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Karnataka High Court
Sri Chandru vs The State By on 26 December, 2025
-1-
CRL.A No.1638 of 2021
C/w CRL.A No.1645 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.1638 OF 2021
c/w
CRIMINAL APPEAL NO.1645 OF 2021
IN CRL. APPEAL NO.1638/2021
BETWEEN:
SRI CHANDRU
S/O LATE NAGASHETTY
AGED ABOUT 24 YEARS
R/O KELAGADE UPPAR STREET,
CHAMARAJANAGAR TOWN-571313.
...APPELLANT
(BY SRI. P.P. HEGDE, SR. COUNSEL A/W
SRI. PRASANNA KUMAR B., ADV.)
AND:
THE STATE BY
CHAMARAJANAGAR TOWN POLICE,
REPTD. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-01.
...RESPONDENT
(BY SRI. B. LAKSHMAN, HCGP)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 14.09.2021 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA AND
SPL. JUDGE FOR POCSO CASES IN SPL.C.NO.164/2018 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
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CRL.A No.1638 of 2021
C/w CRL.A No.1645 of 2021
OFFENCE P/U/S 341,363,366,368,376(3) OF IPC AND SEC.4, 8,
12 OF POCSO ACT.
IN CRL.APPEAL NO.1645/2021
BETWEEN:
SMT MAHADEVAMMA
W/O PUTTASUBBASHETTY,
AGED ABOUT 24 YEARS,
R/O HALE BEEDI, KODI MOULAY VILLAGE,
CHAMARAJANAGAR TALUK-571313.
...APPELLANT
(BY SRI. P.P. HEGDE, SR. COUNSEL A/W
SRI. PRASANNA KUMAR B., ADV.)
AND:
1. THE STATE BY
CHAMARAJANAGAR TOWN POLICE,
REPTD. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-01.
2. SMT. JAYALAXMI,
W/O BANGARASWAMY,
44 YEARS,
MEGALA UPPARA STREET,
CHAMARAJANAGAR-571313
...RESPONDENTS
(BY SRI. B. LAKSHMAN, HCGP FOR R1, R2 - SERVED.)
[CAUSE TITLE AMENDED VIDE COURT ORDER DATED: 19.07.2024.]
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 14.09.2021 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 114 OF
IPC AND SECTION 17 OF POCSO ACT.
-3-
CRL.A No.1638 of 2021
C/w CRL.A No.1645 of 2021
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.12.2025 AND COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
The appellants have preferred these appeals against
the judgment of conviction and order on sentence dated 14th
September, 2021 passed in Spl.C.No.164 of 2018 by the
Principal District and Sessions Judge & Special Judge for POCSO
Cases, Chamarajanagara (for short "the trial Court").
2. For the sake of convenience, the parties herein are
referred to as per their status before the trial Court.
3. Brief facts leading to this appeal are that,
Chamarajanagara Town Police submitted the charge-sheet
against the accused 1 and 2 for the offences punishable under
Sections 363, 366, 368, 114, 341, 376 of Indian Penal Code
and Sections 4, 8, 12 and 17 of Protection of Children from
Sexual Offences Act, 2012 (for short "POCSO Act").
4. It is alleged by the prosecution that, PWs2 and 3
are the parents of the victim. The date of birth of the victim
girl is 14th April, 2003. The victim girl was studying in JSS
College at Chamarajanagara and used to go to college by bus.
