- 1 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 9TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL APPEAL NO. 100215 OF 2021 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE THE POLICE SUB INSPECTOR, ANKOLA POLICE STATION, KARWAR, DISTRICT. UTTARA KANNADA, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SRI. JAIRAM SIDDI, HCGP) AND: MANIKANT S/O. DURGAYYA KHARVI, AGE. 23 YEARS, OCC. FISHING, R/O. MADHYAKHARVIWADA, DIST. UTTARA KANNADA KARWAR, PIN CODE- 581301. …RESPONDENT (NOTICE SERVED TO RESPONDENT) THIS CRIMINAL APPEAL IS FILED U/S 378 (1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30/012/2019 PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR IN SPECIAL CASE.NO.28/2016 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30/12/2019 PASSED BY SPECIAL JUDGE, UTTARA KANNADA, KARWAR IN SPECIAL CASE.NO.28/2016 AND CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE U/S 363, 354 OF IPC AND SEC. 8 OF POCSO ACT 2012, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Heard Sri Jairam Siddi, learned High Court Government Pleader for the appellant. The respondent has been served and is unrepresented. 2. The State has preferred the present appeal challenging the order acquittal of the respondent in Special Case No. 28/2016 on the file of the Special Judge, Uttara Kannada, Karwar. 3. The brief facts, which are necessary for the disposal of the present appeal, are as follows: Sri.Ramdas Seetharam Kharvi lodged a complaint with the Ankola Police alleging that his daughter, the victim girl, had been kidnapped by the respondent and that he had later misbehaved with her by touching her body parts. It is further revealed from the averments in the complaint that the victim was in the company of the accused for a period of two days. After the complaint was received, they were - 3 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 traced and rescued. Victim girl was brought back to her house. The complainant sought appropriate action against the respondent. 4. The police, after registering the case, apprehended the accused and conducted a detailed investigation. Upon completion of the investigation, a charge sheet was filed against the accused for the offences punishable under Sections 363 and 354 of the Indian Penal Code (for short, ‘the IPC’) Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO’). 5. Upon taking cognizance of the aforesaid offences, the learned Special Judge secured the presence of the accused and framed charges for the said offences. The accused pleaded not guilty and claimed to be tried; therefore, the trial was conducted. 6. In order to establish the case of the prosecution, the complainant examined himself as PW-1 and the victim girl was examined as PW-2. In all, the prosecution - 4 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 examined fifteen witnesses, namely, Ramdas Seetaram Kharvi, Suresh Hari Banavalikar, Hirayi Ramdas Kharvi, Chetan Thaku Kharvi, Sandeep Honnappa Naik, Varadraj Gajanan Naik, Vidya Omu Naik, Sunil Srikant Banavali, Dr. Subray Taku Ager, Dr. Anupama, Siddram Pujari, Arunkumar Kolur, and Lalita Bhimappa Rajapooth, as PW-1 to PW-15. 7. On behalf of the prosecution, seventeen documents were placed on record and marked as Exs.P-1 to P-17, which include the complaint, spot panchanama, statement of the victim girl recorded under Section 164 of the Cr.P.C., seizure panchanama, statements of witnesses, medical examination report, study certificate of the victim girl to establish her age, examination report, and the first information report. 8. Upon completion of the recording of evidence, the learned Trial Judge recorded the statement of the accused under Section 313 of the Cr.P.C. The accused denied all the incriminating circumstances put to him and - 5 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 specifically contended that he had never kidnapped the victim girl. He further stated that the victim girl had voluntarily come to his house as she was unable to tolerate the ill-treatment allegedly meted out to her at her parental home and further asserted that there was a love affair between him and the victim girl. 9. No defence evidence was adduced on behalf of the accused. Thereafter, the learned Trial Judge heard the arguments of both sides and, by the impugned judgment, acquitted the accused, inter alia, for the reasons recorded in paragraphs 32 and 33 thereof, which read as under: “32. In the case in hand PW-2 victim not supported the case of prosecution. She gave voluntary statement before Magistrate without any force. She admitted that her parents used to assault her. Accused never called her to come to his house and he will taken her to Bengaluru. It is in the evidence of PW-2 that when she went to accused house he told her not to come to his house and asked her to go back to her house. She has admitted that she was loving accused and this fact known to her family parents. She has also stated before J.M.F.C that she was PUC student. - 6 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 She