- 1 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 1786 OF 2019 (C) BETWEEN: PANIYERAVARA BABU @ANNU S/O MAARA, 29 YEARS LABOURER, NEHRU COLONY THITHIMATHI, VIRAJPET TALUK KODAGU DISTRICT. …APPELLANT (BY SRI.SUYOG HERELE E., ADVOCATE) AND: THE STATE OF KARNATAKA BY CIRCLE POLICE INSPECTOR Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 GONIKOPPAL VIRAJPET TALUK KODAGU DISTRICT - 571 216 …RESPONDENT (BY SMT.RASHMI PATEL, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 31.07.2019 AND ORDER OF SENTENCE DATED 08.08.2019 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU - MADIKERI, SITTING IN VIRAJPET IN SPL.C.NO.2/2018 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 363 AND 376 OF IPC AND SECTION 4 R/W 6 OF POCSO ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 CORAM: HON'BLE MR. JUSTICE S RACHAIAH ORAL JUDGMENT 1. This appeal is filed by the appellant being aggrieved by the judgment of conviction dated 31.07.2019 and order on sentence dated 08.08.2019 passed in Special Case No.2/2018 on the file of II Additional District and Sessions Judge, Kodagu-Madikeri, Sitting at Virajpet. 2. The ranks of the parties before the Trial Court will be considered henceforth for convenience. Factual matrix of the case: 3. It is the case of the prosecution that, on 13.03.2018 at about 10.00 p.m., the accused kidnapped the victim, who was a minor, from the house of the informant situated at Nehru Colony, Thithimathi, in his scooter bearing its No.KA-05-HL-3769 took her to the house of Kallira Jaya situated at Hosur Village. Both the accused and the victim were residing in the line house of Kallira Jaya, where the accused is stated to have committed sexual assault on the victim. - 4 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 4. It is further stated that, on 18.03.2018, the accused took the victim to T.K.T Estate of Poduvada Arapattu Village. There also stayed in the line house and abused her sexually inside the house. A case came to be registered against him by the complainant. Thereafter, he was arrested and the victim was secured. After conducting the investigation, submitted the charge sheet. 5. The Trial Court recorded the conviction for the offences under Sections 363, 376 of IPC and Sections 4 r/w 6 of the POCSO Act. 6. Heard Sri.Suyog Herele.E, learned counsel for the appellant and Smt.Rashmi Patel, learned High Court Government Pleader for the respondent – State. 7. It is the submission of learned counsel for the appellant that the appellant was a neighbour. There was a galata between the wife of the complainant and the mother of the appellant. In fact, the age of the victim has not been properly determined and the Trial Court while appreciating the evidence has failed to take note of the inconsistency. In fact, the age of the victim and the - 5 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 documents produced to demonstrate her age have not been properly appreciated. 8. It is further submitted that the school certificate produced by P.W.10 is not the document relevant for the purpose of considering or determining the age of the victim. In fact, the said specific age is contrary to the settled principle of law. Therefore, the judgment of conviction passed by the Trial Court is liable to be set aside and the appellant may be set at liberty. Making such submissions, learned counsel for the appellant prays to allow the appeal. 9. Per contra, the learned High Court Government Pleader for the respondent – State vehemently submitted that the school record produced by P.W.10 would indicate that the date of birth of the victim is 28.02.2002. As per the date of the incident, she was a minor. Hence, the said document would be relevant to determine the age of the victim. Hence, there is no infirmity in considering the said document. - 6 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 10. It is further submitted that the victim has supported the case of the prosecution. The medical evidence has also been appreciated properly. Hence, the judgment of conviction is required to be upheld. Making such submissions, the learned High Court Government Pleader prays to dismiss the appeal. 11. Having considered the rival submissions of the learned counsel for the respective parties, it is necessary to refer the judgment of the Hon'ble Supreme Court in the case of P.YUVAPRAKASH v. STATE REP. BY INSPECTOR ON POLICE1, wherein, the Hon'ble Supreme Court categorically held in paragraph Nos.11, 12, 13 and 14 as under: “11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows: "34. Procedure in case of commission of offence by child and determination of age by Special Court. 1 (2023) SCC Online 846 - 7 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person." 12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below: "94. Presumption and determination of age. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under - 8 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining – (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (1) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person." - 9 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: "(i) the date of birth certificate from the school, or the or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board". 14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or - 10 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.” 12. Having considered the dictum of the Hon'ble Supreme Court, now, it is relevant to refer the evidence of P.W.10, who was working as Head Mistress of the school where - 11 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 the victim had studied. She produced Ex.P25 and deposed that the date of birth of the victim was 28.02.2022 as per the records. Though, it is stated that the birth certificate of the victim is there, neither the Investigating Officer nor the school authority produced the said certificate to demonstrate the age. Hence, the age of the victim has not been proved properly to state that she was minor. 13. P.W.8 – the victim has supported the case of the prosecution, however, regarding her age is concerned, she did not disclose anything except stating that her age is 17 years as on the date of the alleged incident. 14. P.W.4 is stated to be the witness to the spot mahazar, marked as Ex.P4, has not supported the case of the prosecution. 15. P.W.3 stated to be the witness to the incident. He is supposed to depose that he had received information regarding the commission of offence, however, he has not supported the case. - 12 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 16. P.W.2 stated that the accused did not come to the estate along with his wife. 17. P.W.1 stated to be the worker at Coffee estate situated at Kalatmadu Village, he stated that he has not seen the accused along with the victim in the line house. 18. On analyzing the evidence of all the witnesses, both PWs.1 and 2 not supported the case of the prosecution where the accused had allegedly committed sexual assault on the victim. P.W.7 stated to be witness to the spot mahazar, namely Exs.P9, 10 and 11. Though, he stated to have affixed his signature to the said mahazar, he denied that both the victim and the accused had been to the estate and stayed there. Such being the fact, the conviction based on the evidence of P.W.8, who is the victim in the case, in my considered view, is not appropriate and proper. Hence, the judgment of the Trial Court is erroneous and not proper and the same is liable to be set aside. 19. In the light of the observation made above, I proceed to pass the following: - 13 - HC-KAR NC: 2025:KHC:37742 CRL.A No. 1786 of 2019 ORDER i) The Criminal Appeal is allowed. ii) The judgment of conviction dated 31.07.2019 and order of sentence dated 08.08.2019 passed in Spl.Case No.2/2018 by the II Additional District and Sessions Judge, Kodagu-Madikeri, Sitting at Virajpet, is set aside. iii) The appellant is acquitted for the offences punishable under Sections 363, 376 of IPC and Sections 4 r/w 6 of POCSO Act. iv) Bail bonds executed, if any, stand cancelled. v) The Registry is directed to communicate this order to the concerned jail authority forthwith. Sd/- (S RACHAIAH) JUDGE UN List No.: 2 Sl No.: 37