- 1 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH 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.1758 OF 2025 (A) BETWEEN: THE STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE KARKALA CIRCLE, UDUPI DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-01. …APPELLANT (BY SMT. RASHMI PATEL, H.C.G.P.) AND: 1. SRI SATHISH GOWDA S/O. KUMARA GOWDA AGED ABOUT 27 YEARS RESIDING AT THANNIRUBAILU MATHAU, KABBINALE VILLAGE UDUPI DISTRICT-576 101. 2. SMT. DEVAKI W/O. CHANDRA NAIK AGED ABOUT 40 YEARS RESIDENT OF GANDHINAGARA KOKKARNE, PEJAMANGURU VILLAGE UDUPI, KARNATAKA -576 101. MOTHER OF VICTIM DEFACTO COMPLAINANT. …RESPONDENTS (BY SRI KASHIF KHAN, ADVOCATE FOR R-1; SMT. SOHANI HOLLA, ADVOCATE APPOINTED AS AMICUS CURIAE FOR R-2) * * * Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF THE CR.PC PRAYING TO A. GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 26-11-2024 PASSED BY THE LEARNED ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC-I UDUPI IN SPL.C NO.14 OF 2024, ACQUITTING THE RESPONDENT - ACCUSED OF THE CHARGED OFFENCES PUNISHABLE UNDER SECTIONS 376(N) OF IPC AND SEC. 3(A), 4 5(J)(II), 5(1) R/W 6 OF THE POCSO ACT, 2012 AND B. SET ASIDE THE JUDGMENT AND ORDER DATED 26-11-2024 PASSED BY THE LEARNED ADDITIONAL DISTRICT AND SESSION JUDGE - FTSC- I, UDUPI IN SPL.C NO.14/2024, IN SO FAR AS ACQUITTING THE RESPONDENT - ACCUSED FOR CHARGED OFFENCES PUNISHABLE UNDER SECTION 376(N) OF IPC AND SECTIONS 3(A), 4 5(J)(II), 5(1) R/W 6 OF THE POCSO ACT, 2012 AND ETC. THIS CRIMINAL APPEAL, 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 Smt. Rashmi Patel, learned H.C.G.P appearing for the appellant/State, Sri. Kashif Khan, learned counsel for respondent No.1 and Smt. Sohani Holla, learned Amicus Curiae appearing on behalf of respondent No.2/complainant. This appeal is filed by the appellant/State against the judgment of acquittal dated 26.11.2024 passed in Spl. Case No.14/2024 by the learned Addl. District and Sessions Judge, F.T.S.C.I, Udupi, for the offences punishable under Sections - 3 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 376(n) of IPC and Sections 3(a), 4, 5(j) (ii), 5(1) r/w Section 6 of POCSO Act, 2012. 2. The factual matrix of the case of the prosecution is that respondent No.1/accused introduced himself to the victim girl at Ajjarkadu Hospital, Udupi in September 2022 and they subsequently remained in contact over the phone. Further, on 19.06.2023 and 15.08.2023, the accused called the victim girl to his house in Mathavu, Kabbinale Village, Hebri Taluk, Udupi District and since there was nobody in the house, the accused enticed and forcibly had sexual intercourse with her during the daytime, against her will, as a result of which, the victim girl became pregnant and hence, she filed a complaint. The police registered the case, investigated the matter and filed the charge sheet. During the course of investigation, the accused was also arrested and remanded to judicial custody and thereafter he was enlarged on bail. After receipt of charge sheet, cognizance was taken and the accused did not plead guilty and claimed trial. 3. Hence, the prosecution in support of its case, got examined 18 witnesses as PW.1 to PW.18 and 30 documents as - 4 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 per Exs.P1 to 30 and one material object MO.1 were got marked. 4. The trial Court having considered both oral and documentary evidence on record, comes to the conclusion that the case of the prosecution is not proved and particularly taking note of the evidence of victim girl PW.1 as well as her mother, who has been examined as PW.2 comes to the conclusion that the prosecution has failed to prove the age of the victim girl and the evidence given by PW.1 and PW.2 is very clear that there was negotiations to perform the marriage of the accused and PW.1; the evidence of PW.2 is also very clear to the effect that the accused had promised that he is going to wait to marry the victim. The statement of the victim recorded under Section 164(5) Cr.P.C. is also extracted in paragraph No.56 of the judgment and in paragraph No.57, it is stated that though the victim girl in her statement under Section 164(5) Cr.P.C. has stated that the accused had committed forcible sexual intercourse on her, in her cross-examination, she has categorically admitted that accused has not caused any trouble to her and that prior to bringing her before the magistrate, the - 5 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 police had informed her about the case and tutored her to make such statement and the evidence of PW.1 was against her 164(5) Cr.P.C. statement. Further, the trial Court took note of Exs.P11 and 12 the medical reports, wherein the victim girl PW.1 has given history that she was in relationship with the accused and they had consensual sexual intercourse on 15.08.2023 and 21.09.2023, however, it is specific case of the prosecution that the accused has committed forcible sexual intercourse on the victim girl on 19.06.2023 and having taken note of the sexual intercourse even prior to that date and considering the relevant further cross examination of PW.1, which is extracted in paragraph No.59, comes to the conclusion in para 60 that as the prosecution has failed to prove the age of the victim girl and as claimed by PW.1 herself that she was major as on the date of the alleged incident, the offences alleged against the accused were not established by the prosecution. Further, the trial Court taking note of DNA test report held that admittedly there was love affair between the victim girl and the accused and this relationship was also known to both the families and there was plans for performing the marriage of the victim girl and the accused and only on the - 6 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 basis of DNA test report, the accused cannot be convicted and hence acquitted the accused. 