Karnataka High Court
Ibrahim S/O Mohammed vs State Of Karnataka on 21 November, 2025
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NC: 2025:KHC:48140
CRL.A No. 614 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 614 OF 2013
BETWEEN:
IBRAHIM
S/O MOHAMMED
AGED 30 YEARS
R/O ATTIGUNDI VILLAGE
JAGRA HOBLI
CHIKKAMAGALUR TALUK AND DISTRICT.
...APPELLANT
(BY SRI. K RAVISHANKAR ., ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY ITS
CIRCLE INSPECTOR OF POLICE
Digitally signed RURAL POLICE STATION
by JUANITA
THEJESWINI CHIKKAMAGALUR.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. B. LAKSHMAN., HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND CONVICTION DATED 04.06.2013 PASSED BY
THE PRL. SESSIONS JUDGE, CHIKMAGALUR IN S.C.NO.73/2012
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 376 OF IPC, AND SENTENCED THE APPELLANT/ACCUSED
TO UNDERGO R.I., FOR 7 YEARS AND PAY FINE OF
RS.1,25,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO
FURTHER IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE
P/U/S 376 OF IPC AND ETC.
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CRL.A No. 614 of 2013
HC-KAR
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
The appellant has preferred this appeal against the judgment of conviction dated 04.06.2013 and order on sentence dated 06.06.2023 passed by the Principal District & Sessions Judge, Chikkamagalur, in S.C.No.73/2012.
2. For the sake of convenience, the parties herein are referred to their rank as before the trial Court.
3. The brief facts leading to this appeal are that the Circle Inspector of Police, Rural Police Station, Chikkamagaluru, submitted a charge sheet against the accused for the offence under Sections 366, 343, 376 IPC. It is alleged by the prosecution that CWs.4 and 5 are the parents of victim girl-CW1. They were residing in Attigundi and working as coolies. They have two daughters and one son. CW1 studied in the house of CW6 at Kolludoddi from 1st to 5th standard and thereafter, she used to go to -3- NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR Allampura School and was staying at Attigundi. CW1 used to go to the school by SMS private bus and the accused was the driver of the said bus. CW1 used to tell to her parents that accused used to tease her saying that he loves her and intends to marry her and that he will look after her well. Thus, he was insisting her to love him. When the accused told so, CW1 told that she is minor and she has not attained the marriageable age and is not willing to marry him. In spite of that, the accused used to insist her. When the said fact was said to the parents of CW1, they called CWs.6 and CW8 and all of them advised the accused not to do so. In spite of the advice, the accused continued his earlier behaviour towards CW1 and was pestering her. As such CW1 stopped going to school and she shifted the residence to Kalludoddi. When they started residing at Kalludoddi, on 16.04.2012 CW1 was taken by CW8 to his house at Mylimane under the apprehension that accused may come and insist her to marry him.
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4. It is the further case of the prosecution that when CW1 was staying in the house of CW8 on 23.04.2012 at about 04.30 p.m., CW1 went to bring water from the Boothanagudde water tank and at that time CW8 and 9 were there in the house. At that time, the accused came in an Autorikshaw and by telling that her father is sick forcibly took her into the Auto. At that time, CW10 and CW12 saw the accused taking CW1 in the Auto. After taking CW1 in the Auto, the accused brought her to Chikkamagaluru at about 06.30 p.m. and took her to a cloth shop in M.G.Road and got purchased her two dresses and thereafter, took her in a car to Birur. There he went to the house of CW11 and after talking with CW11, he took CW1 into the said house. CW1 saying that they can stay there for 3 days and when they were staying there during night hours the accused sexually assaulted her and confined her for 3 days in the house of CW11. He even threatened her by saying that she should not disclose the said fact to anybody. When the parents did not trace -5- NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR CW1-Victim, CW8 informed the said fact to CW5. Thereafter, he went to the police station and filed a missing complaint. The Investigating Officer submitted the charge sheet against the accused for the aforesaid offences.
