- 1 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE H.P.SANDESH AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.1324 OF 2023 (A) BETWEEN: SMT. MUMTAZ W/O. SYED AMEER PASHA AGED ABOUT 44 YEARS RESIDENT OF ULLERAHALLI VILLAGE TEKAL HOBLI, MALUR TALUK KOLAR-563 137. …APPELLANT (BY SRI VIJAY KUMAR J., ADVOCATE, FOR SMT. VANITHA DEVI V.) AND: 1. SHIVA @ SHIVA KUMAR S/O. VENKATESHAPPA AGED ABOUT 24 YEARS RESIDING AT ULLERAHALLI VILLAGE TEKAL HOBLI, MALUR TALUK KOLAR-563 137. 2 THE STATE OF KARNATAKA BY THE CIRCLE POLICE INSPECTOR MALUR CIRCLE, MALUR KOLAR DISTRICT. …RESPONDENTS (BY SRI NANJUNDA GOWDA M.R., ADVOCATE, FOR R-1, & SMT. RASHMI JADHAV, ADDITIONAL S.P.P., FOR R-2) * * * Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 11-10-2022 PASSED IN SPL.C.(P) NO.19 OF 2021 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I (POCSO) AT KOLAR. THIS CRIMINAL APPEAL IS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE H.P.SANDESH) Heard the learned counsel for the appellant-complainant, the learned counsel for respondent No.1-accused and the learned Additional State Public Prosecutor for respondent No.2- State, and perused the material available on record. 2. The factual matrix of the case of the prosecution before the trial Court is that on 19.01.2021 at about 5:30 a.m., when the victim girl went out of her house to attend nature call, at that time, the accused came and gagged her, caused criminal intimidation stating that if she screams, he would kill her. By causing criminal intimidation, the accused kidnapped the victim on his Hero Honda (bike), bearing Registration No.KA-51 L-2871, and took her to Hunasikote and further - 3 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 threatened to kill her by running a tipper lorry on her and took her to the house of CW6-Srinivasa at Mindahalli, Malur Taluk. The accused wrongfully confined the victim in the house of CW6 and had forcible sexual intercourse on her everyday by causing criminal intimidation. On 21.01.2021, the mother of the victim lodged a missing complaint before the Masthi Police suspecting the role of the accused. Based on which, Crime No.12 of 2021 came to be registered. The Investigating Officer, arrested the accused, recorded the statements of the witnesses, recorded the statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') through the Magistrate, the victim was subjected to the medical examination, collected the victim's clothes and sent the same for FSL examination, and on completion of the investigation, filed the charge-sheet against the accused. 3. Having received the charge-sheet, secured the accused and the accused did not plead guilty and claims trial. Hence the prosecution examined PWs.1 to 17, got marked Exs.P1 to P21 and MOs.1 to 15. The statement of the accused under Section 313 of Cr.P.C. was recorded, but he did not lead any - 4 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 defence evidence. The trial Court, having considered both oral and documentary evidence on record, acquitted the accused for the offences punishable under Sections 363, 344, 376(2)(n)(3) and 506 of the Indian Penal Code, 1860, and under Section 6 of the Protection of Children from Sexual Offences Act, 2012. Being aggrieved by the order of acquittal, the present appeal is filed by the complainant. 4. It is contended in the appeal memo and during the course of arguments by the learned counsel for the appellant that the trial Court committed error in not considering the evidence available on record in a proper perspective. The appellant, being a complainant, lodged the complaint immediately after missing of her daughter and if the accused had not kidnapped and subjected the victim for sexual act, there was no need to lodge the missing complaint by PW2. Though PW2 and PW5, mother and father of the victim respectively, have supported the case of the prosecution, but the case was decided on the basis of further cross-examination of PW1, who had given contradictory statement with respect to her statement under Section 164 of Cr.P.C. before the - 5 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 Magistrate. PW1 has identified the accused. On reading of the statement of PW1, it is very clear that the accused only gagged her and subjected her for sexual act continuously. However, the trial Court has failed to consider the said fact. Hence, on these aspects, he prayed to admit the appeal. 