Karnataka High Court
Sunilkumar Alias Sunil S/O Nagendrappa ... vs The State Of Karnataka on 3 July, 2024
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NC: 2024:KHC-K:4529-DB
CRL.A No.200071 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.200071 OF 2019 (374)
BETWEEN:
SUNILKUMAR ALIAS SUNIL
S/O NAGENDRAPPA KODBOOR,
AGE: 29 YEARS,
OCC: STUDENT,
R/O: KALAGI VILLAGE,
TQ: CHITTAPUR,
DIST: KALABURAGI.
...APPELLANT
(BY SRI. NANDKISHORE BOOB, ADVOCATE)
Digitally signed by AND:
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH
1. THE STATE OF KARNATAKA
COURT OF THROUGH MAHILA
KARNATAKA
POLICE STATION KALABURAGI,
REPRESENTED BY ITS
ADDITIONAL STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH,
KALABURAGI - 585 103.
2. RAJKUMAR
S/O JEEVARAJ,
AGE: 58 YEARS,
OCC: TAILOR,
R/O: H.NO.9-350/8B,
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NC: 2024:KHC-K:4529-DB
CRL.A No.200071 of 2019
CHANNAMMAALKESHWAR NAGAR,
LANGOTI PEER DARGHA,
SHAHABAZAR, KALABURAGI - 585 101.
...RESPONDENTS
(BY SRI. SIDDALING P. PATIL, ADDL. S.P.P;
R2 SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(1) OF CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
CALL FOR THE RECORDS IN SPL. CASE (POCSO) NO.52/2015
ON THE FILE OF THE II ADDITIONAL SESSIONS JUDGE, AT
KALABURAGI AND PERUSE THE SAME, ALLOW THIS APPEAL
AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE DATED 16.03.2019 PASSED IN
SPL.CASE.(POCSO) NO.52/2015 ON THE FILE OF THE II
ADDITIONAL SESSIONS JUDGE, AT KALABURAGI AND SET
ASIDE THE APPELLANT / ACCUSED AT LIBERTY IN THE
INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, RAJESH RAI K., J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal by the convicted accused directed against the judgment of conviction and order of sentence passed in Spl.C.POCSO.No.52/2015 dated 16.03.2019 passed by the II Additional Sessions Judge at Kalaburagi, wherein learned Sessions Judge convicted the accused for the offences punishable under Sections 366-A, 376(2)(n), 506, 343 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') -3- NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 and sentenced the accused to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- both for the offences punishable under Sections 376(2)(n) of the IPC & Section 6 of the POCSO Act and in default, he shall undergo simple imprisonment for a period of two year. Further, the accused was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 366-A of the IPC and in default, he shall undergo simple imprisonment for a period of thirty months. He also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- for each offences punishable under Sections 343 & 506 of IPC and in default, he shall undergo simple imprisonment for a period of six months.
2. The factual matrix of the prosecution case in brief that:-
The father of the victim i.e., one Rajakumar lodged the complaint before the respondent-Police on 05.08.2015 alleging that his daughter i.e., the victim girl went to -4- NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 college on 23.07.2015 in the morning hours at about 9:30 a.m. Thereafter, she did not return to house. Himself and family members searched her for one day and on 24.07.2015, he came to know that the accused kidnapped his daughter from College and hence, he lodged the complaint before the Police as per Ex.P1. Based on the said complaint, the Kalburagi Women Police registered the case against the accused for the offence punishable under Section 363 of IPC in Crime No.53/2015 dated 05.08.2015 as per Ex.P23. Subsequently, after 20 days, the accused and the victim were traced at Bengaluru and the respondent-Police arrested the accused. The respondent-
Police recorded the statement of the victim so also sent her for medical examination. Thereafter, recorded her statement under Section 164 of Cr.P.C. before the Jurisdictional Magistrate and completed the investigation by recording the statement of all the witnesses so also after obtaining necessary documents from the concerned authorities including the medical reports, the Investigation Officer i.e., PW.19 laid the charge sheet before the Special -5- NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 Court against the accused for the offences punishable under Sections 363, 376(2)(n), 506, 343 of IPC and Section 6 of the POCSO Act, 2012. The learned Special Judge, after taking cognizance of the offence, framed the charges against the accused for the aforementioned offences and read over the same to the accused. However, the accused denied the charges levelled against him and claims to be tried.
