Sayyed Sajid Husain S/O Sayyed ... vs The State Of Karnataka
2025 Latest Caselaw 3536 Kant

Karnataka High Court

Sayyed Sajid Husain S/O Sayyed ... vs The State Of Karnataka on 4 February, 2025

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

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                                                                      NC: 2025:KHC-D:2177
                                                               CRL.A No. 100427 of 2022




                                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                     DATED THIS THE 4TH DAY OF FEBRUARY, 2025
                                                      BEFORE
                                 THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
                                       CRIMINAL APPEAL NO. 100427 OF 2022 (C)

                            BETWEEN:

                            SAYYED SAJID HUSAIN
                            S/O. SAYYED SAMIVUDDIN SULEDAR,
                            AGE. 31 YEARS, OCC. PRIVATE WORK,
                            R/O. 270 KAKANAGAR, NEAR TELUGU CHURCH,
                            HATTI LINGASUR, RAICHUR.
                                                                            ...APPELLANT
                            (BY SRI. M.J.PEERJADE AND SRI. U.G.KATTIMANI, ADVOCATES)

                            AND:

                            1.   THE STATE OF KARNATAKA
                                 THROUGH POLICE INSPECTOR,
                                 SUBURBAN POLICE STATION, DHARWAD,
                                 R/BY THE STATE PUBLIC PROSECUTOR,
                                 HIGH COURT OF KARNATAKA BENCH,
                                 DHARWAD-580011.

                            2.   MANJULA W/O. MAHANTESH BIJJAL
                                 (MOTHER OF VICTIM), R/O. MASKI,
BK
MAHENDRAKUMAR                    TQ. LINGSUR, DIST. RAICHUR-584101.
Digitally signed by B K
MAHENDRAKUMAR
                                                                       ...RESPONDENTS
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.02.07 11:09:18
+0530
                            (BY SRI. PRAVEENA Y.DEVAREDDIYAVARA, HCGP FOR R1;
                            SRI. GANAPATHI BHAT, AMICUS CURIAE FOR R2)

                                  THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.
                            SEEKING TO THE JUDGMENT OF CONVICTION RECORDED BY THE
                            II ND ADDITIONAL DISTRICT AND SESSIONS JUDGE DHARWAD
                            CONVICTING THE ACCUSED OF THE OFFENCES UNDER
                            SECTIONS 366, 343, 376, 506 IPC AND SECTION 6 OF THE
                            P.O.C.S.O. ACT VIDE ITS JUDGMENT DATED 08.11.2021 AND
                            SENTENCE DATED 05.11.2021 IN SPECIAL SESSIONS CASE
                            NO.41/2018 BE KINDLY SET ASIDE AND THE ACCUSED MAY BE
                            ACQUITTED OF THE SAID OFFENCES.
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                                               NC: 2025:KHC-D:2177
                                         CRL.A No. 100427 of 2022




    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:         THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

                             ORAL ORDER

1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the accused challenging the judgment of conviction dated 08.11.2021 and order of sentence dated 09.11.2021, passed in Spl. S.C. No. 41/2021 by the II Additional District and Sessions Judge & Special Judge, Dharwad. By the impugned judgment and order, the appellant/accused has been convicted for offences punishable under Sections 366, 343, 376, and 506 of the Indian Penal Code, 1860, and Section 6 of the Protection of Children from Sexual Offences Act, 2012, and sentenced to undergo rigorous imprisonment for ten years along with a fine.

2. The prosecution's case is that when the survivor was studying in high school in Maski, the accused was her computer teacher. After completing her studies, the survivor moved to Dharwad for higher education. On 20.09.2018, the accused came to Dharwad and threatened her to speak to him regularly over the phone. Between 11.08.2018 and 20.08.2018, while the survivor was on vacation in her village, the accused allegedly coerced her into meeting him upon her return to Dharwad. On 20.08.2018, fearing for her life and that of her parents, the survivor went to Vivekananda Circle, Dharwad, as instructed by the accused. From

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there, he allegedly took her to a lodge and committed forcible sexual intercourse.

