- 1 - NC: 2025:KHC-D:2109 CRL.A No. 100530 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 100530 OF 2023 (C) BETWEEN: YALAPPA KUNCHIKORAWAR, S/O. SANNAYALLAPPA, AGE AGOUT 40 YEARS, OCC. BUSINESS, R/O. SHIGLE VILLAGE, TQ. LAXMESHWAR, DIST. GADAG-582210. …APPELLANT (BY SRI. MALLIKARJUN B.MADANALLI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT BENCH, DHARWAD,THROUGH VIDE LAXMESHWAR POLICE STATION, DIST. GADAG. 2. SMT. YALLAMMA W/O. DURGAPPA MODICARE, AGE ABOUT 59 YEARS, OCC. BUSINESS, R/O. AMINAGUD, PRESENT R/O. SHIGALLI VILLAGE, TQ. LAXMISHAWAR, DIST. GADAG-582210. …RESPONDENTS (BY SRI. T.HANUMAREDDY, AGA FOR R1 SRI. SANTOSH BIRANAGI, ADVOCATE FOR R2) THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 27.02.2023 AND SENTENCE DATED 03.06.2023 PASSED IN S.C.NO. 34/2020 BY THE IN THE COURT OF ADDL. DISTRICT AND SESSION JUDGE, GADAG FOR OFFENCE P/U/SEC. 376(2)(i) OF IPC AND U/SEC 6 OF POCSO ACT AND ACQUIT THE APPELLANT/ ACCUSED OF THE OFFENCE WITH WHICH HE HAS BEEN CONVICTED AND SENTENCE. B K MAHENDRAKUMAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.02.11 15:51:36 +0530 - 2 - NC: 2025:KHC-D:2109 CRL.A No. 100530 of 2023 THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL JUDGMENT 1. Heard the learned counsel for the appellant and the learned Additional Government Advocate for respondent No.1 – State. 2. The present appeal is filed under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the judgment of conviction dated 27.02.2023 and the order of sentence dated 06.03.2023, passed in S.C. No.34/2020 by the learned Additional District and Sessions Judge, Gadag. By the impugned judgment and order, the Trial Court convicted the appellant/accused for the offences punishable under Section 376(2)(i) of the Indian Penal Code, 1860 and Sections 5(j)(ii), 5(i), 5(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 3. The case of the prosecution is that the survivor was 13 years old at the time of the incident. The accused is the husband of the survivor’s elder sister. It is alleged that on 04.08.2019, at about 10:00 p.m., the accused forcibly removed the clothes of the survivor and, fully knowing that she was a minor, committed sexual intercourse by locking the door from inside. Furthermore, it is alleged that on multiple occasions, within the same house, the accused forcibly committed sexual intercourse with the survivor, which ultimately resulted in her pregnancy. - 3 - NC: 2025:KHC-D:2109 CRL.A No. 100530 of 2023 4. The prosecution further alleged that the accused induced the survivor and her mother to go to Savanur under the pretext of marriage and kept them in a hut, thereby continuing the unlawful act. 5. To substantiate its case, the prosecution examined 17 witnesses (P.Ws.1 to 17), marked 33 documents (Exs.P.1 to P.33), and produced five material objects (M.O.1 to M.O.5). Upon a detailed evaluation of the evidence, the Trial Court convicted the accused, holding that the prosecution had proved the charges beyond a reasonable doubt. 6. The learned counsel for the appellant contended that: • The prosecution failed to establish that the survivor was a minor at the time of the incident. • The statement of the survivor, recorded in her examination-in-chief, indicates that the sexual relationship between the accused and the survivor was consensual. • The impugned judgment of conviction and order of sentence is not legally sustainable, as the Trial Court has failed to appreciate the contradictions and inconsistencies in the prosecution’s case. 7. In response, the learned Additional Government Advocate for respondent No.1 – State contended that: • Medical evidence conclusively establishes that the survivor was 13 years old at the time of the incident. - 4 - NC: 2025:KHC-D:2109 CRL.A No. 100530 of 2023 • The DNA report (Ex.P.22) confirms that the accused is the biological father of the child born to the survivor, who subsequently passed away. • The prosecution has sufficiently proved that the accused, fully knowing that the survivor was a minor, committed forcible sexual intercourse, warranting no interference with the impugned judgment and order of conviction. 