3. In order to prove the charges levelled against the accused, before the Special Court, the prosecution in total examined 19 witnesses as PW.1 to PW.19 so also got marked 24 documents as Exs.P1 to P24 and got identified 12 material objects as MOs.1 to 12.
4. After completion of the prosecution evidence, the incriminating portion of the evidence on material witnesses read over to the accused as per the provisions of Section 313 of Cr.P.C. However, the accused denied the same. On the other hand, the accused also examined himself as DW.1 and got marked 18 documents as per -6- NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 Exs.D1 to D18. The defence of the accused is that himself and PW.2-victim girl were loving each other and she was insisting him to marry. At no point of time, he has either kidnapped her or committed forcible sexual intercourse on her. Since he failed to marry PW.2, her father lodged a false complaint against accused.
5. After assessment of oral and documentary evidence placed before the Special Court, learned Special Judge convicted the accused for the aforementioned offences and sentenced him as stated supra. The said judgment of conviction and order of sentence is challenged under this appeal.
6. We have heard the learned counsel Sri Nandkishore Boob for appellant so also learned Additional SPP Sri Siddaling P. Patil for respondent-State.
7. It is the primary contention of the learned counsel for the appellant that the judgment of conviction and order of sentence passed by the Special Court challenged under this appeal suffers from perversity and -7- NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 illegality. Learned Special Judge convicted the accused only based on surmises and conjectures without appreciating the evidence on record on right perspective. He would further contend that the evidence of PW.2-victim girl cannot be relied to convict the accused for the charges levelled against him since there are material contradictions and omissions in her evidence in respect of the alleged incident. He would also contend that the prosecution miserably failed to prove the alleged sexual assault committed by the accused on PW.2. On perusal of the evidence of the Doctor i.e., PW.9 categorically stated in her evidence that there is no recent sexual intercourse committed on the victim. Accordingly, she issued Ex.P11- Medical Certificate. She also stated that there are no such injuries found on the private part of the victim or on her body. In such circumstance, the prosecution failed to prove the alleged sexual act committed by the accused on the victim. He would further contend that the prosecution also failed to prove the age of the victim girl that as on the date of the incident, she was minor. Though the -8- NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 prosecution relied on the evidence of PW.11 i.e., the Principal of HKE Society's Polytechnic College, Kalaburagi, the Transfer Certificate and SSLC Marks Card of the victim girl, the same depicts that the date of birth of the victim is 10.03.1999 and according to the same, the victim was aged about 15 years 6 months. At the same time, the evidence of Doctor-PW.9 and Ex.P11-Medical Certificate issued by her clearly discloses that the victim was aged about 18 to 19 years. In the cross-examination of PW.9, she categorically admitted that the age of the victim was determined by her on going through the evidence of dentist so also considering the x-ray report. In such circumstance, there are contradictory versions in respect of the age of the victim girl. Hence, the prosecution failed to prove the same. According to the learned counsel, in such circumstance, the benefit of doubt in respect of age has to be extended in favour of the accused. Learned counsel would also contend that the evidence of PW.2 clearly discloses that herself and accused stayed together for a period of 20 days and she voluntarily accompanied -9- NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 him from the College and she remained silent for a period of 20 days without informing the act of the accused to anybody including her parents or neighbours. In such circumstance, the prosecution failed to prove the forcible sexual act committed by the accused. Accordingly, he prays to allow the appeal by setting aside the impugned judgment and order.
8. Refuting the above submission, learned Additional SPP would vehemently contend that the judgment challenged under this appeal does not suffers from any perversity or illegality since the learned Special Judge convicted the accused after meticulously examining the evidence available on record in a well reasoned judgment and the same does not call for any interference by this Court. He would further contend that PW.2-victim girl, PW.1 and PW.3 the parents of victim girl clearly supported the case of the prosecution. The victim girl categorically deposed in her evidence about forcible sexual act committed by the accused on her for a period of 20 days against her will. Further, the prosecution also proved
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 that the victim was minor at the time of alleged incident. The certificates i.e., Exs.P13 to P15 issued by PW.11 clearly disclose that the victim was minor at the time of alleged incident. In such circumstance, learned Special Judge has rightly convicted the accused for the charges levelled against him. Accordingly, he prays to dismiss the appeal.
9. Having heard the learned counsel for respective parties so also having perused the documents made available before us, the points that would arise for our consideration are:
(i) Whether the judgment of conviction and order of sentence challenged under this appeal suffers from perversity and illegality?