denied that she never went to accused house and accused neither taken her Baleguli Varadraj Hotel, nor Bengaluru Hotel and she is deposing falsely as stated by police. The evidence of PW-2 good by to the whole prosecution case. The accused never kidnapped victim and it is the victim left the house and went to the accused house, due to harassment of her parents. Due to the force of Victim accused taken her with him to Varadraj Hotel and also Bengaluru Hotel, but he never take advantage of victim situation and sexually assaulted her. It is pertinent to note that PW-2 victim was PUC student at the time of alleged incident and she know very well about the worldly knowledge and she is capable to know about good and bad to her. The victim and accused were lovers and due to enmity between their family young lovers left the village and went away. But both of them not extended their limit and both of them lived together as a good friends for two days. The accused is hardly aged about 23 years at the time of alleged incident. He is having good culture and behaviour as such he never sexually assaulted PW-2. The accused had good opportunity to misuse the position of the victim. But he never crossed his limit. Both victim and accused were equally responsible for the mistake done by them. If the young boy send behind the bar his whole life will be spoiled. - 7 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 33. The material available on record is not sufficient to come to the conclusion that the accused has committed the alleged offences. It is pertinent to note that Ex.P-1 complaint is belated one. As per Section 101 of Indian Evidence Act, burden of proof in criminal trial is lies on the prosecution, that cannot be shifted against the accused. The delay caused in lodging the complaint is not properly explained by the prosecution. Section 104 of Indian Evidence Act is rebuttal presumption. Neither complainant-victim nor her parents or relatives not lodged any complaint to the police immediately after they coming to know about fact. After 4 days complainant lodged a complaint to the police. Delay in reporting incident at police station created doubt about the truthfulness of prosecution case. Per contra all the family members discussed the issue and thereafter lodged complaint that too after lapse of 4 days. Therefore, it creates doubt on Ex.P-1 complaint averments that accused committed sexual assault on PW-1. Therefore, to believe sworn testimony benefit of doubt will arise and same benefit of doubt must go infavour of accused. It is pertinent to note that PW-2 victim and accused were lovers and victim voluntarily left the parental house and went to the house of accused. But accused advised her to go back, but she refused for the same. Therefore, due to the force of PW-2 victim accused - 8 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 taken her Varadraj hotel and Bengaluru Hotel and stayed with her for two days. Both of them were working and leading their life. It is prime important to note that the accused never sexually assaulted the PW-2 and he looked after her very decently by providing all the basic needs to her.” 10. Being aggrieved by the same, the State has preferred the present appeal before this Court on the following grounds:  “That the Judgment and Order of acquittal passed by the Trial Court is contrary to Law, facts and evidence on record. Hence, the same is liable to be set aside.  That PW.1 is father of the victim girl and has specifically stated before the Trial Court that, the date of birth of the victim girl was 17.05.1999 and victim girl was missing from 04.08.2015 and nothing has been elicited in the cross- examination of PW.1 to disbelieve the date of birth of the victim girl. That nothing has been suggested to PW.1 that the victim girl has been taken from the custody of PW.1 with the consent and the same has not been suggested to the father of PW.1. This of the matter not been has aspect considered by the Trial Court and thereby - 9 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 erred in rejecting the evidence of PW.1. Therefore, the impugned Judgment and order of acquittal passed by the Trial Court is not sustainable and liable to be set aside.  That it is submitted that PW.2 is the victim girl has specifically stated that, her date of birth was 17.05.1999 and as on the date of incident, she was aged about 16 years. At the time of giving the evidence before the Court, she was aged 18 years. Therefore, she has rightly stated before the Trial Court that her age as on of date of evidence was 18 years. This aspect read and the matter has wrongly appreciated by the Trial Court and opined that, the prosecution has not properly proved the date of birth of the victim girl and also the age of the victim girl. The said reasoning assigned by the Trial Court is against the document produced by the prosecution. Therefore, the Judgment and Order of acquittal passed by the Trial is contrary Court to law and not sustainable and liable to be set aside.  