It is further alleged that the accused was teasing and talking
with victim girl while she was going to the college and was also
saying that he loves her, likes her and wants to marry her. On
11th July, 2018 when the victim girl was going to school, at that
time, accused took her in a bus, assuring to take her to
Mysuru. Instead of going to Mysuru, he took her to Kodi
Moulay Village to the house of accused No.2. When the victim
girl asked accused No.1 as to why he brought her to Kodi
Moulay Village, he told that a car will come there, thereafter
they will go to Male Mahadeshwara Temple, get married and
later go to Mysuru. They stayed in the house of accused No.2
for about 7 days. Accused No.1 had sexual intercourse with
victim girl in the house of accused No.2. The mother of the
victim girl has lodged missing complaint. Upon registration of
the missing complaint, Police visited the house of victim girl
and drawn spot mahazar in the said place. Thereafter, during
the course of investigation, police secured the presence of the
victim girl and accused and brought them to Chamarajanagara
Police Station on 18th July, 2018 and they called the parents of
the victim girl and in their presence, the women police recorded
the statement of victim. In her statement, she has stated that
accused No.1 forcibly took her to Kodi Moulay village and
confined her in the house of the accused No.2 and there, the
accused No.1 had sexually assaulted the victim. On coming to
know that accused No.1 had sexual intercourse with the victim
girl, they have registered the case against the accused No.1 for
the offence punishable under Section 376 Indian Penal Code
and under the provisions of POCSO Act. During the course of
recording of the statement of the victim girl, police have also
taken photographs. Thereafter, victim girl was sent to medical
examination in the presence of her mother. Thereafter, police
took the victim girl to the Court for recording the statement
under section 164 of Code of Criminal Procedure.
5. The police took the victim girl to Kodi Moulay village
to the house of accused No.2 where the accused No.1 had
sexual intercourse with the victim girl, mahazar was conducted
in the presence of the panchas and the mother of the victim
girl. During the process of drawing mahazar, they have taken
the photographs. The victim girl has handed over the clothes
which were worn by her while she was in the house of the
accused No.2. Thereafter, the police have also recovered the
school bag along with which the victim girl was kidnapped by
the accused No.1 and sent the accused No.1 for medical
examination. During the process of investigation the
Investigating officer has also recorded the statement of the
witnesses and secured the property extract of the house of
accused No.2 and also collected admission register extract of
the victim girl from the school authorities to establish the date
of birth of the victim girl. On completion of the investigation,
the Investigating officer has filed charge-sheet against the
accused for the aforesaid offences.
6. After filing the charge-sheet, case was registered.
Accused No.1 is in judicial custody since the date of his arrest.
Accused No.2 was released on bail.
7. Upon hearing on charges, the trial Court has framed
the charges for the commission of alleged offences. Same were
read over and explained to the accused. Having understood
the same, accused pleaded not guilty and claimed to be tried.
8. To prove the guilt of the accused, in all, 26
witnesses were examined as PW1 to PW26. 32 documents
were marked as Exhibits P1 to P32. Nine material objects were
marked as MOs.1 to 9. On closure of prosecution side
evidence, statement under Section 313 of Code of Criminal
Procedure was recorded. The accused have totally denied all
the evidence of prosecution witnesses. However, they did not
choose to lead any defence evidence on their behalf.
9. Having heard the arguments on both sides, the trial
Court has convicted accused No.1 for the offences under
Sections 341, 363, 366, 368, 376(3) of Indian Penal Code and
Sections 4, 8, 12 of the Protection of Children from Sexual
Offences Act. The trial Court has passed the sentence to
accused No.1 to undergo simple imprisonment for a period of
one month and to pay fine of Rs.5,000/- for the offence
punishable under Section 341 Indian Penal Code; to undergo
simple imprisonment for a period of 5 years and to pay fine of
Rs.10,000/- for the offence punishable under Section 363 of
Indian Penal Code; to undergo simple imprisonment for a
period of 5 years and to pay fine of Rs.10,000/- for the offence
punishable under Section 366 of Indian Penal Code; to undergo
rigorous imprisonment for a period of 20 years and to pay fine
of Rs.5,00,000/- for the offence punishable under Section
376(3) Indian Penal Code; to undergo simple imprisonment for
a period of 3 years and to pay fine of Rs.50,000/- for the
offence punishable under Section 8 of POCSO Act; and further
sentenced to undergo simple imprisonment for a period of 3
years and to pay a fine of Rs.50,000/- for the offence
punishable under Section 12 of POCSO Act.
10. Accused No.2 is convicted for the offence
punishable under Section 114 Indian Penal Code and Section 17
of Protection of Children from Sexual Offences Act. Accused
No.2 is sentenced to undergo simple imprisonment for a period
of 5 years and to pay fine of Rs.2,00,000/- for the offence
punishable under Section 17 of POCSO Act.