(ii) Whether the learned Special Judge is justified in convicting the appellant for the offences punishable under Sections 366-A, 376(2)(n), 506, 343 of IPC and Section 6 of the POCSO Act?
10. This Court being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 to consider the witnesses examined and the documents relied upon.
(i) PW.1-Rajakumar, is the father of the victim girl in this case, who lodged the complaint before the respondent-Police as per EX.P1. He reiterated the complaint averments and deposed that his daughter i.e., the victim was aged about 17 years at the time of incident. On 23.07.2015 at about 9:30 a.m., she left the house to go to college, however, she did not return from the college on that day. Thereafter, himself and his family members searched for her and on the next day, he came to know that the accused kidnapped her from the college.
Hence, he lodged the complaint before the Police against the accused. He also stated that later about 20 days, the victim called him through phone and informed that the accused was forcibly confined her in an apartment at Bengaluru and as such, himself and two Police officials went to Bengaluru and traced the accused and the victim and brought them to Kalburagi. Thereafter, they took her
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 to hospital for treatment. He also deposed that the victim has given 164 statement before the Magistrate.
(ii) PW.2 is the victim girl in this case. According to her, the accused used to insist her to love him, though she denied his proposal. Thereafter, when she was going to College, for about three to four times, he informed her to accompany him. When she refused to do so, he threatened her with dire consequences. On that background, on 23.07.2015 at about 9.30 a.m., the accused came to her College and forcibly took her to Kalaburagi City, from there both of them went to Bijapur, in turn they went to Bengaluru and he kept her in an apartment at Jigani. Thereafter, he used to commit forcible sexual intercourse on her everyday. After some days, she called her father. Thereafter, PW.1 and the Police came and rescued her from the accused. She identified her statement made before the Magistrate as per Ex.P2.
(iii) PW.3-Sarika is the mother of the victim. She also reiterated the evidence of PW.1 and deposed that her daughter was missing from 23.07.2015 and thereafter,
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 herself and her husband i.e., PW.1 lodged the complaint before the Police against the accused since they got information about the kidnap of their daughter by the accused.
(iv) PW.4-Mangalabai is the grand mother of PW.2- victim. She also deposed that the victim came to her house Kalagi Village in Summer Vacation and at that time, the accused used to tease the victim and insist her to love him. Though she advised him not to indulge in such act, he continued the same and thereafter, she came to know that the accused kidnapped her and committed sexual intercourse on the victim.
(v) PW.5-Prashanth is the brother of PW.3 and uncle of the victim. He also stated that the accused used to insist the victim-PW.2 to love him and thereafter, they came to know that the accused had kidnapped her and committed sexual act on her. According to him, he also accompanied PW.2 and the Police to Bengaluru while nabbing the accused from the apartment at Jigani, Anekal Taluk, Bengaluru.
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(vi) PW.6-Ambrish is the circumstantial witness. According to the prosecution, the accused requested PW.6 to arrange rented house at Bengaluru. However, this witness totally turned hostile to the prosecution case.
(vii) PW.7-Bhagyajyoti @ Bhagyashri is the tenant in the apartment at Jigani, Anekal Taluk, Bengaluru, where the accused detained the victim. However, this witness also totally turned hostile to the prosecution case.
(viii) PW.8-Vijayakumar and PW.10-Shivayogi are the witnesses to Exs.P8 to P10 i.e., mahazars of recoveries of the clothes worn by the victim and the accused respectively at the time of the alleged incident.
(ix) PW.9-Dr.Ayeshahumera, the Assistant Professor, KBN Medical University. This witness examined the victim on 24.08.2015 and after obtaining the FSL report, gave a final opinion that there was no such sexual act committed on PW.2. She also deposed that the age of the victim girl was 18 to 19 years.
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(x) PW.11-Nijalingappa is the then Principal of Women Polytechnic College HKE. He issued the age proof along with attested copies of SSLC Marks Card and Transfer Certificate of PW.2-victim as per Ex.P13 to Ex.P15 respectively.
(xi) PW.12-Dr.Balachandra is the Medical Officer, who examined the accused and issued Certificate as per Ex.P16 that the accused is capable of performing sexual act.
(xii) PW.13-Narayanarao is the Assistant Engineer of PWD, who prepared the spot sketch as per Ex.P17 and Ex.P18.
