Karnataka High Court
Raju S/O Papu Rathod @ Lamani vs The State Of Karnataka on 6 March, 2026
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NC: 2026:KHC-K:2163
CRL.A No. 200064 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 200064 OF 2022
(374(Cr.PC)/415(BNSS))
BETWEEN:
RAJU S/O PAPU RATHOD @ LAMANI
AGE: 35 YEARS, OCCU: COOLIE,
R/O UPPALADINNI TANDA,
TQ: BASAVANA-BAGEWADI,
DIST: VIJAYAPURA-586213
...APPELLANT
(BY SRI. R. S. LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE SHO.,
Digitally signed by
SHIVALEELA BASAVANA-BAGEWADI P.S.,
DATTATRAYA
UDAGI REP. BY THE ADDL. STATE PUBLIC PROSECUTOR
Location: HIGH HIGH COURT OF KARNATAKA
COURT OF
KARNATAKA KALABURAGI BENCH -585102
2. VICTIM REP. BY HER FATHER
BASAVARAJ S/O PUNAPPA RATHOD
AGE: 61 YEARS, OCC: PENSIONER
R/O INDIRA NAGAR
BASAVAN BAGEADI
DIST: VIJAYAPUR-586203.
...RESPONDENT
(BY SRI.JAMADAR SHAHABUDDIN, HCGP FOR R1;
R2 SERVED)
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NC: 2026:KHC-K:2163
CRL.A No. 200064 of 2022
HC-KAR
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
(OLD) U/SEC. 415 OF BNSS (NEW) PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DT. 07.07.2021
AND 08.07.2021 PASSED IN SPECIAL CASE (POCSO.)
NO.16/2016 BY THE HONOURABLE ADDL. SESSIONS JUDGE
AND FTSC-I (POCSO), VIJAYAPURA AND ACQUIT THE
APPELLANT OF ALL THE CHARGES.
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/accused has preferred this appeal against the judgment of conviction dated 07.07.2021 and order on sentence dated 08.07.2021 in Special Case (POCSO) No.16/2016 by the Addl. Sessions Judge/FTSC-I (POCSO), Vijayapura (for short, 'the Trial Court').
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The brief facts leading to filing of this appeal is that, Basavana Bagewadi Police have laid charge-sheet -3- NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR against the accused for the offence punishable under Sections 344, 366, 376 of IPC and Section 5(l) of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act').
4. It is alleged by the prosecution that on 01.10.2015 at about 12 hours the victim was allowed to accompany the accused to marry him and thereby depriving the custody of victim who is minor from her parents, the guardian of the victim, and thereby committed offence of kidnapping and thereafter detained the victim from the custody of the accused from 01.10.2015 to 08.01.2016 (exceeding 10 days) thereby committed the offence of wrongful confinement. Further it is alleged that during the stay under the custody of accused, the accused has occasioned sexual intercourse 3 to 4 times a week knowing that the victim is minor. Thus, the accused has committed the offence punishable under Section 376, 366, 344 of IPC and Section 5(l) read with 6 of POCSO Act.
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5. After filing the charge-sheet, case was registered in Special Case (POCSO) No.16/2016. Accused appeared before the Trial Court and enlarged on bail. The Trial Court has framed the charges for the alleged offences. The same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, the prosecution, in all, has examined 19 witnesses as PWs.1 to 19; and got marked 19 documents as Exs.P1 to P19. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. was recorded. Accused has denied the charges leveled against him. However, he did not choose to lead any defence evidence on his behalf.
7. Having heard the arguments of both sides, the Trial Court has convicted the accused for the offence punishable under Section 366, 344, 376 of IPC and Section 5(l) read with Section 6 of the POCSO Act and -5- NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR passed sentence. Being aggrieved by the judgment of conviction and order on sentence, the appellant has preferred this appeal.