5. Learned HCGP appearing for the appellant/State would submit that when the DNA test is clear with regard to the parentage of the accused with PW.1 pregnant girl and that the age of the victim girl being 16 years 4 months, the same has not been appreciated properly by the trial Court. Hence, she prays that accused/respondent No.1 may be convicted and the appeal be allowed. 6. Learned Amicus Curiae appearing for respondent No.2/complainant i.e., mother of the victim girl also would submit that the sexual act has taken place on the minor girl and the DNA test supports the case of the victim and hence this is a case for admission for consideration of the matter on merits. 7. Per contra, learned counsel appearing for respondent No.1/accused would submit that it is emerged during the course of evidence that both the accused and the victim girl PW.1 are friends and they were in touch with each other; in the - 7 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 statement of the victim girl recorded under section 164(5) Cr.P.C. before the Magistrate, the victim girl has categorically deposed that she has given the statement on the influence of the police and she has not supported the case of the prosecution; during the course of evidence, it was stated that it was consensual sex and there was no force; it was also not even stated that it was forceful act and the accused did not trouble her. These aspects have been appreciated by the trial Court while acquitting the accused and hence, he prays that the appeal be dismissed. 8. Having heard learned HCGP appearing for the appellant/State, learned Amicus Curiae for respondent No.2/complainant and learned counsel for respondent No.1/accused and after taking into consideration the evidence, particularly cross examination of the victim girl PW.1 and her mother PW.2, they have categorically admitted that accused has not caused any trouble to the victim girl. It is also stated by the victim girl that she is major as on the date of the alleged incident and she was having love affair with the accused; there was no forcible sexual intercourse by the accused and there - 8 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 was delay in lodging the complaint and the same was also taken note of by the trial Court, coupled with inconsistencies in the evidence of PW.1 and PW.2 before the Court and the statement of PW.1 recorded before the magistrate under Section 164(5) Cr.P.C., wherein she has given go-bye to the case of the prosecution as against her statement recorded under Section 164(5) CrPC and the history given before the medical officer and opinion of the medical officer probabilises that in view of opposition from the people of the caste of the accused for the marriage between the victim girl and the accused, the case was filed. 9. Having considered the material on record as the dispute between the parties had settled and both the parties had agreed for marriage, the same was also spoken to by PW.1 and PW.2, which has been taken note of by the trial Court. However, the trial Court comes to the conclusion that the evidence of PW Nos.1 and 2 is not trustworthy and as the prosecution has also failed to establish the foundational facts, invoking presumption under Section 29 of the POCSO Act would not operate and having found fundamental inconsistencies, held - 9 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 that the case of the prosecution is not proved. It is also important to note that though the victim girl was aged about 16 years 3 months as contended by learned HCGP and birth certificate is produced at Ex-P17, no witnesses were examined to prove the same and hence, the trial Court comes to the conclusion that the same has not been proved. In paragraph No.45, the trial Court has also discussed with regard to the age of the victim girl and held that when there is serious dispute with regard to the age of the victim girl, the evidence available on record is not sufficient to determine the age of the victim girl and it was of the opinion that the prosecution has failed to prove the age of the victim girl. In paragraph No.66, the trial Court was of the opinion that merely on the ground that the DNA test is proved positive, the same cannot be a sole ground to reconsider the matter, as the same is only an advisory and not mandatory to consider the same and it is only an opinion. When such being the case, in the instant case, when the age of the victim girl is not proved and the sexual act i.e., forceful act is also not proved as PW.1 victim girl herself has deposed that it was a consensual act and the accused has not caused any trouble to her, we do not find any ground to admit the appeal. - 10 - HC-KAR NC: 2026:KHC:2928-DB CRL.A No. 1758 of 2025 10. It is also learnt from the respective advocates on record that the victim girl is presently married to another person(not with the accused) and staying happily with her husband and hence, this is not a case to admit the appeal. In view of the discussions made above, we pass the following: ORDER 1. The appeal is dismissed. 2. This Court places on record the able services rendered by Smt. Sohani Holla, learned Amicus Curiae, appearing on behalf of respondent No.2/complainant. The Registry is directed to pay a honorarium of Rs.5,000/- to the learned Amicus Curiae Smt. Sohani Holla. Sd/- (H.P.SANDESH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MNList No.: 1 Sl No.: 15