uncorroborated with the evidence of other witnesses. Hence,
her evidence is required to be rejected as not acceptable and
reliable.
12. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW3-Nagaraj, father of the victim. He has deposed that, in
2017, the victim was studying in 8th standard. The victim
complained about her stomach pain, hence he informed the
same to his mother, thereafter the victim was taken to Hospital
and Doctor said that she was pregnant. The victim girl told him
that the appellant is the root cause to it. In the cross-
examination, he admitted that other boys and girls would
accompany the victim to school in the bus. He does not know
the date of birth of the victim and he has not given any form to
the school at the time of admission. The victim used to tell to
her mother even the minor ailments like headache, fever etc. If
that being the case, if the victim not revealing about the
alleged incident to her parents, creates grave suspicion as to
the case of the prosecution. Hence, the evidence of this witness
is not acceptable and cogent. His evidence is hearsay and not
admissible under section 60 of Indian Evidence Act.
- 13 -
13. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW4-Venkataswamy, who is the uncle of the victim. He has
deposed that, victim told him that on 28.11.2017, his brother
PW3, called him through phone and informed that the victim
has stomach pain and his brother asked him to come and see
the victim. Then he has sent his mother to the house of PW4,
after enquiry he came to know that the victim is suffering from
stomach pain. His mother also revealed that the victim is
pregnant and the appellant is the root cause for it. In the cross-
examination, he admitted that he only came to know about the
pregnancy through his mother. Hence, his evidence is hearsay
and not admissible under Indian Evidence Act. He visited the
victim's house during her pregnancy and yet she has not
revealed anything. He would have not known who is the root
cause of it.
14. It is further submitted that PW5-Muniraju, PW6-
Anjinappa and PW8-Venu are the alleged Panch witnesses to
the spot mahazar Ex.P2. All of them have turned hostile. None
of them admitted that the police conducted the spot mahazar in
their presence at the place shown by the victim. Hence, the
prosecution failed to prove the place of occurrence. The learned
- 14 -
Sessions Judge committed grave error in relying upon the
evidence of PW7-Pradeep Kumar, who is the Head Master of
Arabikotthanuru High School. He has issued age certificate as
per the records of admission register extract-Ex.P6 and has
stated that her date of birth is 03.02.2004. In the cross-
examination, he has admitted that he was not the author of the
said admission register extract. He further admitted that at the
time of admission, the parents of the children should furnish
the birth certificate, but in the register maintained in their
school there is no such entry regarding the birth certificate of
the victim. Hence, the prosecution has not proved the date of
birth of the victim that she is a minor. The law of the land is
that, to prove the date of birth of the victim, the Head Master
who made the entry in the primary school admission register
extract is required and the prosecution is required to collect the
birth certificate from the primary school.
15. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW9-Dr.Byappa Reddy, who is a Radiologist at SNR Hospital,
Kolar. Не has deposed that, on 02.12.2017, he examined the
victim and stated that the age of the victim is more than 13
years and less than 15 years, accordingly he has issued the
- 15 -
certificate as per Ex.P7. In the cross-examination, he has
admitted that he has not given Ex.P7 and also he has not
written its contents. He cannot say the probative value of the
said document. In the scanning report-Ex.P8, there is no full
address to show that it belongs to the victim. Hence, the said
fact is not proved by the prosecution.
16. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW10-Manjunatha, who is the Junior Engineer, PWD, Kolar. In
his evidence, he has stated that on 22.12.2017, as per the
request made by the police, he has visited the spot and
prepared a sketch as per Ex.P9. The said place is adjoining
Bengaluru-Madras main road. Hence, chances of occurrence of
alleged offence in the said place is remote. PW11-Rahul is a
Village Accountant, who issued RTC pertaining to Sy.No.64/1,
which belongs to Krishnappa. The learned Sessions Judge
committed grave error in relying upon the evidence of PW12-
Doctor D.K. Ramesh, who has medically examined the
appellant and issued report as per Exs.P12 and P13. In the
cross-examination, he admitted that the Government has
issued a proforma to issue the certificate, but he has not issued
as per the proforma and he has also not mentioned on what
- 16 -
basis he came to know that the appellant is mentally and
physically fit to have the intercourse and also about the tests
conducted to know that the appellant is potent. It shows that
he has not examined the appellant.
17. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW15-Doctor Mamatha, who has collected the sample blood
from the appellant on 28.12.2017, to send the same to FSL. In
the cross-examination, she admitted that to send the blood
samples of the victim and appellant, she has no definite
guidelines and also she admits that there are certain procedural
aspects to collect the blood samples to send to FSL. If they
have not adopted the guidelines, then there are chances of
report going wrong. To collect the blood samples, the DNA
center has given the forms by showing who will collect the
blood. She further admitted that she has not collected the
blood samples, one Narayanaswamy said to be the Lab
Technician, had collected the blood samples. At the time of
collecting the blood samples, they should wear the mask and
gloves. She also not obtained the signature of the Lab
Technician. To send it to the DNA test, minimum 5 ml blood
should be collected, if not it may lead to wrong report. Further,
- 17 -
she admitted that at the time of collecting blood samples there
should be 2 witnesses. The signatures and addresses of the
said witnesses are supposed to be mentioned in the said
application and the said blood should be preserved in a
prescribed container. But, it is not mentioned in Ex.P14. The
way in which she has given the evidence is not reliable and
acceptable, hence, her evidence is required to be rejected in
toto.
18. It is further submitted that PW16-C.S.Nagaraj,
Head Constable had took the appellant to SNR Hospital on
28.12.2017, he brought the report said to have been given by
the Doctor. In the cross-examination, he admitted that he did
not know at what time he has produced the appellant before
the Doctor and he was standing outside the room when the
Doctor was examining the appellant. PW17- Mamatha, a
Women Police Constable had took the victim to the SNR
Hospital on 01.12.2017 and on the next day she brought back
the victim and produced before the Investigating Officer. On
05.12.2017, she brought 6 articles and the report, said to have
been given by the Doctor and produced before the
Investigating Officer. In the cross-examination, she admitted
that at the time of taking the victim to the SNR Hospital, the
- 18 -
Investigating Officer has not given the memo. The Doctor has
not given any report to her. She has also not given her report
to Investigating Officer. On the articles there was no seal and
date from the Hospital. Their evidence does not inspire
confidence, since it is not corroborative with the victim and the
Investigating Officer.
19. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW18-Dr.Santhosh Prabha. He deposed on 03.04.2018, he was
summoned to 1st Additional District & Sessions Judge, Kolar, he
collected the blood samples of the victim and the appellant and
preserved in E.D.T.A tube, and also collected sputum, and oral
mucosa swab and handed over to Investigating Officer. He has
identified the document as Ex.P3. In the cross-examination, he
admitted that if the blood samples are not properly preserved,
chances of leading to false report cannot be ruled out. Hence,
the evidence of this witness is required to be rejected.
20. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW19-Dr.Seema. On 01.12.2017, the Kolar Rural police have
produced the victim before her, she tested the victim and
stated that the victim is 23 weeks pregnant. Her report is
- 19 -
marked as Ex.P16. On 12.03.2018 she got admitted again. On
22.03.2018, she underwent cesarean and gave a birth to boy
child. In the cross-examination, she admitted that the victim
has not stated the name of the appellant and nothing regarding
the appellant causing pregnancy has been mentioned in the
discharge summary-Ex.P17. The learned Sessions Judge
committed grave error in relying upon the evidence of PW20-
Shivaraju, who received the complaint on 30.11.2017 at 6.00
P.M., and registered a case in Crime No.510/2017 and
forwarded to the jurisdictional Magistrate. The F.I.R is marked
as Ex.P18. Thereafter, he handed over the further investigation
to PW22- Putta Obalareddy. K.O. On 02.12.2017, the
Investigating Officer has deputed him to arrest the accused.
Accordingly, he arrested the appellant on the same day and
produced him before the Investigating Officer and gave the
report as per Ex.P18. In the cross-examination, he admits that
his staff has identified the L.T.M of the complainant. But he did
not remember who wrote the complaint. Further, he admits
that at the time of lodging the complaint, PW1 alone came to
the Police Station. But the victim and PW1 have stated that
both of them went to the Police Station and lodged the
- 20 -
complaint. The evidence of this witness is inconsistent and
uncorroborated with the evidence of other witness.