11. After pronouncing the judgment, accused No.1 was
taken to custody and is in custody till date. Being aggrieved by
the Judgment of conviction and order on sentence, the
appellants have preferred Criminal Appeals No.1638 of 2021
and 1645 of 2021.
12. The learned counsel appearing for the appellants
would submit that the prosecution has failed to prove that as
on the date of commission of offence, the victim was a child as
defined under Section 2(d) of POCSO Act. The prosecution has
produced the document Exhibit P16-Birth Certificate which is
issued by the Registrar of Births and Deaths, Municipal Council,
Chamarajanagara, which reveals that the date of birth of the
victim as 14th April, 2003. But the author of the document is
not examined.
13. PW10-Gangaprasad, teacher of the victim girl has
produced school admission register extract-Exhibits P17 to
P19, showing the date of birth of the victim girl as 14th April,
2003 and he has no personal knowledge in the connected case.
In the aadhar card, the date of birth of the victim is mentioned
as 13th April, 2003.
14. With regard to the alleged incident is concerned,
prosecution has miserably failed to prove the guilt of the
accused for the reason that Exhibit P9-missing complaint was
lodged by PW2-Jayalakshmi on 12th July, 2018 at 06.45 p.m.
realising that the victim has not returned from the school since
11th July 2018. There is no accusation or even reference
against these accused in the complaint. Based on the
complaint, FIR came to be registered in Crime No.316 of 2018
as per Exhibit P22. On 13th July, 2018, spot mahazar was
conducted as per Exhibit P10 near the house of PW2. There
are no accusations against the accused. On 07th February,
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2018, spot mahazar was prepared as per Exhibit P5 in the
house of accused No.2 in which also there is no accusation
against the accused. The victim girl was traced on 17th July,
2018 and was produced before the doctor, along with the
police.
15. In Exhibit P3, PW11-Dr.Sruthi has stated as "elope
with her boyfriend named Chandrashekara alias Chandru Kodi
Moulay Village and stayed in Chandru's relatives house for
about six days. During their stay, they had sexual intercourse
on 11th and 12th July, 2018 and as she had her periods on 13th
July, 2018 they did not have sexual intercourse since then.
After sexual intercourse on 12th July, 2018 she took bath and
changed her clothes. There were no signs of external injuries."
Dr.Sruti was of the opinion that there is no evidence of sexual
intercourse. In Exhibit P4 there is no recital of penetrative
sexual intercourse. Hence, the commission of penetrative
sexual assault is doubtful and unbelievable. Further, as
regards statement of victim girl under Section 164 Code of
Criminal Procedure Code (Exhibit P4) is concerned, the learned
Counsel would submit that the victim does not speak about the
commission of any sexual assault. The statement of the victim
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given to the police after registration of FIR and during the
investigation as per Exhibit P1, is contradictory to each other.
In the statement Exhibit P4, the victim has stated that accused
is her "maavana maga and they were in love with each other".
She had voluntarily gone to his sister-in-law's house in Kodi
Moulay Village and stayed together in the said house. There is
nothing wrong in accompanying the accused by the victim girl.
This does not amount to an offence. She has neither been
lured nor threatened by anyone to go to her relative's house
and stay there.
16. Evidence of PW1-victim is contrary to Exhibit P4.
Hence cannot be believable. In page 5 of the deposition, victim
has clearly stated "MAzÀ£Éà DgÉÆæAiÀÄÄ £À£ÀUÉ K£ÀÆ ªÀiÁqÀ°®è JAzÀÄ
ºÉýgÀĪÀÅzÀÄ ¤d." It has come in evidence that due to enmity,
the present litigation is made against the accused, at the
instance of her parents. Except PW1 to PW3 all other material
witnesses PW4 to PW8 have turned hostile. There is no cogent
and convincing evidence before the Court.
17. Dr. Mahesh has admitted in the cross-examination
that he examined the shoulder joint and elbow joint of the
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accused. He found that the accused was between 17 and 18
years and might be below 18 years. He has admitted that he
has not produced any medical records. No public document or
the birth certificate are produced by the prosecution.
Suppression of these material facts would result in drawing
adverse inference against the prosecution and on all these
grounds sought for allowing this appeal.
