- 1 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ CRIMINAL APPEAL NO. 100108 OF 2017 (C) BETWEEN: MEHABOOBALI VAJEER BANGALORE S/O. VAJEER BANGALORE, AGED ABOUT 43 YEARS, OCC: WAS WORKING AS HEADMASTER GOVT. HIGH SCHOOL, HALAGERI, R/O. RANEBENNUR TALUK, HAVERI DISTRICT. …APPELLANT (BY SRI. S.S. YADRAMI, SENIOR COUNSEL FOR SRI. VADIRAJ P VADAVI, ADVOCATE) AND: STATE OF KARNATAKA BY HALAGERI POLICE, HALAGERI …RESPONDENT (BY SRI. M.B. GUNDAWADE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., PRAYING TO CALL FOR RECORDS OF THE BELOW AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCES DATED 18.09.2014 PASSED BY THE PRL.DISTRICT AND SESSIONS JUDGE CUM SPECIAL JUDGE HAVERI IN SPECIAL S.C.NO.02 OF 2013 AND CONSEQUENTLY ACQUIT THE APPELLANT FROM THE ALLEGED CHARGES AND HE BE SET AT LIBERTY. Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE R.NATARAJ) The convicted accused in Spl.SC.No.2/2013 on the file of the Principal District and Sessions Judge Cum Special Judge at Haveri has filed this appeal challenging the judgment of conviction dated 18.09.2014, by which he was convicted for the offences punishable under Sections 363 and 354 (A) of the Indian Penal Code (henceforth referred to as 'IPC' for short) read with Section 7 of the Protection of Children From Sexual Offences Act, 2012 (henceforth referred to as ‘POCSO Act’ for short). The appellant has also challenged the order of sentence by treating the period of custody undergone as the period of imprisonment for the offences punishable under Sections 363 and 354(A) of IPC and Section 7 of the POCSO Act, 2012 and to pay fine of Rs.1,000/- for the offences punishable under Section 363 of the IPC and Rs.250/- each for the offences punishable under Section 354(A) of the IPC and Section 7 of - 3 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 the POCSO Act, 2012, in default to undergo simple imprisonment for a period of one month. 2. (i) The case of the prosecution was that the complainant appeared before the respondent-police on 23.09.2013 at 7.00 p.m. and gave his statement before the police about commission of cognisable offences, which was transcribed in a computer in the police station. The prosecution claimed that the complainant informed the respondent-police that his daughter ( henceforth called as 'the victim girl') had gone to the school on 20.09.2013 at 8.30 a.m. Later at 3.00 p.m., she returned home and she looked terrified. When the complainant asked her why she returned home early, she told him that she had headache. Later in the evening the victim girl went to her maternal grandfathers house. At about 8.00 p.m. on the same day, the uncle of the victim girl informed the complainant that the accused who was a headmaster in the school, had misbehaved with the victim girl. The complainant therefore called him home to discuss about the issue. The complainant and his wife, and her uncle enquired with the victim girl and she disclosed that as she was involved in the sports activities in the school, the accused was talking to her - 4 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 frequently. She told that she was selected for district-level sports in discus throw and therefore the accused used to speak to her every day. She disclosed that on 18.09.2013, she went to the school at 9.00 o'clock as usual. The accused called her and told her to come to the school the next day as usual and told her to come to Ranebennur. She was told to call him after she reached Ranebennur. The accused gave slip containing his number and also gave Rs.100/- for bus charge. When the victim girl asked the accused as to why she had come to Ranebennur, he told her to come only if she had faith in him. On 20.09.2013, the victim girl left home at 8.30 a.m., and journeyed to Ranebennur. After she reached Ranebennur, she called the accused from a coin phone booth adjacent to Rajeshwari College. The accused then came to the place in a red coloured HYUNDAI-i20 car and took the victim girl towards Harihara. When the victim girl asked where they were going, the accused asked her to have faith in him and to remain quiet. Later they crossed Harihara and the accused stopped the car near a hotel. He went inside the hotel and later returned and took the victim girl into the hotel room and bolted the door. The accused told her that he would freshen up and the victim - 5 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 girl was told to be seated. Later the accused came out and suddenly held the hands of the victim girl and started pulling her around. The victim girl screamed out. The people who were nearby came and knocked the door and the accused opened it. The persons assembled there, scolded the accused who brought the victim girl to Ranebennur and dropped her near the Government Hospital. The victim girl then returned to her house and informed her grandfather. Later, the complainant and his grandfather held a Jamaat in Halageri and they were advised to lodge a complaint. (ii) Based on this statement, the respondent-police registered Crime No.107/2013 for the offences punishable under Sections 366 r/w 511, 363, 354 (A) of IPC and Section 10 of the POCSO Act, 2012. The respondent-police recorded a mahazar at the hotel and seized the car used by the accused. The victim was subjected to medical examination and the cloths of the victim girl as well as her vaginal swabs were collected. The accused was also subjected to medical examination and samples of smegma, nails scraps and blood samples were collected. The respondent-police recorded the statement of the panch witnesses and the statement of the victim under Section - 6 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 164 of the Code of Criminal Procedure (henceforth referred to as 'Cr.P.C.' for short), and the statement of other witnesses. The respondent-police then submitted a charge sheet for the offences punishable under Sections 354(A), 511, 363, 366 of IPC and Section 10 of the POCSO Act, 2012. A copy of the charge sheet was furnished to the accused. The trial Court framed charges for the offences punishable under Section 363 of the IPC and Section 10 of the POCSO Act, 2012 and 354(A) and r/w 511 of the POCSO Act. The accused pleaded not guilty and claimed to be tried. 