8. Upon hearing both parties and after perusal of the record, the primary question for determination is: “Whether the prosecution has proved the guilt of the appellant/accused beyond all reasonable doubt, and whether the impugned judgment of conviction and order of sentence passed by the Trial Court is legally sustainable?” 9. The survivor was examined as P.W.2. During her examination-in-chief, she stated that she did not know how to read and write and had come to court to secure the release of her husband, who was in judicial custody. She further stated that her husband had been in custody since he allegedly cheated her. However, her further examination-in-chief was deferred, and she was not examined further, as she subsequently passed away. 10. The mother of the survivor (P.W.3) did not support the case of the prosecution and turned hostile. In her deposition, she stated that she was not aware of the survivor’s age at the time of the incident, and the prosecution failed to elicit any material in her cross-examination to substantiate that the accused had forcibly committed sexual intercourse with a minor. - 5 - NC: 2025:KHC-D:2109 CRL.A No. 100530 of 2023 11. The Investigating Officer failed to secure documentary proof relating to the date of birth of the survivor from the competent authorities. 12. P.W.9, the medical examiner, in her report Ex.P.13, stated that, based on her examination, she was of the opinion that the survivor’s age was between 12 and 18 years. However, in her cross-examination, she admitted that: • If a person has molar teeth, they could be above 18 years of age. • She did not specify in Ex.P.13 whether the survivor had molar teeth. • No ossification test was conducted to determine the exact age of the survivor. 13. Ex.P.22, the DNA Report, issued by P.W.16, confirms that the DNA profile of the male baby matches that of both the accused and the survivor, thereby proving that the accused is the biological father of the child. 14. However, the opinion of P.W.9 is not conclusive proof of the survivor’s age, as it merely estimates her age between 12 to 18 years. Additionally, the prosecution failed to produce any independent documentary evidence to establish that the survivor was 13 years old at the time of the incident. - 6 - NC: 2025:KHC-D:2109 CRL.A No. 100530 of 2023 15. Furthermore, the mother of the survivor (P.W.3) stated that the survivor was 22 years old, which is corroborated by the survivor’s own statement that she was 22 years old. 16. The prosecution failed to establish that the accused had committed forcible sexual intercourse with the survivor. Although the DNA report confirms that the accused is the biological father of the child, mere proof of paternity does not establish rape unless it is shown that the sexual intercourse was without consent or that the survivor was a minor at the time. 17. In light of the above findings, the prosecution has failed to establish beyond reasonable doubt that: • The survivor was a minor at the time of the incident. • The accused had committed forcible sexual intercourse with the survivor. 18. Consequently, the impugned judgment of conviction and order of sentence passed by the Trial Court is not legally sustainable and is liable to be set aside. Hence, I pass the following: ORDER i) Accordingly, the criminal appeal is allowed. ii) The impugned judgment of conviction, dated 27.02.2023 and the order of sentence, dated 06.03.2023 passed in S.C. No.34/2020 by the - 7 - NC: 2025:KHC-D:2109 CRL.A No. 100530 of 2023 Additional District and Sessions Judge, Gadag, is hereby set aside, and the appellant/accused is acquitted of all the offences alleged against him. iii) The Jail Authorities to release the accused from the judicial custody forthwith, if not required in any other case. iv) Bail bonds executed, if any, stands cancelled. Pending I.As. do not survive for consideration and are disposed of accordingly. KMS List No.: 1 Sl No.: 164 Sd/- (HEMANT CHANDANGOUDAR) JUDGE