- 1 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 100274 OF 2021 (C) BETWEEN: RAGHAVENDRA S/O. MANJA CHALAWADI AGE. 25 YEARS, OCC. COOLI, R/O. BALEJADDI GRAMA, YELLAPUR. …APPELLANT (BY SRI. SHIVAKUMAR S. BADAWADAGI, ADVOCATE) AND: STATE OF KARNATAKA BY POLICE INSPECTOR, YELLAPUR POLICE STATION, RPTD. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD. …RESPONDENT (BY SRI. T.HANUMAREDDY, ADDL. GOVT. ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C., SEEKING TO, CALL FOR THE RECORDS, ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 04.08.2021 AND 05.08.2021 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I, UTTARA KANNADA, KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER POCSO) ACT IN SPL.C.NO.77/2018 FOR THE OFFENCE PUNISHABLE U/S 376, 506 OF IPC AND SECTION 6, 8 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.02.05 12:54:29 +0530 - 2 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 ORAL JUDGMENT 1. This appeal, filed under Section 374(2) of the Cr.P.C., is by the accused, challenging the judgment of conviction and the order of sentence, whereby the accused was convicted for the offences punishable under Sections 6 and 8 of the POCSO Act and Sections 376 and 506 of the IPC, and sentenced to undergo imprisonment for 11 years. 2. The prosecution’s case is as follows: The accused, knowing that CW5, the victim girl, was a minor, on 1.5.2018 at 11:30 p.m., when the victim girl had come to his house for preparations for his elder sister’s marriage and slept in the bedroom, entered the room where CW5 was sleeping. He touched her head and breasts, called her, and awakened her. When the victim girl started to inquire, the accused closed her mouth with his hand, lifted her, and took her to the kitchen room. There, he laid her on the ground, removed his pants, and forcibly removed her clothes. Despite the victim girl informing him that she was still studying in the 8th standard, and that he was her brother by relation, and refusing physical contact, the accused threatened her and forcibly committed sexual intercourse with her. Subsequently, from 1.5.2018 to 8.5.2018, the accused committed forcible sexual intercourse with CW5 eight times. After this, the victim girl missed her periods for two months and informed her parents about the incident. Upon learning that her parents intended to lodge a complaint, the accused, on 21.07.2018 at 1:30 p.m., when CW5 was alone in her house, visited her and persuaded her by promising to marry her. He gave her tablets, which caused her to have her periods. The accused then committed forcible sexual intercourse with CW5 again and threatened her, stating that if she informed anyone about the incident, he would kill - 3 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 her. Through these actions, the accused committed offences punishable under Sections 376 and 506 of the IPC and Sections 4, 6, 8, 10, and 12 of the POCSO Act. 3. To establish its case, the prosecution examined 21 witnesses (PW1 to PW21) and submitted documents as Exhibits P1 to P38. The material objects were marked as MO1 to MO7. The accused examined three witnesses (DW1 to DW3). After framing the points for consideration and evaluating the evidence on record, the trial Court found that the prosecution had established the guilt of the accused beyond all reasonable doubt and passed the impugned judgment of conviction and sentence. 4. Learned counsel for the appellant/accused argued that, as of the date of the incident, there is no substantive evidence to establish that the survivor (PW2) was a minor, and therefore, the conviction of the accused for the offence punishable under the POCSO Act lacks legal basis. He further argued that there is animosity between the complainant and the family members of the accused, and therefore, the prosecution’s case that the accused committed forcible sexual intercourse with the complainant at his house during the marriage ceremony is baseless and lacks credibility. The alleged incident took place between 1.5.2018 and 11.05.2018, and the FIR was lodged on 23.07.2018, after a lapse of more than two months, without any plausible explanation. In support he places reliance on following decisions: a) P. Yuvaprakash Vs. State Rep. by Inspector of Police1; b) State of Karnataka Vs. Kandappa S/o Vishnu Vaddar2. 1 2023 SCC Online SC 846 - 4 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 5. In response, the learned Additional Government Advocate for the respondent/State submitted that the evidence of the survivor (PW2) clearly establishes that the appellant/accused committed forcible sexual intercourse, and nothing was elicited in her cross-examination to disbelieve her statement. The evidence of PW2, along with the medical records, clearly establishes the guilt of the accused beyond all reasonable doubt. The trial Court, after considering the material evidence on record, has rightly passed the impugned judgment of conviction and the order of sentence. 