21. It is further submitted that the learned sessions
judge committed grave error in relying upon the evidence of
PW21-L.Purushotham, who is the Assistant Scientific officer. He
has deposed that, on 04.04.2018, the Kolar Rural Police has
sent 3 sealed covers in Crime No.510/2017 to the DNA
department, he has examined those articles and given his
report as per Ex.P20 and stated that appellant is the biological
father of the child. In the cross-examination, he admitted that
there is no date on the covers to show that on what date the
blood samples were collected and from whom. He has not given
different coding numbers on different articles. He also admits
that he has not stated that those articles were preserved in the
cold storage. At the time of conducting DNA examination,
everything has to be mentioned in the log book and should
obtain the signatures of two witnesses. Nothing is mentioned in
the log book. The evidence of this witness clearly shows that he
has not fulfilled the requirements of the tests as per law.
Hence, the prosecution has not established as to who is the
biological father of the child.
- 21 -
22. It is further submitted that the learned sessions
judge committed grave error in relying upon the evidence of
PW22-Putta Obala Reddy, who is the Police Inspector. He
collected the case file from PW21 on 01.12.2017, and he has
forwarded the victim to SNR Hospital along with his staff and
directed his staff to arrest and produce the appellant before
him. Accordingly, on 02.12.2017, the appellant was produced
before him. He also recorded the statement of the victim. On
03.12.2017, visited the spot and conducted the spot mahazar.
On 05.12.2017, he produced the victim before the jurisdictional
Magistrate to record her statement as required under Section
164 of Cr.P.C. After collecting the documents, he has handed
over the case file to PW23 Jagadish. In the cross-examination,
he admitted that he has not collected the birth certificate of the
victim. Further, the route in which the victim walks from her
village to bus is a busy road and also there are agricultural
lands adjoining to the said road. The evidence of this witness
clearly goes shows that the version given by the victim is quite
artificial and unbelievable.
23. It is further submitted that the learned Sessions
Judge committed grave error in relying upon the evidence of
PW23-Jagadish.S.R, who is Police Inspector. He has deposed
- 22 -
that, on 15.12.2017 he collected the case file from PW22. On
16.12.2017, he collected the birth certificate of the victim
which is marked as Ex.P6. On 21.12.2017, he collected the spot
sketch from the PWD Engineer which is marked as Ex.P9. On
28.12.2017, he has sought the appellant from judicial custody.
He has collected the blood samples and DNA report from the
victim and the appellant from SNR Hospital. After collecting all
the documents, he has filed the charge sheet. In the cross-
examination, he admitted that he has not collected the birth
certificate of the victim and also he admits that in the spot
sketch at Ex.P9, the direction given is not correct. The
evidence of this witness clearly shows that the prosecution has
not established the age of the victim. Until and unless the
prosecution establishes the victim is a minor, conviction cannot
be based on the provisions of POCSO Act and unless the birth
certificate is produced, there cannot be probative value to the
evidence of the victim and the other witnesses. Hence, the
prosecution miserably failed to establish the prima-facie case
against the appellant to attract any of the ingredients of the
charges leveled against the appellant. He would further submit
that the statement of the victim was not recorded by a women
police, but was recorded by the Investigating Officer-Putta
- 23 -
Obala Reddy, which is clearly in violation of the Section 24(1)
of the POCSO Act. Viewed from any angle, the Judgment of
conviction and order on sentence is not sustainable in law and
it is required to be interfered with by this Hon'ble court. On all
these grounds, learned Counsel for the appellant prays to allow
the appeal.
24. In order to substantiate his contentions, he has
relied upon the following decisions:
(1) State of Karnataka Vs. Sri. Nagesh, in
Criminal Appeal No.100570/2022 (A),
decided on 10.07.2025 of the Dharwad
Bench of this Court,
(2) Mohanlal Gangaram Gehani Vs. State of
Maharastra - AIR 1982 SC 839 and
(3) Alamelu & Another Vs. State, Represented by
Inspector of Police - AIR 2011 SC 715.
25. Per contra, learned High Court Government Pleader-
Sri. B.Lakshman, opposed 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.
- 24 -
26. Having heard the arguments on both sides and on
perusal of the materials placed before this Court, the following
points would arise for my consideration:
i. Whether the learned Sessions Judge is
justified in convicting the appellant/accused
for the offence punishable under Section 6 of
the POCSO Act?
ii. What order?
27. My findings to the above points are as under:-
Point No.1 : In the affirmative.