That it is submitted that PW.2 is the victim girl and she has specifically stated that, evidence her in the Respondent / accused took the victim girl to different places and also deposed that, at that time, the Respondent / accused touched her body and this aspect of the matter has not been - 10 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 considered by the Trial Court and the ingredients of Section 363 and 354 of IPC and Section 8 of POCSO of the Act would attract to the case prosecution. But the Trial Court rejected the said evidence on the ground that PW.2 victim girl had gone with her own volition (her own wish and will) and also on the ground that the victim and the accused were the lovers. That the reasonings assigned by the Trial Court are not sustainable because the victim girl was minor at the time of incident. Therefore, the impugned Judgment is liable to be set aside.  That it is submitted that PW.8 has clearly deposed before the Trial Court that on P.C.No.1436 07.08.2015, went and himself and at to Bengaluru Hosur, they apprehended the accused and secured the victim girl from Hosur and produced before the Investigating Officer.  That PW.11 is the Head Mistress of wherein school, studying the issued and date victim of was birth certificate as per Ex.P.9. As per Ex. P.9, victim's date of birth is 17.05.2019 and nothing has been elicited in the evidence of PW.11 to disbelieve her evidence and also not produced any rebuttal evidence to disprove the date of birth certificate of the victim girl. Therefore, as on the date of incident, the victim girl was less that - 11 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 18 years and provisions of POCSO Act clearly applicable to the case of the prosecution.  That it is submitted that Special Judge has totally ignored provisions of Section 29 and 30 of POCSO Act. According to Section 29 of the POCSO Act, when any accused is alleged with the offences punishable under Section 3, 5, 7 and 9 of POCSO Act, then unless the contrary is proved, the Court shall presume that the accused has committed the offence. This presumption is a statutory presumption, it shall be drawn against the accused persons. The reversal burden on the accused has to be discharged by the accused. The Trial Court has totally ignored this provision and has not drawn the statutory presumption which is mandatory to be drawn against the accused. The said statutory presumption creates an exception presumption to of the ordinary rule of innocence available to accused in ordinary criminal trial and such presumption puts onus on the accused to establish his innocence. Therefore, the impugned Judgment and Order of acquittal is not sustainable and the same is liable to be set aside.  That it is submitted that Section 30 of POCSO Act raises presumption as to the mental condition of the accused and the said mental condition is - 12 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 inclusive of "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe on fact and this presumption is so strong that the accused has to prove absence of culpable mental state beyond all reasonable doubt. The accused is not relieved by showing the preponderance of probability.  That the Trial Court has not drawn the presumption which are mandatory and evaluated the evidence and decided the case like ordinary criminal case and has mechanically acquitted the Respondent/accused which calls for intervention by this Hon'ble Court.  That proper presumptions have not been made and drawn while assigning the reasons for acquittal of Respondent /accused. Failure to do so would cause miscarriage of justice.  That looking at any angle the Judgment and Order of acquittal passed by the trial court is suffers from many legal infirmities and it requires re-appreciation by this Hon'ble Court.” 11. Sri Jairam Siddi, learned High Court Government Pleader, reiterating the grounds urged in the memorandum of appeal, vehemently contended that the victim girl supported the case of the prosecution in her examination- - 13 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 in-chief and that her testimony, when read along with the attendant facts and circumstances, including the medical evidence, substantially corroborates the prosecution case. He therefore sought admission of the appeal for further consideration. 12. He would further contend that, admittedly, the victim girl was aged 16 years at the time of the incident and, therefore, was a minor. It is submitted that the victim was enticed and taken away from the lawful custody of her parents by the accused, which act is sufficient to attract the offences punishable under Sections 362 and 363 of the Indian Penal Code. 13. It is further contended that the indecent physical touch of the victim girl by the accused is sufficient to attract the offence punishable under Section 354 of the IPC and Section 8 of the POCSO Act. These aspects, according to the learned High Court Government Pleader, have not been considered by the learned Trial Judge in the proper perspective, resulting in a miscarriage of justice. - 14 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 Accordingly, he sought admission of the appeal for further consideration. 