8. The learned counsel for the appellant would submit that the judgment of conviction and order on sentence passed by the Trial Court is legally incorrect and suffers from non-application of mind, as same is against the facts, evidence and materials on record. The Trial Court has ignored the elementary principles of evidence and the finding recorded by the Trial Court is against the basic points of criminal jurisprudence. The Investigating Officer has not complied the mandatory provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the J.J.Act'). The Investigating Officer has not produced the birth certificate/SSLC certificate/ossification certificate. The Investigating Officer has not explained anything as to non production of these materials before the Court. The Investigating Officer has produced a school certificate, -6- NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR which is at Ex.P11. On the basis of Ex.P11, Ex.P10 is issued, which is not permissible under law and also same does not come under the provisions of Section 94 of J.J.Act.
9. To substantiate his arguments, he relied on the decision of the Hon'ble Supreme Court in the case of P.Yuvaprakash v. State Rep. by Inspector of Police reported in AIR 2023 SC 3525. Further he would submit that while recording statement under Section 164(5) of Cr.P.C. which is marked at Ex.P5, the victim has not whispered anything as to the alleged commission of rape. The evidence of PW.3-victim is not consistent with the statement under Section 164 of Cr.P.C. The medical evidence is also not supported the case of the prosecution. The Trial Court has not properly appreciated the evidence on record in a proper perspective. On all these grounds, sought to allow the appeal.
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10. The learned High Court Government Pleader would submit that, the Trial Court has properly appreciated the evidence on record in a proper perspective and there are no grounds to interfere with impugned judgment of conviction and order on sentence passed by the Trial Court and sought for dismissal of appeal.
11. Having heard the arguments on both sides, the following points would arise for consideration:
1) Whether the prosecution proves beyond all reasonable doubt that as on the date of commission of offence, the victim was a child as defined under Section 2(d) of the POCSO Act?
2) Whether the prosecution proves beyond all reasonable doubt that the accused has committed the offence under Section 5(l) read with Section 6 of POCSO Act?
3) Whether the prosecution proves beyond all reasonable doubt that the accused has committed the offence under Section 344, 366 and 376 IPC?-8-
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4) What order?
12. My answer to the above points are as under:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: In the Negative Point No.4: As per final order
13. Point No.1: It is the case of the prosecution that the date of birth of the victim was 01.06.1999 and as on the date of offence, her age was 16 years 4 months. To substantiate this, the Investigating Officer has produced Exs.P10 and 11. Ex.P10 is the caste and birth certificate issued by the Headmaster, New High School, Basavana Bagewadi. Ex.P11 is the Admission Register Extract. To substantiate these documents, prosecution has examined PW.7-Prema Bhagat, Head Master, New High School, Basavana Bagewadi. She has deposed as to the issuance of Exs.P10 and P11. During her cross-examination, she has clearly admitted that the parents of the victim has not -9- NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR informed as to the date of birth of the victim. The Investigating Officer has not explained anything as to non- production of birth certificate, SSLC certificate or ossification certificate. The Investigating Officer has not complied with the mandatory provisions of Section 94 of J.J.Act.
14. The Hon'ble Supreme Court in the case of P.Yuvaprakash (supra), at paragraph Nos.18 and 19 has held as under:
"18. Reverting to the facts of this case, the headmaster of M's School, CW-1, was summoned by the court and produced a Transfer Certificate (Ex.C-
1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons [2012] 9 SCR 224 served by the court and deposed that 'M' had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997.
She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.e.,
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NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR the date of birth, Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross- examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-
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NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR 20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-
9."
15. In the case on hand, the victim herself has stated her age as '18' years. The Medical Officer has not complied the mandatory provisions of Section 164-A of Cr.P.C. and also Section 34 of POCSO Act. Viewed from any angle, the prosecution has failed to place any cogent, corroborative or acceptable legal evidence to prove the age of the victim. Accordingly, prosecution has failed to prove beyond all reasonable doubts that the victim come under the definition of "child" as defined under Section 2(d) of POCSO Act. Hence, I answer point No.1 in the Negative.
16. Point No.2: Since the prosecution has failed to prove that the victim was a child as defined under Section 2(d) of POCSO Act as on the date of commission of offence, the question of committing offence under the
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NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR penal provision of POCSO Act, does not arise. Accordingly, I answer point No.2 in the Negative.