(xiii) PW.14-Sampathkumar is the owner of the apartment where the accused and victim stayed for a period of 20 days at Jigani, Anekal Taluk, Bengaluru. However, this witness totally turned hostile to the prosecution case.
(xiv) PW.15-Mohd. Pasha, the then ASI of respondent Police, recorded the statement of the victim
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 girl and sent a requisition to the Court to incorporate Section 376 of IPC and Section 4 of the POCSO Act as per Ex.P20.
(xv) PW.16-H.V.Krishnappa is the PDO, who issued the Demand Register Extract and Assessment Register Extract pertaining to the apartment of one Nagaraju where the accused and victim stayed at Bengaluru as per Ex.P21 and Ex.P22.
(xvi) PW.17-Smt.Saraswathi is the ASI, who brought the accused and the victim from Bengaluru and produced them before Women-PSI on 24.08.2015.
(xvii) PW.18-Shaila S. Pyatishettar is the then PSI of Kalaburagi Mahila Police Station. She received the complaint from PW.1 on 05.08.2015 and registered the FIR against the accused for the offence punishable under Section 363 of IPC as per Ex.P23 and thereafter, drawn the spot mahazar and also recorded the statement of CWs.3 to 7.
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 (xviii) PW.19-Umashankar is the then Police Inspector, who conducted the entire investigation and laid charge sheet before the Special Court against the accused.
(xix) DW.1-Sunil Kumar is the accused in this case. He deposed that himself and the victim were loving each other and the family members of the victim were aware about their love affair, however, his family members were not aware of the same. Since, the family backgrounds of the victim was not good and her maternal uncle was playing madka and involved in criminal cases, the family of the accused refused the marriage proposal. Enraged by the same, they lodged a false complaint against him.
11. On careful perusal of the above evidence available on record, in order to prove the charges levelled against the accused, the prosecution mainly relied on the evidence of PW.2-victim girl so also her parents, i.e., PW.1 and PW.3. On careful examination of evidence of PW.2, she categorically deposed in her evidence that prior to the incident, 3 to 4 times the accused visited her College and
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 insisted her to love. As per the alleged incident is concerned, she stated that on 23.07.2015, the accused came to her College, from there they both went to Kalaburagi City Bus Stop, from there to Bijapur, from Bijapur to Bengalaru i.e., Jigani, Anekal Taluk and they stayed for 29 days i.e., 24.07.2015 to 23.08.2015 in the said place.
12. In the cross examination of PW.2, she categorically admitted that even on the date of incident, i.e., when the accused taking her to Kalaburagi City Bus Stop or from there to Bijapur or from Bijapur to Bengaluru, she did not make any such hue and cry or made an attempt to escape or to inform anybody about the act of the accused. It is her admitted case that they both travelled in the bus and she did not inform the same to anybody. Further, during her stay at Bengaluru in an apartment, which consisting of several flats and in spite of that, she did not inform the act of the accused to anybody including the neighbours or other residence of the said apartment. She also failed to inform the same to her
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 parents for a period of 20 days. In such circumstance, there is a doubt arise in the mind of this Court about her version that the accused forcibly kidnapped her and thereafter, detained her in the house and committed forcible sexual intercourse on her. Though PW.1, PW.3, PW.4 and PW.5 i.e., the parents, grand mother and her uncle deposed about the act committed by the accused, however, they are the hearsay witnesses to the prosecution case. Hence, much credence cannot be given to their evidence. Additionally, to prove the sexual act committed by the accused, the evidence of PW.9-Doctor, who examined the victim categorically deposed in her evidence that based on FSL report she gave a final opinion that "there is no recent evidence of sexual act" and the same is forthcoming in Ex.P11. Further, the prosecution also obtained the FSL Certificate as per Ex.P12 which depicts that either the seminal stains or spermatozoa were not detected in any of the items sent for the FSL. Admittedly, there are no such injuries found either on the private part of the victim or on her body as deposed by
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 the Doctor-PW.9. It is pertinent to mention at this juncture that, PW.9 examined the victim on 24.08.2015 i.e. immediately on the next day she brought by the Police from Bengaluru. According to the victim, from 24.07.2015 till 23.08.2015, the accused forcibly committed sexual intercourse on her. But, as per Doctor-PW.9, who examined the victim on the very next day i.e., on 24.08.2015, there is no such forcible sexual act committed by the accused. In such circumstance, the oral testimony of PW.2-the victim is contrary to the evidence of PW.9 and the Medical Certificate as per Ex.P11. In such circumstance, the once again a doubt arises in the mind of this Court about the genuinity of the prosecution case.