5. After filing the charge sheet, case was registered in C.C.No.611/2012. After committal to the Court of Sessions, case was registered in S.C.No.73/2012.
6. After hearing both sides, Trial Court has framed the charges for the offences punishable under Sections 366, 343 and 376 IPC. Same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.
7. To prove the guilt of the accused, prosecution got examined 15 witnesses as PWs.1 to 15 and got marked 18 documents at Exs.P1 to P18 and five material objects as M.Os.No.1 to 5. On closure of prosecution side evidence, statement under Section 313 of Cr.PC., was recorded. Accused has totally denied the incriminating materials -6- NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR appearing against him. But he did not choose to lead any defence evidence on his behalf.
8. Having heard the arguments on both sides, the Trial Court has acquitted the accused for the offence punishable under Sections 366 and 343 of IPC. However, the Trial Court has convicted the accused for the offence under Section 376 IPC and passed sentence to undergo Rigorous Imprisonment for 7 years and to pay a fine of ₹1,25,000/-. Being aggrieved by this judgment of conviction and order on sentence, the appellant/accused has preferred this appeal.
9. The learned Counsel for the appellant- Sri.K.Ravishankar, would submit that the Sessions Judge has committed an error in convicting the appellant solely on the basis of the evidence of PW1. It is the case of the prosecution that while PW1 went to fetch water near Bhoothanagudde water tank, the accused came in an Auto and took her to Birur to the house of PW6 (CW11) and stayed there for 3 days. During the stay, the accused -7- NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR forcibly sexually assaulted her by closing her mouth with a cloth and thereby committed rape. There is no evidence on record that the victim has sustained any sort of abrasion, contusion or any other sort of injuries on her body. That being so, the question of forcible sexual assault does not arise and the version of PW1, cannot be believed.
10. It is further submitted that the learned Sessions Court ought to have noticed that the evidence of PW1 is full of contradictions and omissions. The evidence of PW1 is an improved version and many statements, which were not told before the Investigating Officer have been made while leading evidence before the court. That being so, the evidence should have been discarded and prosecution's evidence cannot be the sole basis to convict the appellant.
11. It is further submitted that PW2 and PW3, the Doctors who examined the victim, have categorically stated that no external injuries were found over the body -8- NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR of the victim. In the cross-examination, the Doctors have also admitted that in a forceful intercourse there will be abrasions at the forehead region. That there is no iota of evidence to prove the theory of rape or forcible sexual intercourse by the appellant.
12. It is further submitted that the learned Sessions Judge ought to have noticed that PW6, in whose house the alleged rape has been committed, has turned hostile. The prosecution has cross-examined the witnesses in detail and nothing has been elicited. Therefore, the theory of the alleged rape in the house of PW6 does not hold water when the same is coupled with the un-corroborative evidence of PW1. The prosecution has relied on Exhibit P9- School Admission Register Extract to prove the age of the victim. It is not a valid document.
13. It is further submitted that PW10, the mother of the victim has clearly admitted in her evidence that the date of birth of the victim was 30.10.1993. Hence, the age of the victim, as on the date of commission of offence, -9- NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR comes to 19 years 6 months 10 days. The Investigating Officer has not followed the mandatory provisions of Juvenile Justice (Care and Protection of Children) Rules 2016.
14. Further, learned Counsel would submit that when the theory of the prosecution, based on the kidnapping and wrongful confinement, does not hold water or not even supported by any sufficient corroborative evidence, the question of rape by the appellant solely on the unreliable evidence of prosecution is unjustified. The Trial Court has not properly appreciated the evidence on record in accordance with land and facts. The Trial Court has committed an error in not discussing about the material contradiction, omission and improvements.
