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2026 DAILYLAW 9418 (KAR)

THE STATE OF KARNATAKA v. JAGADISHA NAIK J

CRL.A/1939/2018 · 2026-02-16

H P Sandesh, Venkatesh Naik T

Criminal Appealbody2026

Judgment text

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- 1 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE H.P.SANDESH AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.1939 OF 2018 (A) BETWEEN: THE STATE OF KARNATAKA THROUGH BASAVAPATNA POLICE STATION REPT. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-01. …APPELLANT (BY SMT. RASHMI PATEL, H.C.G.P.) AND: 1. JAGADISHA NAIK J S/O JALENDRA NAIK AGED ABOUT 29 YEARS RESIDING OF SEVANGARA (RUDRAPURA) VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT. 2. PARAMESHWARA NAIK S/O VAALGA NAIK AGED ABOUT 69 YEARS RESIDING AT SEVANAGARA (RUDRAPURA) VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT. 3. SMT. MOTHIBAI W/O SRI PARAMESHWARA NAIK AGED ABOUT 46 YEARS RESIDING AT SEVANAGARA (RUDRAPURA) VILLAGE Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 CHANNAGIRI TALUK DAVANAGERE DISTRICT. …RESPONDENTS (BY SRI S.V. BHOJARAJA, ADVOCATE FOR R-1; SMT. SWATHISHREE JAIN, ADVOCATE FOR R-3; VIDE ORDER DATED 22-04-2024, APPEAL AGAINST R-2 IS ABATED) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE PRAYING THAT TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED 23.03.2018 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, DAVANAGERE IN S.C.NO.27 OF 2016 ACQUITTING THE ACCUSED/RESPONDENT FOR THE OFFENCE P/U/S 4 OF POCSO ACT. THIS APPEAL, COMING ON FOR HEARING, 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 learned H.C.G.P Smt. Rashmi Patel, appearing for the appellant/State, learned counsel for respondent No.1/accused and Smt. Swasthishree Jain, learned Amicus Curiae appearing for respondent No.3. The appeal against respondent No.2/complainant stood abated vide order of this Court dated 22.04.2024. - 3 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 This appeal is filed against the order of acquittal dated 23.03.2018 passed by learned II Addl. District & Sessions Judge & Special Judge, Davanagere in SC No.27/2016 against respondent No.1/accused for the offence punishable under Section 4 of the POCSO Act. 2. The factual matrix of the case of the prosecution is that on 17.11.2015 at about 12.00 in the noon, when PW.5 victim went inside the house of PW.4 to get the clothes stitched and as the door of said house was latched, by removing the same, she went inside and at that time, the accused came from behind and caught hold of PW.5 victim, took her inside the hall and inspite of her resistance, subjected her to sexual act and hence, a complaint was lodged. Subsequently, the case was registered, matter was investigated and charge sheet came to be filed. The accused was arrested and produced before the Court and he was remanded to judicial custody and after investigation, the trial court took cognisance and framed charges against the accused. The accused did not plead guilty and claimed trial. - 4 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 3. Hence, the prosecution in order to prove its case, examined 22 witnesses as PW.1 to PW.22 and got marked 18 documents as per Exs.P1 to 18 and M0s.1 to 4 and on closure of evidence of the prosecution, 313 statement of the accused was recorded and the accused did not choose to lead any defence evidence. The trial court having considered both oral and documentary evidence and having found inconsistencies in the evidence of the victim as well as in her 164 Cr.P.C. statement, which was discussed in paragraph No.29 and in paragraph No.31, extracted 164 statement and the relevant portion of the cross examination of PW.5 was extracted in paragraph No.32 and having considered the contradictory version found in the evidence of PW.5 in 164 statement comes to the conclusion that the evidence of PW.5 is not consistent and apart from that, took note of the evidence of the Doctor, who has been examined as PW.8, wherein she has categorically stated that on examination, she did not find any evidence of subjecting the victim for sexual act and that the hymen was intact and also did not find any injuries and hence, the trial Court considering the evidence on record, particularly the evidence of PW.1, PW.5 and also the medical evidence comes - 5 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 to the conclusion that the case of the prosecution does not inspire the confidence of the Court. The trial Court also considered the evidence of PW.6, who has recorded the visual recordings of the sexual act, but he also did not inform the same to the police and according to the prosecution, even the witnesses had gone to the place of incident and having found the accused running away from the place, they also did not inform the same and the complaint came to be filed on 22.11.2015 and there was a delay of 6 days in lodging the complaint. The trial Court also took note of the complaint filed by PW.1-complainant, wherein, it is stated by him that his son, who was also along with other witness Manja Naik witnessed the incident, he being the son, did not inform about the incident to his father PW.1 and only on enquiry, his daughter- victim girl has revealed the same and hence a complaint was registered. The trial court took note of the evidence of PW.1 wherein PW.1 had even gone to the extent of relying upon the evidence of PW.15, who is a Computer Operator, to whom the complainant had gone for getting the visual recordings transferred to the CD from the memory card of the mobile and PW.6 says, he gave the chip to the complainant and he has - 6 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 stated before the police and it was the chip of PW.6, which was given by the complainant to PW.15, who took the same and got the visual recordings transferred in the memory card to CD and even having played the CD card, however, the same did not showed the face of the accused. The other witnesses examined are the mahazar witnesses. PW.18 is the ASI, Basavapatna, who has gone to the spot to draw the panchanama and taken the photo as per Ex.P3 and also arrested the accused and considering the material evidence available on record, particularly the evidence of PW.5, PW.1, PW.8, PW.6 and PW.7, the trial Court comes to the conclusion that the evidence of these witnesses does not inspire the confidence of the Court and hence, acquitted the accused. Being aggrieved by the order of acquittal, the present appeal is filed by the State. 