13. In order to prove the age of the victim that she was minor at the time of commission of crime, though the prosecution relied on the SSLC Marks Card and Transfer Certificate issued by PW.11 as per Ex.P14 to Ex.P15, as rightly contended by the learned counsel for the accused/appellant, on perusal of the evidence of Doctor- PW.9, the same depicts that the victim was aged about 18
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 to 19 years. The said opinion of the Doctor is based on the x-ray report so also on the opinion of the Dentist. In such circumstance, the prosecution also failed to prove the age of victim beyond the reasonable doubt that she was minor at the time of alleged incident. No doubt, the Transfer Certificate and the SSLC Marks Card are to be treated as primary documents to consider the age of victim, however, at the same time, weightage also to be given to the opinion of the Doctor for the reason that the same was based on x-ray report and the opinion of the Dentist.
14. The Hon'ble Apex Court in the case of P.Yuvaprakash v. State rept. by Inspector of Police reported in 2023 SCC OnLine SC 846 held that in order to prove the age of the victim girl, equal credence has to be given to the Birth Certificate, Transfer Certificate, the x-ray and Bone Ossification Test.
15. In the case on hand, since there are contradictory version in respect of the age of the victim
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 i.e., Ex.P11 and Ex.P13 to P15, in such circumstance, as held by the Hon'ble Apex Court, in the case of Vinod Katara vs. State of U.P., reported in 2022 SCC OnLine 1204, by referring the case of Ram Suresh Singh v. Prabhat Singh reported in (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar reported in (2008) 15 SCC 223, held in Paragraph 60 is as follows:
The ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt.
16. We are aware that, in a case of sexual assault, the evidence of the sole testimony of the victim can be
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 relied. At the same time, such evidence of victim must be in a sterling quality. The Hon'ble Apex Court in the case of Rai Sandeep alisas Deepu Vs. State (NCT of Delhi), reported in (2012) 8 SCC 21 held in Paragraph No.22 is as under:
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
17. Hence, on applying the above law laid down by the Hon'ble Apex Court to the fact and circumstances of this case, the evidence of PW.2 cannot be termed as a sterling quality. As discussed supra, her silence when the alleged kidnap committed by the accused and thereafter travelling from Kalaburagi to Anekal, Bengaluru and
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 staying there for a period of 28 days without resistance or without any intimation to anybody does not inspire confidence of this Court.
18. Per contra, in order to substantiate the defence of the accused, he produced Ex.D18, i.e., the letter signed by victim, which depicts that herself and accused were loving from past one year and since the family members did not agree for the same, they both went to Bengaluru and married on 26.07.2015. During the course of cross- examination of PW.2, the defence counsel confronted nine photos of herself and the accused, which shows that they both had love affair. The said photographs and letter as per Ex.D18 were admitted by PW.2 in her evidence. In such circumstance, inference can be drawn that the accused and the victim were in love and thereafter, for some reason, the father of the victim lodged the complaint against accused. Further, there is a delay of 14 days in lodging the complaint. As discussed supra, the oral testimony of PW.2 does not corroborates with the medical evidence and the prosecution utterly failed to prove the
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NC: 2024:KHC-K:4529-DB CRL.A No.200071 of 2019 forcible sexual act committed by the accused on victim or the alleged act of kidnap, we are of the view that the judgment of conviction and order of sentence passed by the learned Special Judge calls for interference since the same is suffers from perversity and illegality.
19. Accordingly, we answer point No.1 in the affirmative and point No.2 in the negative and proceed to pass the following:
ORDER
i) The criminal appeal is allowed.
ii) The judgment of conviction and order of sentence passed in Spl.C.POCSO.No.52/2015 dated 16.03.2019 by the II Additional Sessions Judge, Kalaburagi is hereby set aside.
iii) The appellant/accused is acquitted for the charges levelled against him i.e., for the offences punishable under Sections 366-A, 376(2)(n), 506, 343 of IPC and Section 6 of POCSO Act.
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CRL.A No.200071 of 2019
iv) The concerned Jail Authorities are
directed to release the
appellant/accused, if he is not
required in any other case.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
List No.: 1 Sl No.: 2
CT;BN