18. Smt. Archana.K.M, Amicus Curiae appearing for
respondent No.2 and Sri B. Lakshman, learned High Court
Government Pleader would submit that the trial Court has
properly appreciated the evidence on record in its proper
perspective and there are no grounds to interfere with the
impugned judgment of conviction and order on sentence
passed by the trial Court and hence sought for dismissal of
appeals.
19. Having heard the arguments advanced on behalf of
the parties and on perusal of material placed before this Court,
the following points would arise for my consideration:
1. Whether the trial Court is justified in coming
to the conclusion that the Prosecution has
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proved the case beyond all reasonable doubt
that as on the date of incident, the victim
was a child as defined under Section 2(d) of
POCSO Act?
2. Whether the trial Court is justified in
convicting the accused No.1 for commission
of offence under Sections 341, 363, 366,
368, 376(3) of Indian Penal Code and
Sections 4, 8 and 12 of POCSO Act?
3. What Order?
20. My answer to the above points are as under:
Point No.1: in the negative;
Point No.2: in the negative; and
Point No.3: as per final order
Regarding Points 1:
21. I have examined the materials place before me.
The investigating officer submitted charge-sheet against
accused 1 and 2 for offence punishable Sections 341, 363, 366,
368, 376(3) of Indian Penal Code and under Sections 4, 8, 12
and 17 of POCSO Act. It is alleged by the prosecution that the
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victim girl is studying in JSS College, Chamarajnagar. She
used to go to college by bus. It is further alleged that accused
was teasing and talking to victim girl when she was going to
school and the accused used to tell the victim that he loves her
and would like to marry her. Further, it is the case of the
prosecution that on 11th July 2018, when the victim was going
to school, at that time, accused No.1 assured her to take to
Mysore, instead he took her to Kodi Moulay Village to the house
of accused No.2. When the victim asked accused No.1 why he
brought her there, he told that a car will come there, thereafter
they will go to Male Mahadeshwara Hills get married and
thereafter go to Mysore. At Kodi Moulay, they stayed in the
house of the accused No.2 for about seven days. During that
time, the accused No.1 had sexual intercourse with the victim
girl in the house of accused No.2. In this regard, mother of the
victim has lodged missing complaint. Upon registration of the
complaint, Police visited the house of victim girl and conducted
spot mahazar. Thereafter, during the process of investigation,
Police secured the presence of both victim and accused and
brought them to Chamarajanagara Police Station on 18th July
2018. They called the parents of the victim girl and in the
presence of victim, Women Police recorded the statement of
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victim and registered case against accused No.1 for the offence
punishable under section 376 of IPC and under the provisions
of POCSO Act. After investigation, investigating officer
submitted sheet against the accused for commission of alleged
offence. Accused 1 and 2 were arrested. Accused No.2 was
released on bail as per order of the court dated 3rd August
2018. Accused No.1 was arrested on 17th July 2018 and was
released as per order dated 14th June 2019, and after
pronouncement of the impugned judgment of conviction,
accused were taken into custody and they are in custody since
the date of arrest.
22. Learned Counsel appearing for the appellants
submitted that the prosecution has not placed any acceptable
legal evidence before the court to prove that the victim was
child as defined under section 2(d) of POCSO Act. The
prosecution has produced Exhibits P16 to 18, viz. birth
certificate, school certificate and admission register extract
respectively, which reveal the date of birth of the victim as 14th
April 2003. First, this court has to analyse the genuineness of
the birth certificate-Exhibit P 16. This birth certificate is issued
by the Registrar of Births and Deaths, Municipal Council,
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Chamarajanagar under section 12/17 of Registration of Birth
and Deaths Act 1969 and rule 8/13 of Karnataka Registration of
Birth and Death Rules, 1999. As per this birth certificate, the
date of birth of victim is 14th April 2003. The date of
registration is 06th September, 2018. The date of issuance of
the birth certificate is 06th September, 2018. The address of
issuing authority is shown as Health Inspector/Officer,
Chamarajanagar, Chamarajanagar Taluk, Chamarajanagar
District, and in the remarks column, it is shown that "28th April,
2003 B r number 976".
23. The author of the document and the officer who has
issued this certificate, has not been examined by the
prosecution. In view of section 8 of Registration of Births and
Deaths Act, 1969, it shall be the duty of a person specified
under this provision, to give or cause to be given, either orally
or in writing with signature, according to the best of their
knowledge and belief, within such time as may be prescribed,
information to the Registrar of the several particulars including
the Aadhar number of parents and the informant, if available,
in case of birth, required to be entered in the forms prescribed
by the State Government under sub-section (1) of section 16.