Point No.2 : As per final order
Regarding Point No.1:
28. The Circle Inspector, Kolar Rural Police, Kolar, filed
the charge sheet against the accused for the offence punishable
under Sections 376, 506 of IPC and Section 6 of POCSO Act,
2012.
29. The genesis of the case arise from Exhibit P1-
complaint filed by the PW1-Lakshmamma, the grandmother of
the victim, in which it is stated as under:
"ರವ ಂದ,
®PÀëöäªÀÄä PÉÆÃA ¯ÉÃmï gÁªÀÄPÀȵÀÚ¥Àà, 70 ªÀµÀð, ¨sÉÆë d£ÁAUÀ,
PÀÆ° PÉ®¸À, ªÁ¸À ZÀÄAZÀzÉãÀºÀ½î UÁæªÀÄ, PÉÆïÁgÀ vÁ®ÆèPÀÄ.
ಾನ ೇ:
- 25 -
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ಮಕ *ದು, 01 ೇ ೆಂಕಟ+ಾ,- ಮತು! 02 ೇ ಾಗ ಾ0
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DgÁ©üPÉÆvÀÛ£ÀÆgÀÄ "ಾ6ಮದ Gಾ4ೆ"ೆ ನNೆದು ೊಂಡು 3ೋ
ಬರುH!ದಳ2. ಾನು FUÉÎ ಸು ಾರು ಒಂದು Hಂಗಳ Oಂ8ೆ
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3ೋ ಾನು ಅ Pೕ ಇzÉÝ. ನಂತರ ಈ"ೆR ಸು ಾರು 3 Jನಗಳ Oಂ8ೆ
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ನನ"ೆ Yಾರ H*Tದರು.
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¸ÀéAvÀ HgÁzÀ ZÀÄAZÀzÉãÀºÀ½î UÁæªÀÄPÉÌ ಬಂದು ನನ; CCKಗ ಾದ
ಸ ತ ರವರನು; Yಾರ ಾ 8ಾಗ ಸ ತ ರವರು ನನ"ೆ ಸು ಾರು 4-
5 ¢£ÀUÀ½AzÀ ºÉÆmÉÆÖãÉÆìÄwÛzÉ JAzÀÄ H*Tದಳ2. ಆಗ ಾನು
ಸ ತ ರವ "ೆ Mನ"ೆ Hಂಗಳ Hಂಗಳ ಸ <ಾ ಮುಟು% ಆ"ಾ! ಇJೕಯ
ಎಂದು ೇ*ದ ೆ ಸ ತ ರವರು ಾನು 5 Hಂಗ*ಂದ ಮುಟು% ಆ ಲ
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- 26 -
ಮುಂ8ೆ ಬಂJರುವ 3ಾ"ೆ H*\ತು. ಆಗ ನನ"ೆ ಅನು ಾನ ಬಂದು
ಸ ಸ ತ ರವರನು; ಕೂ T ೊಂಡು Yಾ T8ಾಗ ಾನು ಈ"ೆR
ಸು ಾರು 7 Hಂಗ*ಂದ Gಾ4ೆ\ಂದ ಮ ೆ"ೆ ನNೆದು ೊಂಡು ಬರು ಾಗ
8ಾ ಮದ ದ ನಮK "ಾ6ಮದ ನಮK ಸಂಬಂ]<ಾದ
ಾ ಾಯಣ+ಾ,- @ S ೊ;ೕಡು @ Sಕು _V ನಂಜುಂಡಪ`
ಎಂಬುವರು ಆ"ಾಗ ನನ;ನು; ಬಲವಂತ ಾ ೋಪaಗಳ ಒಳ"ೆ
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H*Tದರು.
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ರವರ ರುದk ನಮK ಮ ೆಯ ರುವ ನನ; CCKಗಳನು; Yಾರlೆ
ಾ ಸೂಕ! ಾನೂನು ೕ ಾ ಕ6ಮ ಜರು ಸಲು ೋರು ೆ!ೕ ೆ."