5. Per contra, the learned counsel for respondent No.1- accused, and the learned Additional State Public Prosecutor for respondent No.2-State would submit that the trial Court, while passing the order has taken note of the material available on record, particularly, at paragraph Nos.32 and 33, has discussed the evidence of PW2 and PW5, mother and father of the victim respectively, who have not supported the case of the prosecution. PW1 in her further cross-examination has clearly stated that the accused has neither kidnapper her, nor committed rape on her. PW16-Doctor has stated that on examining the victim, there were no traces of sexual intercourse on her and she has not stated regarding the condition of hymen of the victim and hence, the evidence of the Doctor is also not helpful to the case of the prosecution. Further, the trial Court has failed to take note of Section 6 of - 6 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 the Indian Evidence Act, 1872. Hence, they pray for dismissal of the appeal. 6. It is the case of the prosecution that the accused gagged the victim when she came out of the house to attend the nature call, caused criminal intimidation to her, kidnapped and had forcible sexual intercourse on her. No doubt, PW1 in her chief-examination deposes before the Court reiterating the allegations made in the charge-sheet that the accused used to follow her and used to say, he would marry her. On 19.01.2021, when she came out of the house for nature call, the accused, gagged her, caused criminal intimidation, kidnapped her and subjected her for sexual act everyday till 01.02.2021. She escaped from the clutches of the accused and came to the industrial area of Narasapura. At that time, one person enquired her and informed her that her mother had lodged the complaint and took her to the Police Station. The Police enquired her, drawn mahazar in terms of Ex.P1 and the Doctor collected her clothes and she identified the same as MOs.1, 2 and 3. - 7 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 7. In the cross-examination, she admits that the place of incident is quarry and in the said place, the movements of people and vehicles are more. The distance between Ullerahalli and Hunasikote is about 1.5 km. She was staying in her brother's house on 17.01.2021 and 18.01.2021. She categorically admits that while giving the statement before the Magistrate under Section 164 of Cr.P.C., she has not stated anything regarding the accused, i.e. he gagged her, kidnapped her in his motorcycle, and subjected her for sexual act. Further, she has admitted that she has not stated regarding her escape from the clutches of the accused. When the suggestion was made to MOs.1 to 3 (clothes), she claims that the same belongs to her. However, in the further cross-examination, she has given a clear go-bye to her evidence. 8. The trial Court also took note of evidence of PW2 and PW5, mother and father of the victim respectively. No doubt, the missing complaint was given by PW2, but her evidence is not supported by any other material, including the medical evidence. PW16-Dr. Sangeetha, who examined the victim, has stated that the victim was subjected to medical examination on - 8 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 02.02.2021, and opined that there were no traces of sexual intercourse on her. No doubt, certain answers are elicited from the mouth of the Doctor that she did not mention the history in the report, but her opinion was pending subject to the FSL report. The FSL report also does not support the case of the prosecution as there were no seminal stains on the clothes of the victim, which were seized and sent to the FSL. The final opinion is also clear in terms of Ex.P16 that there was no material that the victim was subjected to sexual act. There is no consistent evidence of PW1 that inspires confidence of the Court. Apart from that, there is no medical evidence before the Court that she was subjected to sexual act and even the FSL report also not supports the case of the prosecution. Though the victim is a minor and when her statement was recorded before the Magistrate, nothing is stated against the accused. When there is no substantive piece of evidence to connect the accused to the crime, the trial Court has rightly acquitted the accused. Hence, we do not find any grounds to admit the appeal. - 9 - HC-KAR NC: 2026:KHC:4490-DB CRL.A No. 1324 of 2023 Accordingly, the appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE KVK List No.: 1 Sl No.: 12