Karnataka High Court
The State By vs Sathish K on 18 January, 2024
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CRL.A No. 1268 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO. 1268 OF 2023
Between:
The State by
Deputy Superintendent of Police,
Puttur Sub-Division,
Puttur, D.K. District,
Represented by
State Public Prosecutor
High Court Building,
Bengaluru-560 001.
...Appellant
(By Sri P.Thejesh, HCGP)
And:
Digitally signed
by C K LATHA 1. Sathish K,
Location: S/o Late Ramanna Gowda,
HIGH COURT Aged about 28 years,
OF R/at Berike House,
KARNATAKA
Kalmakaru Village,
Sullia Taluk, D.K.-574 239.
2. Smt. Chinnamma,
Aged about 49 years,
Mettinadka House,
Nalkoour Village, Sullia Taluk,
Dakshina Kannada-574 239.
...Respondents
(R1 & R2 - Served, unrepresented.)
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CRL.A No. 1268 of 2023
This Criminal Appeal is filed under section 378(1) and (3)
Cr.P.C., praying to grant leave to file an appeal against the
judgment and order of acquittal dated 18.11.2022 passed by
the V Additional District and Sessions Judge, D.K., Mangaluru,
sitting at Puttur, D.K. In Spl.C.No.5001/2019 in acquitting
respondent No.1 - accused for the offences punishable under
Sections 363, 366, 376(2)(j)(n), 417 of IPC, Sections 5 and 6
of POCSO Act and Sections 3(1)(w)(i)(ii), 3(2)(V), 3(2)(Va) of
SC/ST (POA) Amendment Act, 2015 and etc.
This Criminal Appeal, coming on for orders, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
Heard Sri Thejesh P, learned High Court
Government Pleader on I.A.No.1/2023. There is a
delay of 93 days in filing the appeal. Sufficient
cause is shown for the delay. Therefore
I.A.No.1/2023 is allowed. Delay is condoned. But
when we hear the appeal for admission, we find
that there are no merits to admit the appeal.
2. The State has challenged the judgment
dated 18.11.2022 in Spl.C.No.5001/2019 on the
file of the V Additional District and Sessions Judge,
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Dakshina Kannada Mangaluru (Sitting at Puttur)
acquitting the accused/respondent No.1 of the
offences punishable under Sections 363, 366,
376(2)(j)(n) and 417 of IPC, Sections 5 and 6 of
POCSO Act and Sections 3(1)(w)(i)(ii), 3(2)(v) and
3(2)(va) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Act, 2015.
3. The prosecution case is that PW1 was
subjected to sexual assault by the accused and
consequently she became pregnant and delivered a
baby. PW2 the mother of PW1 gave a report to the
police on 24.01.2019. Investigation lead to filing
of charge sheet.
4. During trial, including the victim girl,
PW2 and PW3, the parents of the victim turned
hostile. They did not support the prosecution
case. The evidence of PW1 discloses that she had
sex with the accused voluntarily. Her clear
evidence is that when she was returning from
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college, she developed acquaintance with the
accused in the month of October, 2017 and
thereafter they used to meet very often. In the
month of January, 2018, both of them went to
Mangaluru and spent a night in a lodge and had
sex consensually. She gave consent because the
accused promised to marry her. This was not
known to her parents. Even thereafter they had
consensual sex and when she was pregnant of 7 or
8 months, her parents came to know about it.
Since she resiled from the prosecution case, she
was subjected to cross examination by the public
prosecutor. Even in the cross examination the
prosecutor could not extract any answer in favour
of the prosecution.
5. If PW1 was a minor, her consent was of
no consequence and therefore her age as on the
date of the first incident is important. In proof of
the same the prosecution produced Ex.P19, a letter
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issued by the School stating that the date of birth
of PW1 is 11.10.2001. The trial court has not
believed this document inasmuch as it is not a
primary proof that the prosecution is expected to
produce for establishing the age. Very
conspicuously PW1 has stated in her evidence that
her age was more than 18 years. If this answer is
considered, the date of birth mentioned in Ex.P.19
as 11.10.2001 becomes difficult to be believed.
Moreover Ex.P19 does not fall within the
requirement of Sub-section (2) of Section 94 of
Juvenile Justice (Care and Protection of Children)
Act, 2015. Ex.P19 cannot be considered as a proof
for age. The trial court has come to conclusion to
acquit the accused because of the age factor.
Even after reassessment of the evidence in this
regard, we are of the opinion that it is doubtful
that PW1 was a minor on the date of first
intercourse. We do not find any merit in this
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appeal. Therefore appeal is dismissed as not
worth admission.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