30. On the basis of this complaint, on 30.11.2017, the
Sub-Inspector, Rural Police Station, Kolar registered the case in
Crime No.510/2017 against the accused for the offence
punishable under Section 376, 506 Indian Penal Code and
Section 6 of Protection of Children from Sexual Offences Act,
2012. He submitted the FIR to the Court on the same day, at
09.50 p.m. as per Exhibit P18. Thereafter, the police have
- 27 -
visited the spot and conducted spot mahazar-Exhibit P2 on
03.12.2017, and produced the accused before the Court for
recording statement under Section 164 of Cr.P.C. Accordingly,
statement was recorded as per Exhibit P5. The Investigating
Officer has also obtained the DNA report as per Ex.P20. The
DNA report reveals that the accused's blood sample sent in
Item No.1 is included from the biological father and the victim
D/o Nagaraj, sample blood sent in Item No.2 included from the
biological mother of boy child, sample blood sent in Item No.3.
31. PW1-Lakshmamma has deposed in her evidence as to
the contents of complaint.
32. PW2-victim has deposed in her evidence that PW1 is
her grandmother, CW3 is her father, and CW4 is her mother.
She knows the accused. Her date of birth is 03.02.2004. In the
year 2017, she was studying in 8th standard in Arabikotthanuru
High School. She was going to the school by walk till
Chunchadenahalli gate and from there she would take a bus.
About 1 year 9 months ago, while returning home from school,
she alighted from bus at the gate. At that time, accused came
and dragged her into a nearby eucalyptus grove and asked her
to remove her clothes for which she refused. The accused
- 28 -
threatened her by saying that he will kill her and her parents
and removed her clothes and committed rape on her. He also
threatened to harm her and her parents if she reveals the
incident to anybody. After 2 to 3 months, accused committed
rape on her again, in the same manner and at the same place.
Being unable to tolerate the stomach pain, she informed her
mother. Her grandmother-CW1 was called from Hosuru, to
whom she revealed about the incident. On 30.11.2017, she was
taken to SNR Hospital, Kolar, and doctor examined her. Police
enquired her. She told them about the incident. Police took her
to the place of incident and conducted mahazar as per Exhibit
P2 at the place shown by her. Thereafter, she was shifted to
observation home at KGF. After 3 months, she was taken to
SNR Hospital, Kolar, where she gave birth to boy child. In the
presence of Court, her sample blood was taken for investigation
by executing Identification Form - Exhibit P3. PW2 has
identified photograph of the child in the Identification Form -
Exhibit P4. She gave her statement before the Court as per
Ex.P5.
33. PW3-Nagaraja is the father of the victim. He has
deposed in his evidence that in the year 2017 victim was
studying in 8th standard. Victim complained stomach pain
- 29 -
hence, he informed the same to his mother. Thereafter, victim
was taken to the hospital, where the doctor examined and told
that she was pregnant. Victim girl told that accused committed
rape on her in the eucalyptus grove, while she was returning to
home from school.
34. PW4-Venkataswamy is the uncle of victim girl, has
deposed supporting the prosecution case stating that, victim
girl told him that, accused committed rape on her and in the
eucalyptus grove, while returning to home from the school and
threatened her not to reveal the same to anybody. Victim was
admitted to the hospital where doctor revealed that Victim was
pregnant.
35. PW5-Muniraju, PW6-Anjinappa and PW8-Venu are the
panchas to the spot mahazar Exhibit P2. They have stated that
on 03.12.2017, police have obtained their signatures near
Chunchadenahalli gate. But all these witnesses have not
supported the case of the prosecution and treated as hostile
witnesses.
36. PW7-Pradeep Kumar C.N. Headmaster of
Arabikotthanuru Government High School has deposed that, at
the request of police has issued certificate regarding the date of
- 30 -
birth of the victim as per Exhibit P6 and as per the school
records date of birth of the victim is 03.02.2004.
37. PW9-Dr.Bayyappa Reddy, in his evidence stated that
on 02.12.2017 he has examined and subjected the victim to
scanning test and issued report as per Exhibits P7 and P8,
stating that victim was aged about 13 to 15 years and she was
pregnant for 23 weeks.
38. PW10- Manjunatha is the Junior Engineer, PWD Kolar,
has deposed as to the rough sketch prepared by him as per
Exhibit P9 on the spot.
39. PW11- Rahul, Village Accountant has deposed in his
evidence as to the issuance of RTC extract pertaining to land
bearings Sy.No. 64/1 of Chunchadenahalli Village belongs to A.
Krishnappa as per Exhibit P11.