6. After considering the arguments of learned counsel for the parties and perusing the trial Court records, the point that arises for consideration is whether the prosecution has established the guilt of the accused beyond all reasonable doubt and whether the impugned judgment of conviction and order of sentence is legally sustainable. 7. PW1, the mother of the survivor, filed the complaint on 23.07.2018, alleging that when her minor daughter (PW2) had been to the house of the accused to attend the marriage ceremony of the accused’s sister, between 1.5.2018 and 11.5.2018, the accused committed forcible sexual intercourse with her daughter in the kitchen of the house. PW1, in her evidence, supported the case of the prosecution. In her cross-examination, she admitted that she did not have a good relationship with the family members of the accused. She further admitted that, during a marriage, the house is typically full of people. She also admitted that she did not attend the marriage and filed the complaint based solely on the statement of her daughter (PW2). Additionally, she admitted that she discussed the matter with her sister, Kalavathi, who has been examined as PW13, before filing the complaint. 2 Crl.A.No.100520/2021, 27th June, 2024 - 5 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 8. PW2, the survivor, supported the case of the prosecution. In her examination-in-chief, she stated that the accused, by promising to marry her, induced her to engage in sexual intercourse. In cross- examination, she admitted that, at the time when the accused committed forcible sexual intercourse, she did not make any attempt to return home or complain to her mother. She further admitted that when her mother asked how she had gotten her period, she stated that the accused had given her tablets. Additionally, in cross-examination, she acknowledged that the accused owned two houses: one where all the people attending the marriage were sleeping and another where people were sleeping on the verandah. PW2 stated that when she was sleeping alone in one of the bedrooms, the accused forcibly took her to the kitchen and committed forcible sexual intercourse 9. PW3 and PW4 are police constables, and their evidence is of no relevance to the case. PW5 is the Public Development Officer, who stated that the house in which the incident took place belongs to the accused’s family. PW6 is the spot panch, but he did not support the prosecution’s case. However, the Investigating Officer supported the prosecution’s case by confirming that the panchanama was drawn at the house of the accused where the incident occurred. PW7 is a panch witness to the spot panchanama, but he also did not support the prosecution’s case. 10. PW8 is the mahazar witness, but he did not support the prosecution’s case. PW9 is the sister of the accused and the wife of the brother of the complainant, and she also did not support the prosecution’s case. In cross-examination, she stated that she did not have a cordial relationship with PW1, the mother of the survivor, and that a quarrel had occurred between PW1 and the accused. PW10 is the police constable who arrested the accused, and he supported the - 6 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 prosecution’s case. PW11 is a police constable, and her evidence is not of much relevance. Similarly, PW12 is a police constable, and her evidence is also of limited relevance. 11. PW13 is the sister of PW1 and did not support the prosecution’s case. In cross-examination, she stated that there was a dispute between PW1, the husband of PW6, and the accused. In her examination-in-chief, she categorically denied that PW1, after consulting her, lodged the first information report. Therefore, the claim that PW1 lodged the first information report after consulting PW13 has not been proved. PW14 is the doctor who conducted the radiological test on the survivor and submitted a report stating that the age of the survivor is between 17 and 18 years. PW16 is the police Sub-Inspector who recorded the statement of the victim under Section 161 of the Cr.P.C. 12. PW17 is the doctor who examined the survivor and issued a report stating that the hymen of the survivor was ruptured. In cross- examination, she stated that the rupture of the hymen could suggest the likelihood of sustaining injuries due to forcible sexual intercourse. She further mentioned that the hymen can be torn while riding a bicycle or due to sports activities. She clarified that the torn or ruptured hymen alone cannot be conclusive evidence of sexual assault. 