4. Learned H.C.G.P Smt. Rashmi Patel, appearing for the appellant/State, in her arguments, would vehemently contend that the evidence of the witnesses and the material on record are not considered by the trial Court in proper perspective; that the evidence of the victim girl is sufficient to bring home the guilt of the accused; that the victim girl has categorically - 7 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 deposed as how the incident has taken place and when such evidence is given by the victim and complaint is lodged immediately by her father PW.1 after he coming to know about the alleged rape on his daughter, the evidence of PW.1- father has not been considered properly; that the trial Judge failed to consider the evidence of PW.6 and PW.7, who are the witnesses, who have seen the accused committing the sexual acts on the victim girl and though they supported the case of the prosecution, the same is not properly appreciated. PW.11- The Registrar of Birth and Deaths, Davanagere, has issued the birth certificate of the victim girl, which is produced as per Ex.P12, which clearly discloses that the victim girl was a minor as on the date of the alleged incident and when a serious offence against a minor girl is committed, the trial Court ought not to have given the benefit of acquittal in favour of the accused and there was a presumption under Section 29 of POCSO Act, wherein a presumption arises that when a person is prosecuted for committing or abetting to commit any offence under certain provisions of the said Act, unless the contrary is proved, the trial Court ought to have taken note of all these factors into consideration while acquitting the accused. - 8 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 5. Smt. Swathishree Jain, learned Amicus Curiae, who is appearing on behalf of respondent No.3, i.e., the mother of the victim girl, authorized by High Court Legal Services Committee would vehemently contend that the Court ought to have take note of the evidence of PW.5-victim and even though the statement of the victim recorded under Section 164 Cr.P.C. is contrary to the oral evidence of PW.5 before the Court, the same is not a substantive piece of evidence and 164 statement cannot be relied upon, while considering the material on record. She further contends that the victim was examined on 25.11.2015 i.e., after one week of the alleged date of incident i.e., 17.11.2015 and though the hymen was intact, the same cannot be a ground for acquittal of the accused. Learned Amicus Curiae would also contend that the clothes of the victim, which were seized were stained with human blood and FSL report is clear in that regard and in the absence of any spermatozoma, as stains were found on the clothes of the victim, the same cannot be a ground to give benefit to the accused. She further contends that though PW.6 recorded the sexual act using his mobile phone through the window of the house of PW.4, which was later given to the complainant, who - 9 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 got transferred the same to the CD through PW.15, which was played before the Court as MO.1, inspite of the video visuals before the court, the same was not accepted by the trial Court and hence it requires interference of the Court. 6. 6. Per-contra, learned counsel appearing for respondent No.1/accused would submit that respondent No.1/accused has been falsely implicated in the case and the medical records does not disclose subjecting the victim/PW.5 for sexual act and even the alleged witnesses, who have stated that the accused ran away from the spot are planted witnesses and nothing is stated by them immediately after the incident and if really they had witnessed the incident on the very same day, they would have informed the same; that according to the PW.1 father, his son has also witnessed the incident, however, the son did not disclose the same to his father and only on enquiry, the victim girl revealed the same; that the very case of the prosecution is doubtful, which has been taken note of by the trial Court, particularly the 164 statement as well as victim's evidence and more contradictions are found in the evidence of PW.1 and 164 statement made by the victim before the learned magistrate on - 10 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 25.11.2015 itself and the same is discussed by the trial court in detail after paragraph No.28 onwards and having extracted the evidence of PW.5 and also the evidence of each of the witnesses comes to the right conclusion that the prosecution has not made out the case and hence acquitted the accused, which does not require any interference of this Court. 