40. PW12-Dr. D.K. Ramesh, who has medically examined
the accused and issued his report as per Exhibits P12 and 13
stating that there was no impediment for the accused to
perform sexual intercourse.
41. PW13 - Narayanaswamy is the Head constable, who
has escorted the accused to the hospital and Court.
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42. PW14-Aleefa is the WPC who escorted the victim to
the hospital for medical examination and to the Court for
recording statement under Section 164 of Code of Criminal
Procedure.
43. PW15-Dr. Mamata has deposed in her evidence that
she has collected the sample blood from the accused on
28.12.2017. At the time of drawing her blood identification
Form Exhibit P14 was executed in her presence.
44. PW16-C.S.Nagraj, Police Constable has deposed in his
evidence that he has escorted the accused to the hospital for
medical examination.
45. PW17-Mamata, WPC-357 in her evidence stated that
she has escorted the victim to the hospital for medical
examination and transported the materials collected by the
doctor from the victim to Investigating Officer.
46. PW18-Dr.Santhosh Prabha, the doctor has deposed
that on 03.04.2018 he has collected the sample blood from
accused, victim and her child in the presence of Court. He has
executed the identification forms of the victim, her child and
the accused as per Exhibits P3, P4 and P5 and handed over the
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sample blood to Investigating Officer. He has also collected oral
Mucus Swab from the said persons and handed over the same
to the Investigating Officer.
47. PW19 Dr. Seema, is the doctor has deposed in her
evidence that on 01.12.2017 victim was brought before her by
police. On examination, it was found that victim was pregnant
for 23 weeks. On 12.03.2018, victim was admitted to the
hospital for delivery. The victim gave birth to a boy child. She
has issued report as per Exhibit P16 and discharge summary as
per Exhibit P17.
48. PW20-Shivaraju.S, Sub-inspector of Police, PW22-
Putta Obalareddy.K.O, PW23-Jagadeesha.S.R, have deposed as
to their respective investigation.
49. PW21-L.Purushotham, is the Assistant Director, FSL
Bangalore has stated that on 04.04.2018 he received three
sealed articles from Ananda, PC-159 of Kolar Rural Police
Station for DNA Test. Accordingly, he has registered the same
as DNA No.146/2018. He has followed proper procedure and
opened the same and found that article No.1 was containing
sample blood of accused- Narayanaswamy collected by the
doctor on 03.04.2018 in the presence of CJM, Kolar. Article
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No.-2 contained sample blood of victim collected by the doctor
on 03.04.2018 in the presence of CJM, Kolar. Article No.3 was
containing sample blood of boy child of the victim collected by
the doctor on 03.04.2018 in the presence of CJM, Kolar. He has
analysed the DNA profiles and found that genes in the DNA of
blood sample of the male child were tallying with the genes in
the DNA of blood sample of the accused and victim. As per his
opinion, accused is the biological father of the child born to the
victim. He has issued his report as per Exhibit P20. He has
identified his signature on identification form Exhibits P3, P4
and P15.
50. With regard to the age of the victim is concerned, the
victim has clearly stated that her age was 13 years, at the time
of alleged commission of offence, same was deposed by the
victim, while recording statement under Section 164 of Cr.P.C.
Whereas in examination-in-chief recorded on 23.02.2018, she
has stated that her age is 15 years. The prosecution has
produced the certificate as per Exhibit P7 and also adduced the
evidence of PW9-Dr.Bayyappa Reddy who has deposed that the
age of the victim was 13 to 15 years and she was pregnant for
23 weeks at the time of examination. According to law, during
the course of evidence of victim, the counsel for the accused
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has not disputed the age of the victim. Even during the course
of examination of PW9-Dr. Bayyappa Reddy, Radiologist, has
not disputed the certificate issued by this doctor as per Exhibits
P7 and P8. Apart from this, the prosecution has produced the
school certificate as per Exhibit P6, which reveals that the date
of birth of the victim was 03.02.2004. The Headmaster of the
Government High School, Arabikotthanuru, examined as PW7
who has deposed in his evidence as to the contents of Exhibit
P6. The trial Court has observed the same in the judgment and
opined that the document issued by the school authorities can
also be relied upon in order to ascertain the date of birth of the
victim. Further it is observed that, appreciating the school
certificate in comparison with the age estimation certificate
based on clinical examination test Exhibit P7, would clearly
indicate that the victim was minor as on the date of incident. It
is also observed that, it is not the defence of the accused that
victim was not minor on the date of incident or the document
produced before the Court. Either, the date of birth of victim is
fabricated or the real date of birth of victim is different from
Exhibit P6 and P7. Accordingly, the trial Court has held that the
victim was minor as on the date of incident, relying on the
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judgment of Hon'ble Apex Court, in the case of Jarnail Singh
v.State of Haryana reported in (2013) 7 SCC 263.