3. In order to prove the charges against the accused, the prosecution examined PW-1 to PW-11 and marked Exs.P.1 to P.34 and M.Os.1 to 11. The incriminating evidence against the accused was read over as prescribed under Section 313 of Cr.P.C. The accused gave a statement in writing alleging that he was victimised by some politicians who were conspiring against him and were trying to transfer him. The accused did not lead any evidence in defence. 4. Based on the evidence of PW-9 the trial Court held that the accused had taken the victim girl to the hotel at - 7 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 Harihar and thereby had committed the offences punishable under Section 363 of IPC. It also held that the accused had committed an offence under Section 7 of the POCSO Act, Section 354(A) of the IPC and consequently, convicted him for the said offences and treated the period of custody as the period of imprisonment and imposed fine as stated above. Being aggrieved by the said judgment of conviction and order of sentence, the accused is before this Court. 5. The learned Senior Counsel for the accused contended that the victim girl turned hostile and likewise the complainant namely the father of the victim girl turned hostile. He contended that the only evidence relied upon by the trial Court to convict the accused was the evidence of PW-9, who was the Manager of Hotel at Harihar. He contends that PW-9 did not disclose that the victim girl was found in the company of the accused. On the contrary, he stated that the accused had brought a person who was wearing a burka. He therefore submits that there is nothing to show that it was a victim girl who was in the hotel room along with the accused. He submits that since the victim girl herself claimed that such an incident did not happen, the reliance placed by the trial Court to - 8 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 prosecute to convict the accused for the offence punishable under Section 7 of the POCSO Act, Sections 363 and 354(A) of the IPC was improper. He contends that the evidence was simply not sufficient to convict the accused for the aforesaid offences. 6. Per contra Additional Special Public Prosecutor submitted that the accused was undisputedly the Headmaster of the Government Urdu High School, where the victim girl was studying. He submitted that victim girl did not attend the school on 20.09.2013. He submits that PW-9 who was the manager of the hotel deposed that the accused checked into the hotel on the said date along with a burka-clad girl. He submitted that Ex.P.22 was the copy of the hotel register and Ex.P.22(a) was the relevant entry in the register, which indicated that the accused had checked into the hotel on 20.09.2013. He submitted that the telephone number of the accused was entered in the hotel register. It made it more than probable that the accused was present at the hotel on 20.09.2013. He submitted that the car of the accused was seized and was released to the interim custody of the accused. He therefore contends that the fact that the accused had taken - 9 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 the car to the hotel along with the victim girl is proved beyond doubt. He also contends that the accused was bound to explain in his statement under Section 313 or in his defence statement as to who was the girl in burka at the hotel. He submits that since the victim girl had recorded her statement under Section 164 of Cr.P.C and that she later turned hostile, it is quite possible that the accused had won over the victim girl and the prosecution witnesses. He therefore contends that the testimony of the PW-9 was sufficient to prove the guilt of the accused beyond out. 7. I have considered the submissions of the learned Senior Counsel for the accused and the learned Additional Special Public Prosecutor. 8. (i) The offence allegedly was committed by the accused on 20.09.2013. The offence came to light on 20.09.2013 itself, when the victim girl disclosed it to her grandfather. However, the complaint was lodged on 23.09.2013 and the reason for the delay mentioned in the complaint was that the complainant/PW-1 had allegedly arranged a Jamaat in the village, who advised PW-1 to lodge a - 10 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 complaint. However, the prosecution has failed to examine any villager to prove that a Jamaat was held and that the elders had advised PW-1 to lodge a complaint. (ii) PW-8 stated in his statement under Section 161 of Cr.P.C that Gafarsab Karimsab mukhandara, Ibrahim Hasanabba Safi, Makbalahamad Ibrahimsab Killedara, advised PW-1 to lodge a complaint but none of them were examined before the Court. PW-8 in his evidence, did not even mention about the Jamaat in his evidence before the Court. PW-1 also did not mention about the Jamaat held in the village. Therefore, the reason mentioned for the delay in lodging the complaint is not explained. (iii) PW-2 was the panch witness for the spot inspection, who turned hostile. PW-4 was also the panch witness for the seizure of the car as per Ex.P.4, whose evidence was no consequence. PW-5 was a Panch witness for the recovery of M.Os. 2, 3, 4 and 5 as per Ex.P.5 and his evidence was of no consequence. PW-6 was the victim girl, who turned hostile and she deposed that she did not go with the accused to the hotel at Davanagere. She claimed that she was at home on the said - 11 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 day. PW-7 was the mother of the victim girl, also turned hostile. PW-8 was the relative of the victim girl, who