13. PW20 is the teacher at the school where the survivor was studying and issued Ex.P.37, the school leaving certificate, which indicates that the date of birth of the survivor is 06.12.2004. PW21 is the Investigating Officer who conducted the investigation and submitted the final report to the jurisdictional trial Court. The prosecution has alleged that the survivor, PW2, visited the house of the accused between 01.05.2018 and 11.05.2018 to attend the marriage ceremony of the accused’s sister, during which the accused committed forcible sexual - 7 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 intercourse. The survivor has categorically admitted that accused No.1 committed forcible sexual intercourse on the first day itself, and she did not attempt to return to her home or inform her mother. She further submitted that throughout her stay at the house of the accused, she was subjected to forcible sexual intercourse and did not attempt to inform anyone in the house of the accused. 14. The incident was disclosed by the survivor to her mother, PW1, only on 23.07.2018, when the survivor missed her regular periods. The house of the accused consists of two bedrooms, a living room, a kitchen, and a washroom. The survivor has categorically admitted that many people were sleeping in the house of the accused, who had come to attend the marriage of the accused’s sister. Therefore, it is highly improbable that the survivor was provided with a separate bedroom. The statement of the survivor that the accused forcibly took her to the bedroom and committed sexual intercourse while she was sleeping alone cannot be believed. 15. The survivor, in her examination-in-chief, stated that consent was obtained by accused No.1 by promising to marry her. However, this statement contradicts her earlier testimony, where she mentioned that the accused forcibly had sexual intercourse with her against her will. PW2, the mother of the survivor, also admitted that she did not have a cordial relationship with the family members of accused No.1, which is corroborated by the evidence of PW9 and PW13. Therefore, the prosecution has failed to establish that accused No.1 committed forcible sexual intercourse. 16. The doctor who examined the survivor stated that the hymen of the survivor was ruptured at the time of the examination, and the rupture could have been caused by sports activities or riding a - 8 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 bicycle. PW14, the radiologist who conducted the radiology test, opined that the age of the survivor is between 17 and 18 years, as per Ex.P.25. 17. In Vinod Katara v. State of Uttar Pradesh (Vinod Katara), it was ruled that radiological examinations leave a margin of two years on either side of the age range prescribed by the test, irrespective of whether the ossification test of multiple joints is conducted. Therefore, it cannot be concluded that the prosecution has established beyond a reasonable doubt that the victim’s age was below 18 years at the time of the incident. 18. In the present case, the radiologist opined that the survivor’s age was between 17 and 18 years. Considering the margin of two years, the survivor’s age could be between 16 to 17 years or 18 to 19 years. Based on the school leaving certificate, the prosecution has stated that the date of birth of the survivor was 06.12.2004, and the alleged incident occurred between 01.05.2018 and 11.05.2018. According to the prosecution’s case, the survivor’s age was 14 years and above at the time of the incident. 19. The Apex Court, in the case of P. Yuvaprakash v. State Rep. by Inspector of Police (P. Yuvaprakash), held that to prove the age of an individual, the date of birth certificate from the school, matriculation certificate, or equivalent certificate issued by the concerned examination board should be preferred first. Only in the absence of these documents should the age be determined through an ossification test or any other medical age determination test conducted by the concerned authority, such as a committee, board, or court. The school certificate indicating the birth date of the survivor has no evidentiary value as it was not based on the certificate issued by the competent authority. - 9 - NC: 2025:KHC-D:1893 CRL.A No. 100274 of 2021 20. In light of the analysis of the proceedings, I am of the considered opinion that there is a suspicious doubt regarding whether accused No.1 committed forcible sexual intercourse with the survivor. The accused cannot be convicted based on such a suspicious doubt. Therefore, the impugned judgment of conviction and the order of sentence is not legally sustainable. Accordingly, I pass the following: ORDER i. The appeal is allowed. ii. The impugned judgment of conviction and the order of sentence dated 04.08.2021 and 05.08.2021 passed by the Additional District and Sessions Judge, FTSC-1, U.K. Karwar (Special Court for trial of cases filed under POCSO Act), in Spl.C.No.77/2018 is hereby set aside. iii. Appellant/accused is acquitted for the aforesaid offences. Appellant/accused to be released from judicial custody forthwith, if not required in any cases. iv. Bail bonds if any stands canceled. Registry is directed to communicate this order to the jail authority through electronic mail. Sd/- (HEMANT CHANDANGOUDAR) JUDGE JTR, AC Ct:vh List No.: 2 Sl No.: 27