17. Point No.3: With regard to the offence under Section 344, 366 and 376 are concerned, the Investigating Officer has produced the victim before the jurisdictional Magistrate. The Magistrate has recorded the statement of victim under Section 164(5), which is at Ex.P5. The same is recorded on 11.01.2016. In this statement under Section 164(5) of Cr.P.C., the victim has not whispered anything as to her wrongful confinement or rape said to have been committed by the accused. On the contrary, she has clearly deposed on oath that the accused has not given type of ill-treatment to her.
18. PW.3-victim, in her evidence has deposed that accused informed that he loves her. For that she refused. Accused used to torture her stating that he loves her. Then he threatened that if she does not have love affair with him, he would tell each and everyone that he is loving
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NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR her and would spoil her name in the society. So under fear, she started to love him. Accused used to come to her house when nobody was there in the house and committed penetrative sexual assault on her. She told him that he should not come to her house. Then accused told that we should not stay here and told her to come over to Almatti. Accordingly, she went to Almatti. When she was in Almatti railway station, accused came there and took her to Bagalkot in an auto. Then they went to Belagavi by bus. From Belagavi they went to Kudal in Maharashtra. He told that, he has friends at Kudal and took her there. They stayed in a room near railway station for 10-12 days. When she was at Kudal, accused has committed penetrative sexual assault on her. He did not get any job, so, he took her to Telegaon area at Pune. He took a room on rent, which belongs to Shelke. They stayed there for two months. Accused has committed penetrative sexual assault on her against her will. Again when he did not get any job, once again accused took her to Kudal. At Kudal
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NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR once again they stayed 10-12 days. During this period also once again accused harassed her. So she called her father on phone. Accused told that she should not inform where exactly staying to the parents. She did not tell where she was. Then, when she was about to inform, he has snatched the phone. Later, the police came to the spot. Accused ran away from the spot leaving her, when he saw the police. Police took her back to the police station. The incident has occurred about three years ago. Her parents came to know about her and arrived to the police station. She told everything to her parents. She narrated all the incidents to the parents and the police. She gave statement as per Ex.P4. Then she was taken to the hospital for medical examination. She gave her statement before the Magistrate as per Ex.P5.
19. On careful examination of the evidence of PW.1, it is crystal clear that admittedly she was having love affair with the accused and she voluntarily went along with him and stayed at Kudal for 8-10 days and at Talegaon for a
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NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR period of two months. The statement under Section 164(5) Cr.P.C., which is marked as Ex.P5 has not been disputed by the victim. She has clearly deposed in her evidence during trial, that she has given statement before the Magistrate as per the contents of Ex.P5. When the victim herself has admitted the statement under Section 164(5) of Cr.P.C., that the accused has not committed any offence, the Investigating Officer ought not to have filed the charge sheet against the accused. However, on the basis of the school certificate, the Investigating Officer has considered that the victim was minor at the time of incident and filed the charge sheet for the alleged commission of offences. The prosecution has failed to place cogent, convincing, clinching, corroborative and acceptable credible evidence before the Court to prove the guilt of the accused for the offence under Sections 344, 366 and 376 IPC. Further, the prosecution has failed to prove that the accused has committed the alleged offences. Hence, I answer point No.3 in negative.
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20. Point No.4: For the aforestated reasons and discussions, I proceed to pass the following:
ORDER
(a) The appeal is allowed.
(b) The judgment of conviction dated 07.07.2021 and order and sentence dated 08.07.2021 passed in Special Case (POCSO) No.16/2016 by the Addl. Sessions Judge/FTSC-I (POCSO), Vijayapura, is hereby set aside.
(c) Consequently, the appellant-accused is acquitted of the offences punishable under Sections 366, 344 376 of IPC and Section 6 of Protection of Children from Sexual offence Act.
(d) Bail bond of the accused and that of his sureties, if any, shall stand cancelled.
(e) Fine amount, if any, deposited by the appellant/accused is ordered to be refunded to him on due identification after appeal period is over.
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NC: 2026:KHC-K:2163 CRL.A No. 200064 of 2022 HC-KAR Registry to send back the Trial Court records along with certified copy of this judgment to the concerned Court forthwith.
Sd/-
(G BASAVARAJA) JUDGE SDU,MSR List No.: 1 Sl No.: 26 CT-BH