7. Having heard learned H.C.G.P appearing for the appellant/State, learned counsel for respondent No.1 and learned Amicus Curiae appearing for respondent No.3/mother of the victim PW.5, this Court has to examine the evidence available on record and having examined the material, the questions that arise for consideration of this Court are: 1. Whether the trial Court committed an error in acquitting the accused of the offence punishable under Section 4 of the POCSO Act while coming to the conclusion that the victim's evidence is inconsistent and material contradictions are found in the case of prosecution? - 11 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 2. Whether such finding of the trial Court is erroneous and requires interference of this Court? 3. What order? 8. Having heard respective counsels and on perusal of the materials and also considering the charges framed against the accused, it is not in dispute that the victim PW.5 is a minor and Ex.P12 certificate is issued by the concerned Registrar of Birth and Death, Mahanagara Pallike, Davanagere i.e., by PW.11. The same discloses that the victim/PW.5 was a minor and the same is spoken to by PW.11, Registrar of Birth and Death and the document is marked as Ex.P12, which is the birth certificate of the victim. Hence, it is clear that as on the date of the alleged crime, PW.1 was a minor. 9. Now coming to the aspect of the evidence available before the Court, PW.1 is the father of the victim girl and he gave the complaint in terms of Ex.P1 and his signature is also marked as Ex.P1(a) and having considered Ex.P1, it is stated that he came to know about the sexual act on his daughter on 22.11.2015. In the complaint, it is stated that his son - 12 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 Sri. Nagaraja@ Parameshwara Nayak as well as one Manja Naik, had witnessed the accused running away from the place of the incident, however the said incident was not disclosed to him by the said witnesses or the victim. It is further stated in the complaint that the victim did not inform the same to him and as the victim was not taking food for two to three days, on inquiry, she revealed the same, then the issue was taken up to the villagers and thereafter the complaint was lodged. On perusal of Ex.P1, on 22.11.2015, at 8.00 p.m., the case was registered, matter was investigated and thereafter the charge sheet came to be filed. The victim was subjected to medical examination at Chigateri District Hospital, Davanagere, as per Ex.P8 and the doctor, who conducted medical examination on the victim has stated that no external injuries were found over the body, secondary sexual characters were well developed, no injuries were found over the perineum and the hymen was intact and the dentist was of the opinion that on examination of written clinical findings with the assessment of radiographic view, individual's age in the instant case was estimated to be between 17 years to 18 years and the FSL report goes to show that Item Nos.5, 6 and 7(victim's chudi top, chudidhar pant and - 13 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 panty)were stained with human blood and the final opinion was that based on the clinical examination and FSL report, there is no evidence of recent sexual assault. 10. Having considered the evidence of PW.8 Doctor, who has examined the victim has deposed before the Court that the victim was not subjected to any sexual act recently and recent sexual act means for about one week, but she was subjected to examination on 24.11.2015 and the alleged incident has taken place on 17.11.2015 i.e., 8th day and her evidence is also very clear that no sperms or spermatozoma were found on the cloth of the victim except the blood stains and hence, the medical evidence also does not support the case of the prosecution. 11. 11. Now, the Court has to consider the evidence of PW.1 father, wherein, he reiterates the contents of Ex.P1 in his chief evidence and as panchayathdars has told him to lodge a complaint, he lodged the complaint in terms of Ex.P1 and this witness was subjected to cross-examination and in the cross-examination, with regard to the panchayat elections, it is elicited that for more than 15 years, wife of Balaramanaik was elected as Grama Panchayat member and in the recent election - 14 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 held, the mother of the accused defeated the wife of Balaramanaik. But, in the cross examination, he admits that while lodging the complaint, he has taken the Balaramanaik, Madanaik and Omkarnaik and PW.6 had told that he had recorded the alleged rape of his daughter and hence collected MO.1-CD. Further, the Court has to take note of the evidence of victim girl PW.5. In her evidence, the victim reiterates that she went to the house of PW.4 to get the cloth stitched from PW.4, the door was open and as no one was there, she went inside and accused Jagadishnaik came from back side and held her and took her inside the house and subjected her to sexual act; when she first screamed, no one came, later when screamed, Nagrajnaik and Mohannaik came to the spot, the accused ran away from the spot and her father had informed the same to the villagers and thereafter a complaint was lodged. She further states that she was subjected to medical examination and her clothes were seized. This witness was subjected to cross-examination and in the cross-examination, contradictions were elicited with regard to the statement which she made before the learned Magistrate while recording her statement under Section 164 Cr.P.C., wherein also she categorically - 15 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 admits that she did not make any statement before the learned magistrate about the two persons who came to the spot and that at that time, the accused ran away from the spot and also she did not inform the same as