15. In order to substantiate his contentions, learned Counsel for the appellant has relied upon the following decisions:
(1) Krishnan Kumar Mallik Vs. State of Haryana - AIR 2011 SC 2877,
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR (2) K R Thimmappa Gowda Vs. State of Karnataka - AIR 2011 SC 2564 (3) Almelu & Another Vs. State Represented by Inspector - AIR 2011 SC 715 (4) Surjan Vs. State of MP - 2002- AIR (SC) 476 (5) Criminal Appeal No.1445/2022 decided on 19.01.2024 and (6) Criminal Appeal No.210/2021 (A) decided on 07.07.2025.
16. Per contra, learned High Court Government Pleader-Sri.B.Lakshman, opposed this appeal stating that the Trial Court has properly appreciated the evidence on record and convicted the accused for the alleged commission of offences and sought for dismissal of the appeal.
17. Having heard the arguments on both sides and on perusal the materials placed before this Court, the following points would arise for my consideration:
i. Whether the Trial Court has erred in convicting the appellant/accused for the
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR offence punishable under Section 376 of IPC?
ii. What order?
18. My findings to the above points are as under:-
i. Point No.1 : In the Affirmative; ii. Point No.2 : As per final order for the following:
REASONS
19. Point No.1: The Circle Inspector of Police, Rural Police Station, Chikkamagaluru, submitted a charge sheet against the accused for the offence under Sections 366, 343, 376 IPC.
20. Before appreciating the evidence on record, it is necessary to mention here the provisions of offence punishable under Section - 375 Rape in IPC. Section 375 of IPC reads as follows:
" 375. Rape. - A man is said to commit "rape"
who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First. - Against her will.
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CRL.A No. 614 of 2013
HC-KAR
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation. - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception. - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.".
Sixthly. - With or without her consent, when she is under eighteen years of age.
Seventhly.-When she is unable to communicate consent.
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. -A medical procedure or intervention shall not constitute rape.
Exception 2. - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
21. Before examining the material placed before this Court, it is necessary to mention here as to the decision of Hon'ble Apex Court in the case of JOTHIRAGAWAN v. STATE REPRESENTED BY INSPECTOR OF POLICE AND ANOTHER rendered in Special Leave Petition (Crl.) No.6821 of 2024 decided on 24th March 2025. In the said decision, it is observed as under:
"7. We have gone through the First Information Statement made by the complainant and the statement given before the Police which would form the basis of the
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR trial. Unless the ingredients of an offence under Section 376 of the I.P.C. comes forth from these documents; which read together reveal identical statements, there cannot be any continuation of the prosecution. In this context, we also have to notice Prithivirajan from which paragraph 7 is extracted hereunder:
"7. The instant case is one consensual relationship between the appellant and prosecutrix. Even otherwise, it does not appear from the record that the initial promise to marry allegedly made by the appellant was false to begin with. Perusal of FIR itself suggests that the alleged promise to marry could not be fulfilled by the appellant due to intervening circumstances. Consequently, the relationship ended because of which the present FIR came to be registered. Under these circumstances, letting the appellant face trial would be nothing short of an abuse of the process of the Court. This cannot be permitted."
22. It is also relevant to mention here as to the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which reads as under:
"94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
23. It is evident from a conjoint reading of the above provisions that to resolve whatever dispute with respect to the age of a person that arises in the context of
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR her or him being a victim under the POCSO Act, the Courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in the order of which the JJ Act requires consideration are that the concerned Court has to determine the age by considering the following documents:
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
24. Section 94 of the JJ Act clearly indicates that the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board has to be firstly preferred in the absence of which date of birth certificate issued by a Corporation or Municipal Authority or a Panchayat can be considered and it is only thereafter, in the absence of
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR these documents, age is to be determined through 'ossification test' or by any other latest medical age determination test conducted on the orders of the concerned authority, i.e., Committee or the Board or Court'.
25. In the case on hand, the prosecution has produced Ex.P.9-School Admission Register Extract, issued by the Head Master, Government Higher Primary School, Allampura, Chikkamagaluru Taluk, which reveals that the date of birth of the victim is 30.10.1995. The incident took place on 20.04.2012. PW.5, who issued the said certificate has deposed that he has issued the certificate at Ex.P9 and he does not say as to on what basis he has entered the date of birth of the victim as 30.10.1995 in the school records.
