- 1 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 13TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200109 OF 2018 (374(Cr.PC)/415(BNSS)) BETWEEN BASAYYA @ BASALINGAYYA S/O RACHAYYA HIREMATH AGE:28 YEARS, OCC: R/FO HUSSAINI CHILLA NEAR DR.GACHINMANI HOSPITAL TQ. & DIST.KALABURAGI – 585102 ...APPELLANT (BY SRI, CHAITANYAKUMAR C.M., ADV.) AND THE STATE OF KARNATAKA THROUGH MAHILA P.S. DIST.KALABURAGI, REPRESENTED BY SPP HIGH COURT OF KARNATAKA KALABURAGI BENCH-585 102. …RESPONDENT (BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1; R2 SERVED) THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C BY THE ADVOCATE FOR APPELLANT /ACCUSED PRAYING THAT THIS HON_BLE COURT MAY BE PLEASED TO, SET ASIDE THE JUDGMENT OF CONVICTION DATED 30.07.2018 PASSED BY THE II ADDL. SESSIONS JUDGE, KALABURAGI, IN S.C.(POCSO) NO.47/2015 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES P/U/S 366 OF IPC & SEC. 12 POCSO ACT. Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.03.2025, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THROUGH VIDEO CONFERENCING THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE S RACHAIAH CAV JUDGMENT (PER: HON'BLE MR. JUSTICE S RACHAIAH) 1. This appeal is filed by the appellant-accused No.1 being aggrieved by the judgment of conviction and order on sentence dated 30.07.2018 passed in Special Case (POCSO) No.47/2015 on the file of II Additional Sessions Judge at Kalaburagi, wherein the Trial Court held that accused is found guilty for the offence punishable under Section 366 of the Indian Penal Code (for short ‘IPC’) and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). 2. The rank of the parties in the Trial Court henceforth will be considered accordingly for convenience. Factual matrix of the case: 3. It is the case of the prosecution that, one Sumangala W/o Sharanayya Hiremath has lodged a complaint on 17.07.2015 before the respondent police stating that, on 07.07.2015, her daughter Soumya had left the house to - 3 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 go to college and did not return. The complainant and her family members have searched for Soumya and also enquired with the relatives about her whereabouts. However, they could not able to search her daughter Soumya. Having suspected that the accused might have kidnapped her daughter, she lodges a complaint against the accused. The respondent police have registered a case in Crime No.50/2015. After having conducted the investigation, submitted the charge sheet. 4. To prove the case of the prosecution, the prosecution examined 19 witnesses as PWs.1 to 19 and got marked 18 documents as Exs.P1 to P18. The Trial Court after appreciating the oral and documentary evidence on record convicted the accused for the offences stated supra. Being aggrieved by the same, the appellant has preferred this appeal. 5. Heard Sri.Chaitanyakumar C.M, learned counsel for the appellant and Sri.Jamadar Shahabuddin, learned HCGP for respondent No.1 - State. Respondent No.2 is served and unrepresented. - 4 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 6. It is the submission of the learned counsel for the appellant that the impugned judgment passed by the Trial Court is illegal and arbitrary and contrary to the law on record of the case. Therefore, the same is liable to be set aside. 7. It is further submitted that P.W.1 is the mother of the victim, she stated in the complaint that, her daughter has been eloped with the appellant. However, she was not in a position to state that her daughter was minor as on the date of the alleged incident. Such being the fact, it is improper to accept the evidence of the said witness to record the conviction for the offence under Section 366 of IPC. 8. It is further submitted that, the Doctor has been examined as P.W.13. She has stated in her evidence that, she conducted the examination of the victim and submitted the report which is marked as Ex.P13. As per the said report, the age of the victim is about 17 years. 9. It is further submitted that the statement of the victim ought to have been recorded, both in the form of audio - 5 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 and video, to substantiate the case. However, the Investigation Officer failed to record in such a way. Therefore, the said statement, which is said to be recorded, ought to have been vitiated. 10. It is further submitted that the Court below has committed a grave error in not appreciating the evidence properly, along with the documents, therefore, the impugned judgment has to be set aside. Making such submissions, the learned counsel for the appellant prays to allow the appeal. 11. Per contra, the learned High Court Government Pleader for the respondent No.1 - State vehemently justified the judgment of conviction and he further submitted that, P.W.1 and P.W.3 being the parents have stated that their daughter had been kidnapped by the accused. P.W.2 being the victim had stated in her evidence that, on 07.07.2015, when she had been to college around 09.30 a.m., the accused had kidnapped her from the college and went to Ramatirtha Temple at about 11 a.m. There, it is stated that she married the accused. However, no - 6 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 documents are produced to show that she married the accused. 