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24. It is relevant to mention here as to provisions of
Section 13 of Registration of Births and Deaths Act, 1969. The
same reads as under:
13. Delayed registration of births and
deaths.--(1) Any birth or death of which information is
given to the Registrar after the expiry of the period
specified therefor, but within thirty days of its occurrence,
shall be registered on payment of such late fee as may be
prescribed.
(2) Any birth or death of which delayed information is
given to the Registrar after thirty days but within one
year of its occurrence shall be registered only with the
written permission of the prescribed authority and on
payment of the prescribed fee and the production of an
affidavit made before a notary public or any other officer
authorised in this behalf by the State Government.
(3) Any birth or death which has not been registered
within one year of its occurrence, shall be registered only
on an order made by a magistrate of the first class or a
Presidency Magistrate after verifying the correctness of
the birth or death and on payment of the prescribed fee.
(4) The provisions of this section shall be without
prejudice to any action that may be taken against a
person for failure on his part to register any birth or death
within the time specified therefor and any such birth or
death may be registered during the pendency of any such
action.
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25. A plain reading of the said provision makes it
crystal-clear that the policy embodied under this Section is the
manipulation in the entries relating to dated of births and
deaths. Such entry shall be made immediately after the
occurrence. Precaution should be taken while making delayed
entries. The losses that an entry which has not been made
within one year of its occurrence, cannot be made good without
an order of the Magistrate. Section 13(3) of the said Act is just
a constraint on the Registrar. It is not a provision whereby an
aggrieved party could get an adjudication on his disputed date
of birth. The order binds only the Registrar and not others.
The entry made by the Registrar pursuant to orders of
Magistrate cannot carry higher probative value, and its proof
must necessarily depend upon the facts and circumstances of
each case.
26. In the case on hand, the investigating officer has
not collected any material to show as to who has issued
endorsement to the effect that the date of the victim is not
entered in the birth register before the Magistrate; who has
filed application under Section 13(3) of the Registration of
Births and Deaths Act, 1969 for orders from the Magistrate to
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Register the date of birth of the victim as the same was not
registered within one year; and the Order passed by the
concerned court. In the absence of these materials the
contents of birth certificate-Exhibit P16 cannot be accepted.
27. Additionally, the alleged incident took place on 11th
July, 2018. Entry in Column 10 of Exhibit P16-birth certificate
reveals that the date of birth is registered on 06th September,
2018 and the date of issue of birth certificate is shown as 06th
September, 2018. The contents of Exhibit P16 reveals that
only after filing complaint and registration of the case, this birth
certificate is obtained. Therefore, in the absence of aforesaid
materials, the contents of birth certificate will create suspicion
in getting the birth certificate from the concerned authority.
Hence, the same cannot be accepted.