51. On re-appreciation of the evidence on record, I do not
find any error in holding that the victim was a child as defined
under Section 2(d) of Protection of Children from Sexual
Offences Act. Accordingly, I hold that there is no force in the
argument submitted on behalf of the accused counsel in this
regard.
52. With regard to the DNA report is concerned, the
learned counsel for the appellant would vehemently submit that
the sample blood was not taken as per the guidelines issued by
the concerned authority and while taking sample blood the
concerned medical officer has not followed the proper due
procedure or had preserved same in the manner prescribed
under rules. In this regard, it is also relied on the decision of
the Division Bench of this Court in the case of the State of
Karnataka v. Nagesh in Criminal Appeal No.100570/2022
decided on 10.07.2025. In this regard, on perusal of para
No.42 of the judgment, it is seen that the trial Court has
observed that, this Court is not relying only on the DNA report.
But this Court do not find any reason to disbelieve the
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corroborative evidence of victim girl, which is supported by the
evidence of other witnesses and Exhibit P20-DNA report. Since
the trial Court has not convicted the accused solely on the DNA
report, it is not necessary to discuss much about the procedure
in taking blood samples, preservation and also its DNA
examination. Therefore, the ruling cited by the learned counsel
for the accused will not enure to his benefit.
53. A careful examination of the entire evidence on
record, it is crystal clear that except denial, the accused has
not made out any specific defence. Admittedly, accused is
distant relative of victim. In the cross-examination of PW1, it
was suggested that there was ill-will between the family of the
accused and family of the complainant, which is denied.
Accordingly, the accused has not placed any materials
regarding the enmity/ill-will between the accused and the
family of the victim. The evidence of victim is trustworthy and
believable. There is a statutory presumption under Section 29
of the Protection of Children from Sexual Offences Act that
where a person is prosecuted for committing, abetting or
attempting to commit any offence under Section 3, 5, 7 and
Section 9 of the Act, the Court shall presume that such person
has committed or abetted or attempted to commit the offence,
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as the case may be, unless the contrary is proved. Section 30
of the POCSO Act, 2012, contemplates that in any prosecution,
for any offence under this Act, which requires a culpable mental
state on the part of the accused, the Court shall presume the
existence of such mental state, but shall be a defence for the
accused to prove the fact that he had no such mental state with
respect to the act charged as an offence in that prosecution. In
the explanation to Section 30 of the Act, the culpable mental
states defined, which includes intention, motive, knowledge of
a fact and the belief in, or reason to believe a fact.
54. In the case on hand, the evidence placed by the
prosecution proves that the accused commits aggravated
penetrative sexual assault, which is punishable under Section 6
of Protection of Children from Sexual Offences Act, 2012.
Accordingly, the prosecution has proved its case beyond all
reasonable doubt and trial Court has rightly convicted the
accused for the offence under Section 376 of Indian Penal Code
and Section 6 of POCSO Act, 2012 and rightly passed the
sentence to undergo rigorous imprisonment for a period of 10
years with fine of Rs.10,000/- for the offence punishable under
Section 6 of Protection of Children from Sexual Offences Act,
2012. I do not find any error/illegality in the impugned
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judgment of conviction and order on sentence passed by the
trial Court. Hence, I answer point No.1 in Affirmative.
Regarding Point No.2:
55. For the aforesaid reasons and discussions, I proceed
to pass the following:
ORDER
i) Appeal is dismissed.
ii) The Judgment of conviction and order on
Sentence passed by the Addl. District and
Session Judge, FTSC-I (POCSO), Kolar dated
29.10.2021 is confirmed.
iii) Registry is directed to send the copy of this
Judgement along with the Trial Court records to
the concerned Court.
Sd/-
(G BASAVARAJA)
JUDGE
DL/KBM
CT:JL