14. The respondent–accused has been served and remains unrepresented. 15. In the light of the arguments advanced on behalf of the appellant, this Court has meticulously perused the material on record. 16. Upon such perusal, in a matter of this nature, the testimony of the victim girl assumes paramount importance. 17. Admittedly, in the case on hand, during her cross-examination, the victim girl has specifically stated that it was not the accused who enticed or took her away from the lawful custody of her parents, but that she had voluntarily gone to the house of the accused as she was unable to tolerate the alleged ill-treatment meted out to her by her parents. Therefore, no evidence whatsoever is made out to attract the offence punishable under Section 363 of the IPC. - 15 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 18. In this regard, this Court places reliance on the judgment of the Hon’ble Apex Court in S. Varadarajan Vs. State of Madras1, wherein paragraph 7 of the said judgment reads as under: 7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that “taking” of Savitri out of the keeping of her father has not been established. The offence of “kidnapping from lawful guardianship” is defined thus in the first paragraph of Section 361 of the Indian Penal Code: “Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind. Without the consent of such guardian is said to kidnap such minor or person from lawful guardianship.” 1 1964 SCC Online SC 36 - 16 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 It will thus be seen that taking or enticiting away a minor put of the keeping of a lawful guardian is am essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub- Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or - 17 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived - 18 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision in Re Abdul Satar [54 MLJ 456] in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of Section 363 and expressing agreement with this statement of the law observed:“In this case the minor, PW 4, would not have left the house but for the promise of the appellant that he would marry her”. Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In Re Abdul Sathar case [54 MLJ 456] Srinivasa Aiyangar, J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed: “If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her - 19 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 husband's house herself and that her leaving was in some manner caused or not brought about by something that the accused did.” In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself : it was she who telephoned to the appellant and fixed the rendezvous she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him”. 19. Now, with regard to the offences punishable under Section 354 of the IPC and Section 8 of the POCSO Act, it is relevant to note that the victim herself did not state that the accused behaved in an indecent manner or touched her body inappropriately. The medical evidence on - 20 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 record is also silent on these aspects, and there is no external injury on the body of the victim girl. 20. It is true that the respondent and the victim girl were involved in a love affair, and there may have been an opportunity for the accused to take advantage of the situation; however, he did not do so. The finding recorded by the learned Trial Judge is, therefore, based on the material evidence on record. 21. Thus, even upon re-appreciation of the material evidence, this Court does not find any of the essential ingredients necessary to attract the offences punishable under Sections 363 and 354 IPC and Section 8 of the POCSO Act. 22. Further, whenever a duly constituted court, after analyzing the material evidence on record, records a finding that the accused is not guilty of the offences alleged against him, the innocence of the accused stands reinforced. 23. It is also a well-settled principle of criminal jurisprudence that, where two views are possible on the - 21 - HC-KAR NC: 2026:KHC-D:217 CRL.A No. 100215 of 2021 basis of the evidence and circumstances, the view favorable to the accused must be preferred. 24. It is a settled principle of law and requires no emphasis, that the prosecution must traverse the entire distance from suspicion to actual proof in a given case. Mere suspicion, however strong, cannot take the place of proof. 25. Applying the aforesaid well-settled principles to the facts of the present case, this Court does not find any legal infirmity or perversity in the impugned judgment that would warrant admission of the appeal for further consideration. ORDER a) The application seeking leave for admission of the appeal is declined. b) Consequently, the appeal is dismissed. Sd/- (V.SRISHANANDA) JUDGE AC CT-CMU/LIST NO.: 2 SL NO.: 24