she lost her consciousness and the accused only woke her up and the said statement was made in 164 statement contrary to her own evidence and in the cross-examination, she also categorically says that her brother and Mohan Nayak did not chase the accused to caught hold of him and she disclosed the same only to her father on 22nd and then a panchayath was held. But, the Court has to take note of the fact that according to her, her brother and Mohan Nayak came to the spot and accused ran away from the spot. But both of them did not make any attempt to caught hold of the accused at the spot and M.O.1 is also before the Court, wherein, only the legs of a girl were visible and the face was not identifiable and same admission was also given by PW.6. No-doubt, PW.6 says that he recorded the said incident in his mobile chip and he has given the mobile chip to the complainant, but he did not make any attempt to enter inside the house and he has got videographed the same peeping through the window and he did find that clothes were not - 16 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 removed while he was videographing the same. But when suggestion was made that his mother was also contesting for election, he states that he is not aware of the same and he also admits that in M.O.1, only legs were visible and face was not identifiable. The other witness is PW.7-Mohan Naik and he also says that accused ran away from the spot and on enquiry, victim revealed that someone came from backside and committed sexual assault on her and thereafter, she revealed that the accused only committed the said act. But this evidence does not inspire the confidence of the Court that when the incident took place on 17.11.2015 itself, they did not inform on the same day. It is also to be noted that when the son of PW.1 was also present at the time of the incident, his son also did not disclose the same to his father/PW.1 and the son of PW.1 is also not cited as a witness nor was examined before the Court. Having taken note of the prosecution case also, mainly the evidence of PW.6 and PW.7, wherein PW.6 also did not bring to the notice of either PW.1 or to any other members of the village about the alleged incident and having taken note of totality of the evidence available before the Court including the evidence of PW.15, Computer Operator, who transferred the - 17 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 visual clippings to the CD, no certificate as required under Section 65B of the Evidence Act is produced before the Court. The medical evidence also does not support the case of the prosecution, wherein hymen of the victim girl PW.5 was intact and no injuries were found in the perineum and when such being the case, when there is no medical evidence to show that victim was subjected to sexual act as contended by the prosecution and when the evidence of PW.5/victim is also not consistent, the same was taken note of by the trial Court while considering the same after paragraph No.29 onwards and in- detail discussed the inconsistencies in 164 statement as well as in the evidence of the victim PW.5, which are contradictory to each other and as material contradictions were found in the case of the prosecution, a detailed discussion was made with regard to evidence of each and every witness, who have been cited and examined before the court as planted witnesses and their evidence does not expire the confidence of the Court. When such being the case, we do not find any ground to interfere with the findings of the trial Court. - 18 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 12. While reversing the findings of the trial Court, the Court has to take note that there must be positive and cogent evidence before the Court to arrive at a conclusion that the trial Court committed an error in appreciating the evidence of the witnesses viz., PW.4, PW.5, PW.1 and also the contents of 164 statement given by the victim and having given anxious consideration to the evidence available on record both oral and documentary, we are of the opinion that this is not a case for convicting the accused and hence the trial court has rightly come to the conclusion that the evidence of PW.5 is inconsistent and also not believable and considering the material contradictions, the order of acquittal was passed by the trial Court. The contents of M.O.1 CD also goes against the evidence of PW Nos.1, 5 and 6 and so also PW.7 and that PW.1 voluntarily undertook to produce the video clippings of sexual act from Airtel company after getting permission from the Court, however, he did not produce the same before the Court and that he also did not make any efforts to play the same before the Court and that he implicated the accused due to defeat of wife of Balaramanaik in the Gram Panchayat elections by the mother of the accused and the same was elicited from - 19 - HC-KAR NC: 2026:KHC:9342-DB CRL.A No. 1939 of 2018 the mouth of PW.1. While considering the case of the defence also, the main ground of the defence is that the wife of Balaramanaik had lost the elections and the mother of the accused was elected as Gram Panchayat member and the same is admitted by PW.1 and when all such materials were taken note by the trial Court and Balaramanaik coming everyday to the Court on every hearing date and waiting and watching the proceedings, the same was also admitted by PW.1. 13. Having considered all these factors into consideration, this is not a fit case for reversal of the judgment passed by the trial Court and hence we answered the points accordingly. In view of the discussions made above, we pass the following:- ORDER Appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN