.Rattihalli Geetha Veeranna along with Smt.Geeta Misra, learned Counsel for the appellant: 9. There was delay in filing the complaint. The DNA report shows that accused No.1 is the biological father of the child and thus excluded accused No.2 being the father of the - 6 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 child. The house of accused No.2 was surrounded by several other houses. None of the independent witnesses were examined to prove the charges. Admittedly, accused No.2 was living with his wife and two children. Therefore, it is highly improbable that he committed sexual assault multiple times in such house. The Trial Court has committed error in relying on the evidence of PW.2/victim and PWs.1 and 3/her parents. The evidence of none of the witnesses shows that accused No.2 and other accused committed offences against victim for she belonging to scheduled caste. The trial Court therefore was in error in convicting accused No.2 for the aforesaid offences only on the ground that victim belongs to scheduled caste. Hence, the impugned judgment and order of conviction and sentence against accused No.2 be set aside and accused No.2 be acquitted for the aforesaid charges. 10. In support of their submissions, learned Counsel for the appellant relied on the judgment of Hon’ble Supreme Court in Raju @ Umakant Vs The State of Madhya Pradesh1. 1 2025 INSC 615 - 7 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 Submissions of Sri Vijayakumar Majage, learned SPP-II for respondent No.1 and Sri H.S.Shankar, learned Amicus Curiae for respondent No.2: 11. None of the accused disputed the fact of victim being minor. It was also not disputed that victim had conceived and delivered a child. The evidence of victim/PW.2 regarding sexual assault on her was cogent and consistent. Her evidence was further corroborated by the evidence of her parents, the Doctors PWs.5 and 10 who had examined the victim. There was no reason for the victim and the aforesaid witnesses to falsely implicate the accused in the case. By such evidence, the burden of the prosecution to prove the charges stood discharged and the accused failed to rebut the presumption under Sections 29 and 30 of POCSO Act. PW.2 who is the victim and PW.3 who is injured witness have supported the prosecution case and therefore their evidence has to be given due credence. The trial Court on judicious appreciation of the evidence has convicted and sentenced accused No.2. The same does not warrant interference of this Court. 12. On hearing both side and on examination of the material on record, the question that arises for consideration of - 8 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 this Court is “Whether the impugned judgment and order of conviction and sentence is sustainable? Analysis 13. PWs.1 and 3 are the parents of PW.2 the victim girl. Accused Nos.1 and 2 are the neighbours of PWs.1 to 3. The charge was that PW.2 was minor and accused No.1 was making sexually oriented gestures towards her, harassed her and ultimately, about 7 to 8 months, prior to 26.06.2015, dragging her into his house, threatening her and silencing her by stuffing cloth in her mouth, committed penetrative sexual assault on her. When accused No.2 came to know the same, threatening the victim that he will reveal the incident to her parents and other villagers, he also sexually abused her. Accused Nos.1 and 2 over a period of seven to eight months committed aggravated sexual assault on the victim multiple times leading to her pregnancy and ultimately the victim girl after filing the complaint, delivered a male child. It was also alleged that when PWs.1 and 3 questioned the acts of accused No.2, he assaulted PW.3 with brick and caused him simple injury. As victim belonged to Scheduled Caste, Section 3(2)(v) of SC/ST (POA) Act was invoked against the accused. - 9 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 14. The prosecution was required to prove the following:- (i) That PW.2 was aged below 18 years; (ii) She belongs to Scheduled Caste; (iii) That accused Nos.1 and 2 sexually abused her leading to her pregnancy and delivery; (iv) Accused Nos.1 and 2 criminally intimidated the victim at the time of commission of the offence; and (v) When PWs.1 and 3 had gone to question accused No.2, he assaulted PW.3 with brick. Reg. age of the victim: 15. To prove that the victim was minor, the prosecution relied on evidence of PW.6- Head master of Rastrapragathi High School, Kirlalahalli and Ex-P6 School Admission Record. PW.6 deposed that victim PW.2 studied in their school and as per her admission record, her date of birth is 25.10.2001 and on requisition of the police, he has issued Ex-P6 School Admission record. He was not cross-examined and Ex-P6 went un-controverted. Further, PW.2 victim in her deposition on 01.12.2016 stated her age as 17 years and her date of birth as 25.10.2001. PW.2's evidence regarding her age and date of - 10 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 birth was not denied in her cross-examination. Further, PW.5 Doctor, who examined PW.2 also stated that the age of the victim girl was 15 years and in her cross examination, the same was not disputed. Therefore, the Trial Court was justified in holding that at the time of the offence, the victim was minor. Reg. Caste: 16. In the complaint Ex-P1, it was stated that PW.1 belonged to Scheduled Caste. To show that the victim belonged to Scheduled Caste, the Investigating Officer collected Ex-P10/Caste Certificate from Tahasildhar, Pavagada Taluk. In the cross-examination of PW.12 or in the evidence of PWs.1 to 3, the fact that victim belonged to Scheduled Caste was not disputed. Therefore, Trial Court was justified in holding that victim belonged to Scheduled Caste. Reg. Charge under Section 6 of POCSO Act and Section 506 IPC: 17. The charge against accused Nos.1 and 2 was that they subjected the victim to sexual abuse multiple times threatening her of her life. Therefore, the prosecution was required to prove that the victim was subjected to aggravated - 11 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 sexual abuse by accused Nos.1 and 2 and she was criminally intimidated to yield to sexual act. 18. To prove this charge, the prosecution relied on evidence of PW.2/victim girl, PWs.1 and 3 her parents, PW.5/Doctor, who examined the victim girl, Exs.P2 and P5/the Medical reports and Exs-P17 and 18 DNA Test reports. 19. There is no dispute that DNA test reports included accused No.1 as the biological father and the victim as the biological mother of the child. The contention of the appellant- accused No.2 is that since accused No.1 was proved to be the biological father, he shall be excluded from the charge. Paternity test is not the sole proof of sexual abuse. When allegation is made against the accused of commission of sexual assault, the evidence of the victim and other evidence have to be examined. 20. In the present case, PW.2 pointed out accused Nos.1 and 2 both as culprits. According to her accused No.1 was the first one to abuse her and it was alleged that on seeing that accused No.2 took advantage of threatening the victim that if she does not yield to his lust, he will inform her parents - 12 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 and villagers, dragged her into his house and committed sexual assault. Thereafter, both accused went on committing sexual assault on her multiple times. When such allegation against accused No.1 was proved, that corroborates her allegation against accused No.2. 21. How the evidence of the victim of sexual assault has to be appreciated was dealt with by the Hon'ble Supreme Court in the case of State of Punjab v. Gurmit Singh and Others2. In the said judgment, it was held that testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. In the present case, it is no doubt true that the victim had not revealed the overt-acts of the accused till she was found to be pregnant of seven months when her mother/PW.1 finding her abnormal, took her to the hospital. The Court has to take note of the fact that when the incident took place, the victim was aged hardly 14 years, she was a 2 (1996) 2 SCC 384 - 13 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 village girl from socially and economically deprived background. In such condition, it should not be expected that she reacts or responds like an adult of ordinary prudence. 22. The evidence of PW.1/mother, PW.5/Doctor shows that on PW.1 finding the victim dull with some physical changes took her to PW.5/Medical Officer, Ramakrishna Nursing Home, Pavagada. There, on finding bulging stomach of the victim, PW.5 advised for Sonography. On taking such Sonography scan, the pregnancy of the victim was detected. Such evidence of PW.1 and PW.5 is corroborated by Medical Examination reports Exs-P2 and P5 and Ex.P5/the Ultra sound report of the victim. The trial Court on conducting preliminary enquiry about the competence of victim to testify and on satisfying about the same, has recorded her deposition. PW.2 in her evidence before the Court as well as in her statement under Section 164 Cr.P.C. as per Ex-P3 has categorically implicated accused No.1 and appellant/accused No.2 as perpetrators of the crime and that accused No.2 intimidated her that if she does not yield to him, he will inform her friends and parents about accused No.1 sexually abusing her. She has further deposed that when she was washing clothes near the tank of the village, he dragged - 14 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 her into his house, stuffed cloth into her mouth, committed aggravated sexual assault on her and also threatened her if she reveals the incident to others, he would kill her, therefore, she did not reveal the incident to others. By such evidence of PW.2, which is corroborated by the evidence of PWs.1 and 3 and medical evidence, initial burden of the prosecution to prove the charges stood discharged. 23. On such initial discharge of burden of proof, sections 29 and 30 of POCSO Act come into picture and from there arises presumption against the accused regarding his culpability and commission of the crime. The burden was on accused No.2 to rebut the presumption under Sections 29 and 30 of POCSO Act. Though much was argued that his house was surrounded by other houses and his wife and children were residing in the same house, he did not adduce any evidence to rebut the presumption. Even in the cross-examination of PWs.1 and 3, nothing was elicited to show that they had any motive, much less, strong motive to implicate accused Nos.1 and 2 in the case. Therefore, on re-appreciation of evidence, this Court does not find any error or illegality in the finding of the trial - 15 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 Court regarding commission of crime under Section 6 of POCSO Act and Section 506 IPC. Reg. Charge under Section 3(2) (v) of SC/ST(POA) Act: 24. Appellant-accused No.2 has been convicted by the trial Court for the charge under Section 3(2) (v) of SC/ST(PoA) Act on the ground that the victim belongs to Scheduled Caste and accused No.2 had knowledge of the same and still he has committed the offence against her which is punishable with imprisonment for more than 10 years. Question is whether mere knowledge of the accused that the victim of sexual assault belonged to Scheduled caste incurs liability of conviction for the offence under Section 3(2) (v) of the SC/ST (POA) Act. For the said purpose, it is necessary to refer to Section 3(2) (v) of SC/ST (POA) Act, as it stood in the year 2015 i.e., at the time of the offence. It reads as follows:- “Sec.3 Punishments for offences of atrocities:- (1) xxxxx (2) Whoever not being a member of a Scheduled Caste or a Scheduled Tribe,- xxxxx (v) commits any offence under the Indian Penal Code(45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property, on the ground that such person is a member of a Scheduled - 16 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. 25. Reading of the above provision shows that the said Section gets attracted if only in cases where commission of such offence is only on the ground of victim being a person belonging to Scheduled Caste or Scheduled Tribe. By Amendment Act 1 of 2016 to Section 3(2) (v) of SC/ST (POA) Act, mere knowledge of the offender that the victim is member of Scheduled caste or Scheduled Tribe entails him the liability for the offence under Section 3(2) (v) of SC/ST (POA) Act. Therefore, in this case, we have to examine, whether accused No.2 committed offence of sexual assault on the ground of victim being a member of Scheduled Caste. 26. The perusal of the complaint/Ex-P1 and evidence of PWs.1 to 3 shows that nowhere they have stated that accused subjected the victim to sexual assault due to caste oriented discrimination. In this regard, the Hon'ble Supreme Court in Raju @ Umakant’s case referred to supra, referring to many of its earlier judgments held that conviction under Section 3(2) (v) of SC/ST(POA) Act can be sustained as long as caste identity of the victim is one of the ground for occurrence of the - 17 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 offence. It was held, merely victim belonging to Schedule caste or Scheduled Tribe and accused having knowledge of the same, does not lead to the conclusion that he is guilty of offence punishable under Section 3(2) (v) of SC/ST (POA) Act, unless, it is shown that such offence was committed due to the caste identity of the victim. Since in this case, there is no evidence of appellant/accused No.2 committing crime on caste based identity of the victim, conviction under Section 3(2) (v) of SC/ST(POA) Act, is unsustainable and liable to be quashed. 27. Hence, the following: ORDER i. The appeal is partly allowed. ii. The impugned judgment and order of conviction and sentence against the appellant/accused No.2 in Spl.C. No.303/2015 passed by the III Addl. District & Sessions Judge, Tumkur, so far as it relates to offences punishable under Section 6 of POCSO Act and Section 506 IPC r/w 34 IPC is confirmed. iii. The impugned judgment and order of conviction and sentence against the appellant/accused No.2 for the - 18 - HC-KAR NC: 2025:KHC:41335-DB CRL.A No. 1311/2018 offence punishable under Section 3(2) (v) of SC/ST(PoA) Act is hereby set-aside. iv. Appellant/accused No.2 is acquitted of the charge for the offence punishable under Section 3(2) (v) of SC/ST(PoA) Act. v. The order of trial Court with regard to disposal of the materials objects, compensation to the victim and concurrent running of sentences is maintained. vi. The trial Court shall issue modified conviction warrant accordingly. vii. Communicate copy of this order to the trial Court and the concerned prison. viii. The Court places its appreciation on record for the able assistance rendered by Sri. H.S. Shankar, learned Amicus Curiae for respondent No.2. ix. Hand delivery of the operative portion of the order is permitted. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VENKATESH NAIK T) JUDGE KLY,MN CT: JL