3. The prosecution further alleges that the accused had previously subjected the survivor to sexual assault under threats of harm. On 22.08.2018, the accused allegedly took her to Bangalore, rented a house, and committed forcible sexual intercourse on 27.08.2018. Subsequently, the survivor's uncle and the police traced them to the rented house and brought her back to Dharwad.

4. To prove its case, the prosecution examined 29 witnesses (P.Ws.1 to 29), exhibited 44 documents (Exs.P.1 to P.44(a)), and produced 15 material objects (M.O.1 to M.O.15). The Trial Court, upon appreciation of evidence, recorded a finding that the prosecution had established the guilt of the accused beyond all reasonable doubt and accordingly passed the impugned judgment of conviction and order of sentence.

5. Learned counsel for the appellant submits that the statement of the survivor before the doctor who examined her establishes that the sexual intercourse was consensual. He further argues that the prosecution has failed to prove that the survivor was a minor at the time of the incident. Hence, the impugned judgment and order are legally unsustainable.

6. In response, learned Amicus Curiae appearing for respondent No.2-complainant submits that the survivor was 17

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years and 3 months old at the time of the incident. He contends that the survivor's statement under Section 164 of Cr.P.C., as well as her testimony during examination-in-chief, clearly establishes that the accused had forcible sexual intercourse with her. He further submits that nothing was elicited in her cross-examination to discredit her testimony. Therefore, the Trial Court's judgment is legally sustainable and does not warrant interference.

7. After considering the submissions of both parties and perusing the Trial Court records, the following point arises for consideration:: Whether the prosecution has established the guilt of the accused beyond all reasonable doubt, and whether the impugned judgment and order passed by the Trial Court are legally sustainable?

8. Initially, the mother of the survivor (P.W.6) filed a missing complaint. During the investigation, the accused and survivor were traced to a rented house in Bangalore and brought back to Dharwad. Thereafter, the Assistant Sub-Inspector of Police (P.W.1) lodged a First Information Report (FIR) in Crime No.98/2018.

9. The entire case of the prosecution hinges on the testimony of the survivor. However, the testimony of P.W.6 (mother of the survivor) holds no relevance, as the survivor never complained to her mother about the alleged forcible sexual intercourse. Therefore, the testimonies of P.W.5 (the survivor) and

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P.W.14 (the doctor who examined the survivor) are crucial for adjudicating this appeal.

10. In her statement under Section 164 Cr.P.C., the survivor reiterated the allegations in the FIR. During the examination-in-chief, she supported the prosecution's case. However, in cross-examination, she admitted that she did not disclose the forcible sexual intercourse due to fear. She also admitted that she never complained to the school authorities about the accused.

11. The survivor further admitted that:

● She met the accused 7 to 8 times at Chennamma Park, Dharwad, and 5 times at National Lodge, Dharwad, within 1.5 months.

● She possessed a mobile phone given by the accused and frequently exchanged messages with him. ● She voluntarily traveled to Bangalore with the accused by bus and did not seek help from fellow passengers. ● During her stay in the rented house from 23.08.2018 to 27.08.2018, the accused left for work daily from 9:30 AM to 5:00 PM, yet she never attempted to escape or seek help from neighbors..

12. After being brought to Dharwad, the survivor underwent a medical examination at District Hospital, Dharwad.

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The medical records (Exs.P.24 & P.25) issued by the Senior Specialist indicate that:

• The survivor was in love with the accused, who was her teacher.

• She had voluntarily traveled to Bangalore without coercion or undue influence.

• The hymen was not intact, but there were no signs of forcible sexual assault.

13. To prove the survivor's age, the prosecution relied on Ex.P.35 (school register), which records her date of birth as 02.05.2001. Since the incident occurred in 2018, the survivor was 17 years and 3 months old at the time.

14. The Hon'ble Supreme Court in P. Yuvaprakash v. State (Rep. by Inspector of Police) held that school or matriculation certificates are the primary evidence to determine age, followed by birth certificates issued by municipal authorities. Only in their absence can age be determined through ossification or other medical tests.

15. In Vinod Katara v. State of Uttar Pradesh, the Supreme Court ruled that radiological age determination has a margin of error of two years. Therefore, unless corroborated by documentary evidence, it cannot conclusively establish that the survivor was a minor.