12. It is further submitted that the evidence of all the witnesses would indicate that the victim being a minor girl had been kidnapped by the accused on the pretext of marriage and thereafter, she was traced by the respondent - police. P.W.10 - Principal of Satyam College, Gulbarga, issued a certificate as per Ex.P10 and also Ex.P11. Both the records would indicate that, she was a minor as on the date of the alleged incident. P.W.13 - Doctor had deposed that the victim was 17 years old as on the date of the alleged incident. She further stated that, she found no external injuries on the body of the victim. However, she noted that hymen was torn. Even the Doctor, who conducted a radiology test has opined that the age of the victim was between 16 - 17 years. Therefore, the findings of the Trial Court in recording the conviction are proper and there is no reason to interfere with the said findings. Hence, the appeal is required to be dismissed. Making such submissions, the learned HCGP for respondent No.1 – State prays to dismiss the appeal. - 7 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 13. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, it is appropriate to re-appreciate both facts and law for the purpose of arriving at a conclusion as to whether the findings of the Trial Court is proper or not. 14. It is the case of the prosecution that, the victim was kidnapped by the accused on 07.07.2015 at about 09.30 a.m., from her College and she was taken to Ramatirtha temple, there Mangalsutra was tied to her saying that he married her. Thereafter, the accused took her to Bengaluru, Goa and Solapur. They were staying together at different places, at different lodges and came back to the place. 15. P.W.1 being the mother of the victim has supported the case of prosecution by stating that, she was running a grocery shop and she was staying along with the victim and her husband in the house of the accused as a tenant. On 05.07.2015, she vacated the house of the accused and went to another house as a tenant. On 07.07.2015, - 8 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 she learnt that her daughter was not found in the college. After lodging the complaint, the respondent - police traced the victim. On enquiry of the victim, it is learnt that the accused had kidnapped her. 16. P.W.2 being the victim, has stated in her evidence that, she went along with the accused and married him at Ramatirtha Temple. After marriage, both herself and the accused went to Bengaluru, stayed there for 5 days in a lodge and then they went to Goa and stayed there in a lodge for 10 days. Thereafter, they went to Solapur. In her evidence, she did not disclose regarding sexual assault. However, on 31.07.2015, both herself and the accused returned to Gulbarga. When they reached Gulbarga, they have been apprehended by the respondent - police. She identified her statement made before the learned Magistrate, which is marked as Ex.P2. Though, in her evidence, it is suggested to her that, she was aged about 18 years as on the date of alleged kidnap, she denied that she was aged about 18 years and she was consistent that she had not completed 17 years. - 9 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 17. Further, she confessed in her statement made before the learned Magistrate that, she had been subjected to sexual assault when she was in Goa. These inconsistencies would indicate that the victim is not a sterling witness. Her evidence cannot be the sole basis to record the conviction. 18. In addition to the re-appreciation of evidence of PWs.1 and 2, it is appropriate to refer the evidence of P.Ws.5 and 6 who are witnesses to panchanama. P.W.5 – Nagaraj has not supported the case of the prosecution in respect of panchanama stated to be held at Goa, Thrimurthi Lodge. Similarly, P.W.6 also not supported the case. 19. As regards the age of the victim is concerned, she studied upto PUC. As per the evidence of P.W.10, the date of birth of the victim is 07.08.1998. However, P.W.1 was not aware about the actual age of the victim and she admitted in her evidence that, the date of birth was given not as per the birth certificate and she has not produced - 10 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 any relevant document to show the age proof of the victim. 20. P.W.13 – Dr. Nanda stated to have conducted examination of the victim after she was secured by the respondent - Police, has submitted a report as per Ex.P13. The said report would indicate that the age of the victim was above 16 years, below 17 years as on the date of medical examination. The prosecution has utterly failed to prove that P.W.2 had accompanied the accused and went to different places and stayed at different places to establish that she was kidnapped. It is needless to say that, she was secured by the police at Gulbarga bus stand. 21. Having considered the evidence of all the witnesses and also facts and circumstances of the case, I am of the considered opinion that, the Trial Court committed error in recording the conviction based on the evidence of witnesses who are not reliable and believable. Even the evidence of learned Magistrate cannot come to rescue the case of prosecution for the reason that she is only a - 11 - HC-KAR NC: 2025:KHC-K:3093 CRL.A No. 200109 of 2018 hearsay witness. Therefore, it is appropriate to set aside the judgment of the Trial Court. 22. Hence, I proceed to pass the following: ORDER (i) The Criminal Appeal filed by the appellant/accused No.1 is allowed. (ii) The judgment of conviction and order on sentence dated 30.07.2018 passed in Special Case (POCSO) No.47/2015 by the II Additional Sessions Judge at Kalaburagi, is set aside. (iii) The appellant/accused No.1 is acquitted for the offences punishable under Section 366 of IPC and Section 12 of POCSO Act. (iv) Bail bonds executed, if any, stand cancelled. Sd/- (S RACHAIAH) JUDGE UN List No.: 19 Sl No.: 1