deposed that CW-8 and the victim girl were going to the same school and that the accused was the headmaster in the school. He claimed that he did not know anything about the offence committed by the accused. The star witness in the case was PW-9 who was the manager of the hotel. He identified the accused and claimed that the accused had taken a room in the hotel and had taken a burka clad girl in a red colour car. He deposed that the accused went to the hotel at 9.00 a.m. and stayed in the hotel till 4.00 p.m. He deposed that the accused and the burka clad girl left and that he did not know anything else other than that. He claimed that the police had obtained the extract of the hotel register and he identified the same as Exs.P.22 and P.23. Since there were inherent contradictions in the statement of the PW-9 under Section 161 of Cr.P.C and adduced evidence by him before the Court, he was treated as a hostile witness. The statement made by him under Section 161, was confronted to him which was denied. PW-10 was the Police Sub-Inspector who received a complaint at Ex.P.1 and registered Crime No.107/2013 and submitted it to the Court, - 12 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 which was marked as Ex.P.33. He deposed that he seized the car on 24.09.2013 as per Ex.P.4 and prepared spot panchnama as per Ex.P.3 and sent the victim girl for examination. He also submitted a request to the Magistrate to record the statement of the victim girl section 164 of Cr.P.C. He seized the clothes owned by the victim girl, which was marked as M.Os.1 to 11. He also secured the particulars of the birth of the victim girl from the school as per Ex.P.2. He visited the hotel where the accused had taken the victim girl and obtained the photocopies of the hotel register as per Ex.P.22. He also obtained the attendance register of the victim girl dated 20.09.2013 from the school where she was studying, which was marked as Ex.P.34. He recorded the statement of the girl as Exs.P.10 and P.11 and the statement of PW-7, PW-8 and PW-9. He also sent the seized articles to the Forensic Science Laboratory and obtained a report, which was marked as Ex.P.24. The medical examination reports of the accused and the victim girl were marked as Exs.P.25 to P.28. This witness denied the suggestion that the victim girl was at home on 20.09.2013. He admitted that the statement of any eyewitness that the victim girl had gone with the accused to the hotel in Davanagere was - 13 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 not recorded. He admitted that as per the FSL report, there was no sign of sexual intercourse by the accused with the victim girl. PW-11 was a Magistrate before whom the victim girl had recorded her statement. (iv) Therefore, the only evidence on record which was partly in favour of the prosecution was the evidence of PW-9, who was the manager of the hotel. PW-9 did not identify the victim girl as the one who was in the company of the accused on 20.09.2013. The victim girl had stated in her statement under Section 164 of Cr.P.C. that on hearing her screams, some persons knocked on the door of the hotel room and freed her. However, the prosecution has not procured the testimony of those persons. In view of the fact that the victim girl had turned hostile, it is not safe to rely upon the evidence of PW-9, to return a finding of fact that the prosecution had proved beyond reasonable doubt that it was the victim girl who was in the company of the accused on 20.09.2013. The evidence of PW-11-Magistrate who recorded the statement of the victim girl under Section 164 of Cr.P.C cannot also be the basis for conviction, as the victim girl turned hostile before the Court. In this regard it is profitable to refer to the judgment of the - 14 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 Hon’ble Apex Court in the case of R.Shaji v. State of Kerala - AIR 2013 SC 651, here it is held as follows: "14. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C. can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 Cr.P.C. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case. 15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a - 15 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak and Ors. v. State of Orissa and Ors., AIR 1999 SC 2565: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. and Ors., AIR 2000 SC 2901): (2000 AIR SCW 3150). 16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 Cr.P.C. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the witnesses may be influenced. (Vide: Mamand v. Emperor, AIR 1946 PC 45; Bhuboni Sahu v. King, AIR 1949 PC 257; Ram Charan and Ors. v. The State of U.P., AIR 1968 SC 1270; and Dhanabal and Anr. v. State of Tamil Nadu, AIR 1980 SC 628)." - 16 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 9. Under the circumstances, the judgment and conviction of the trial Court convicting the accused for an offence punishable under Section 363 and Section 7 of the POCSO Act was wholly unwarranted. The accused was clearly entitled to the benefit of the doubt and the prosecution failed to prove the commission of the offences by the accused beyond all reasonable doubt. 10. In view of the above, the following order is passed: ORDER i) The appeal is allowed. ii) The judgement dated 18.09.2014 passed by the Principal District and Sessions Judge Cum Special Judge at Haveri, in Spl.SC No.2/2013 convicting the accused/appellant for the offences punishable under Section 363 of IPC and Section 7 of the POCSO Act, is set aside and the consequent order of sentence dated 18.09.2014 is set aside. The accused is acquitted of the offences and is set free. - 17 - HC-KAR NC: 2025:KHC-D:9168 CRL.A No. 100108 of 2017 iii) Office is directed to forward a copy of this order along with the records to the trial Court for further needful. iv) Any bail bonds furnished stand discharged. Sd/- (R.NATARAJ) JUDGE BKN List No.: 1 Sl No.: 5