28. With regard to School Certificate-Exhibit P17 issued
by the Headmaster, JSS Girls High School, Chamarajanagara is
concerned, the date of birth of victim is shown as 14th April,
2003. The certificate is issued on the basis of admission of the
victim to IX Standard on 12th June, 2017. Exhibit P17-
Admission Register extract reveals the date of birth of the
Victim as 14th April, 2003. This document is also issued by the
- 20 -
Headmaster of JSS Girls High School, Chamarajanagara. In
Exhibit P19-Register extract issued by the JSS Girls High
School, Chamarajanagara, the date of birth of victim is shown
as 14th April, 2003. To prove the contents of these documents,
prosecution has examined Sri Gangaprasad-PW10, who has
deposed in his evidence regarding issuance of Exhibits P17 to
P19. In his cross-examination, he has clearly admitted that he
has not entered the date of birth in the original Register. He
cannot say as to on what basis this entry was made by the
concerned authority. But he has deposed that on the basis of
transfer certificate, the entry was made. The said transfer
certificate is not produced by the Prosecution. Since the
prosecution has failed to show on what basis the school
authority has entered the date of birth of the victim in Exhibits
P17 to P19, the same cannot be accepted. The Investigating
Officer has not explained anything as to non-production of the
relevant documents to prove the age of the victim. Further,
the Investigating Officer has also failed to obtain ossification
test certificate to prove the age of the victim as required under
Section 94 of Juvenile Justice (Care and Protection of Children)
Act, 2015 and Section 34 of POCSO Act. For the aforesaid
reasons, I am of the considered opinion that the prosecution
- 21 -
has failed to prove that the victim was child as defined under
Section 2(d) of POCSO Act, as on the date of commission of
alleged offence. Hence, the question of offence under the
penal provisions of POCSO Act does not arise. Accordingly, I
answer point No.1 in the negative.
Regarding Point No.2:
29. With regard to offence punishable under Sections
341, 363, 366, 368, 376(3) and 114 of Indian Penal Code is
concerned, it is the case of the prosecution that on the basis of
the complaint filed by PW2-Smt. Jayalakshmi mother of the
victim, jurisdictional police have registered case in Crime
No.316 of 2018 for the offence punishable under Section 363
Indian Penal Code and submitted First Information Report to
the Court as per Exhibit P22 on 12th July, 2018, against
unknown accused. On the next date, i.e. in 13th July, 2018,
police have conducted mahazar near the house of Jayalakshmi
as per Exhibit P10. The victim was traced on 17th July, 2018
and was produced along with Police before Dr PW 11. Dr Shruti
PW 11 in the history at Exhibit P3 it is stated as under:
"Eloped with her boyfriend named
Chandrashekar Alias Chandru to Kodi Moulay Village
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and in Chandru's relatives House for about six days.
During their stay, they had sexual contact
(intercourse) On 11 July 2018 and 12 July 2018, as
she had her periods on 13 July 2018, they did not
have sexual intercourse since 10. After sexuality force
on 12 July 2018, she took bath and change her
clothes.
There were no signs of external injuries."
30. Dr. Shruti has given her opinion that on local
inspection of the victim, there is no evidence of sexual
intercourse. However, as per exhibit P4, there is no recital as to
penetrative sexual assault. It is relevant to mention here as
the statement of the victim girl recorded under section 164(5)
of CRPC, which is marked as Exhibit P4. In the said statement,
she has stated as under:
"¸ÁQëAiÀÄ ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉƼÀÄîªÀ ¥ÀƪÀðzÀ°è ¸ÁQëUÉ ¸Àé-
EZÉÒ¬ÄAzÀ AiÀiÁªÀÅzÉ ¤©üÃðw E®èzÉ ºÉýPÉAiÀÄ£ÀÄß ¤ÃqÀ§ºÀÄzÀÄ JAzÀÄ
w½¸À¯ÁV ¸ÁQëAiÀÄÄ vÁ£ÀÄ ¸Àé-EZÉÒ¬ÄAzÀ ºÉýPÉ ¤ÃqÀĪÀÅzÁV ªÀÄvÀÄÛ vÀ£Àß
ºÉýPÉ ¤ÃqÀ®Ä ¨ÉÃgÉ AiÀiÁgÀzÉà MvÀÛqÀ CxÀªÁ ¥ÉæÃgÀuÉ EgÀĪÀÅ¢®è JAzÀÄ
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¸ÀéEZÉÒ¬ÄAzÀ AiÀiÁªÀÅzÉà MvÀÛqÀ, ¥ÉæÃgÀuÉ ªÀÄvÀÄÛ D«ÄµÀ¢AzÀ ºÉýPÉ PÉÆqÀ®Ä
§A¢gÀĪÀÅ¢®è JAzÀÄ ºÉý PÀAqÀħA¢gÀÄvÀÛzÉ. ºÁUÁV ¸ÁQëAiÀÄ
ºÉýPÉAiÀÄ£ÀÄß F PɼÀPÀAqÀAvÉ zÁR®Ä ªÀiÁrPÉƼÀî¯Á¬ÄvÀÄ.