26. PW.10 mother of the victim, has clearly admitted in her cross-examination that the date of birth of the victim is 30.10.1993.
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27. The medical officer has examined this victim on 27.04.2012 and issued certificate as per Ex.P6. The medical officer has not complied the mandatory provisions of Section 164A of the Code of Criminal Procedure, 1973. The medical officer has not taken any steps to determine the age of the victim.
28. The alleged incident took place on 23.04.2012. The date of birth of the victim is 30.10.1993 as deposed by PW10-mother of the victim. Then the age of the victim, as on the date of alleged incident, comes to 18 years 5 months and 23 days. Accordingly, the prosecution has failed to prove that the victim was below the age of 18 years as on the date of commission of offence.
29. The Trial Court has acquitted the accused for the offence under sections 366 and 343 of Indian Penal Code. The State has not preferred any appeal against the judgment of acquittal for the offence under sections 366
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR and 343 of Indian Penal Code. The only offence alleged against the accused is under Section 376 of IPC.
30. PW1 has deposed in her examination-in-chief that it is stated in Ex.P1 that the accused has promised to marry the victim and had sexual intercourse with her despite her resistance.
31. The Investigating Officer has not produced the accused before the learned Magistrate to record the statement under Section 164 of Cr.P.C.
32. During the cross-examination, PW1 has clearly stated as under:
"
! " #$% . & ' ( ) *+
,-. /0 1 2. 3 *
! " , 5 6 72 . /
! " & 8 9 :; * , 5 6
72 ."
She has not resisted at the time of sexual intercourse with the accused and she has not sustained any injuries at the time of sexual intercourse.
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NC: 2025:KHC:48140 CRL.A No. 614 of 2013 HC-KAR
33. This admission made by PW1 is not consistent with the contents of the complaint. Admittedly PW1 had traveled in an auto and car with the accused and the victim did not raise any alarm for help. This shows her conduct and behaviour during the whole process and render her evidence shaken and untrustworthy. The evidence of PW1, as also, the case of the prosecution is not supported with the medical evidence. PW2-Doctor has opined in Ex.P6 that no external injuries were found over the body of the victim and on examination of her genitals, pubic hair distribution was normal. No abrasion or injuries found over the fourchette region. No discharge. Vagina admitted two fingers easily and stretchable without any pain and discomfort. No external injuries were found on the body of victim. Further he has given his opinion that there are no evidence suggestive of recent sexual act. PW6-Latha, in whose house the alleged commission of rape is committed, has not supported to the case of prosecution.
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34. In the case on hand, absolutely there is no cogent, consistent, corroborative, clinching evidence to prove the commission alleged of rape said to have been committed by the accused. Even if it is presumed that there is any sexual intercourse between the accused and the victim, same is a consensual one and it does not come under the definition of "rape" under Section 375 of IPC.
35. Considering the facts and circumstances of the case and keeping in mind the aforesaid judgments of Hon'ble Supreme Court, I am of the opinion that the trial Court has not properly appreciated the evidence on record.
36. On appreciation of the evidence on record, I do not find any acceptable legal evidence to convict the accused for the offence under Section 376 of Indian Penal Code. Accordingly, I answer Point No.1 in Affirmative.
37. Point No.2.: For the aforesaid reasons and discussions, I proceed to pass the following:
ORDER
(i) Appeal is allowed.
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(ii) The judgment of conviction dated 04.06.2013 and order on sentence dated 06.06.2013 passed in S.C.No.73/2012 by the Principal Sessions Judge, Chikkamagalur, are set aside.
(iii) Accused/appellant is acquitted of the offence under Section 376 of Indian Penal Code.
(iv) The Trial Court is directed to refund the deposited amount by the accused in accordance with law.
(v) Registry is directed to send a copy of the order along with Trial Court records to the concerned court.
Sd/-
(G BASAVARAJA) JUDGE DL, DHA CT: JL