- 23 -
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- 24 -
31. The statement of the victim to the police after
registration of FIR and during investigation as per Exhibit P1 is
contradictory to each other and the statement of victim
recorded under section 164(5) of Code of Criminal Procedure,
will falsify the statement of victim recorded by the police on
16th July, 2018 as per Exhibit P1. In the statement at Exhibit
P4, victim has stated that the accused is her "ªÀiÁªÀ£À ªÀÄUÀ"
(mavana maga) and they were in love with each other, and she
had voluntarily gone to the house of her sister-in-law at Kodi
Moulay Village, and stayed there together in the said house.
During the course of cross-examination of PW1, she has clearly
admitted the contents of exhibit P4 that "MAzÀ£Éà DgÉÆæAiÀÄÄ £À£ÀUÉ
K£ÀÆ ªÀiÁqÀ°®è JAzÀÄ ºÉýgÀĪÀÅzÀÄ ¤d." Further, she has clearly
admitted that she cannot see the contents of statement
recorded by the police. She has further admitted that she
knew Murugesh. He is her mother's sister's son and is her
elder brother. He is the resident of Chennipura Moulay. She
also knew Nethra, wife of Murugesh. Nethra is related to
accused No.1. The marriage between Nethra and Murugesh is
a love marriage. In this regard, often there was altercation
between the family members of victim and the accused No.1.
- 25 -
It is submitted by the learned counsel for the complainant that
due to enmity, the present allegation is made against
accused/appellants at the instance of parents of the victim.
32. PW4-Mahadevamma, PW5-Lakshmamma, P6-
Nagaraju, PW7-Rajesh and PW8-Krishna have not supported
the case of prosecution. Even during the course of cross-
examination made by the Special Public Prosecutor after
treating them as hostile witnesses, they have categorically
denied as to the statement recorded by the investigating officer
under section 161 of Code of Criminal Procedure marked as
Exhibits P11 to P15. Accordingly, the prosecution has failed to
elicit any favourable answers from them.
33. Viewed from any angle, I do not find any legal
evidence before this court to constitute the offence punishable
under sections 344, 363, 366, 368, 376(3) and 114 of Indian
Penal Code. On the contrary, materials placed before this court
reveals that the victim girl has voluntarily accompanied the
accused and the alleged sex is a consensual sex. Absolutely,
there is no evidence to show that there is penetrative sexual
assault on the victim. While answering Point No.1, this Court
has held that the trial court is not justified in coming to the
- 26 -
conclusion that the prosecution has failed to prove that the
victim was child as defined under section 2(d) of POCSO Act.
The prosecution has failed to prove the essential ingredients of
the commission of alleged offence under section 376 as defined
under Section 375 of Indian Penal Code. Accordingly,
prosecution has failed to place any cogent, convincing,
trustworthy or corroborative evidence to convict the accused
for commission of alleged offences. Hence, I answer Point No.2
two in the negative.
Regarding Point No.3:
34. For the discussion and reasons aforestated, I
proceed to pass the following:
ORDER
i) Appeals are allowed;
ii) Judgement of conviction and order on
sentence dated 14th September 2021, passed
in Special Case No.164 of 2018 by the
Principal District & Sessions Judge and
Special Judge for POCSO Cases,
Chamarajanagara, is set aside;
- 27 -
iii) Accused are acquitted of offences punishable
under sections 363, 366, 368, 114, 341,
376(3) of Indian Penal Code and sections 4,
8, 12 and 17 of POCSO Act;
iv) The bail bonds if any executed by appellants,
shall stand cancelled;
v) Registry is directed to send the copy of this
judgment along with the trial records to the
concerned court;
vi) Registry is also directed to communicate a
copy of this order forthwith to the
Superintendent of the concerned Jail for
compliance and release of the accused
No.1/Appellant in Criminal Appeal No.1638
of 2021.
vii) Registry is directed to pay an amount of
Rs.10,000/- to Smt. Archana.K.M, Amicus
Curiae, who has assisted the Court on behalf
of respondent No.1 in Crl.A. No.1645 of
2021.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
