Imam Hussain Appunisab Kuddunnavar vs The State Of Karnataka
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Karnataka High Court

Imam Hussain Appunisab Kuddunnavar vs The State Of Karnataka on 9 January, 2025

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

                                                    -1-
                                                                  NC: 2025:KHC-D:365
                                                            CRL.A No. 100311 of 2018




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                 DATED THIS THE 9TH DAY OF JANUARY, 2025
                                                  BEFORE
                            THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
                                   CRIMINAL APPEAL NO. 100311 OF 2018 (C)
                        BETWEEN:
                        IMAM HUSSAIN APPUNISAB KUDDUNNAVAR
                        AGE: 64 YEARS, OCC: COOLIE,
                        R/O: HALAMADDI DANDELI,
                        HALIYAL TALUK, UTTAR KANNADA DISTRICT.
                                                                        ...APPELLANT
                        (BY SRI. GANAPATHI BHAT, ADVOCATE)

                        AND:

                        THE STATE OF KARNATAKA
                        THROUGH POLICE INSPECTOR,
                        DANDELI RURAL POLICE STATION,
                        TQ: HALIYAL, DIST: UTTARAKANNADA.
                        R/BY STATE PUBLIC PROSECUTOR,
                        HIGH COURT, DHARWAD BENCH.
                                                                   ...RESPONDENT
                        (BY SRI. T. HANUMAREDDY, ADDL. GOVT. ADVOCATE)

                             THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
Digitally signed by B
                        SEEKING THAT THE SPECIAL JUDGE, UTTARA KANNADA IN SPL.
K
MAHENDRAKUMAR           CASE NO.22/2014 DATED 02.07.2018 U/S 376(2)(F), 448 & 506 OF
Location: HIGH
COURT OF
KARNATAKA
                        IPC AND SEC. 4 OF PROTECTION OF CHILDREN FROM SEXUAL
DHARWAD BENCH
Date: 2025.01.16
                        OFFENCES ACT, 2012 HAD ORDERED FOR PUNISHMENT TO
05:30:50 +0530
                        UNDERGONE 10 YEARS, RIGOROUS IMPRISONMENT AND TO PAY
                        A FINE OF RS.25,000/- AND IN DEFAULT OF PAYMENT FINE,
                        DIRECTED TO UNDERGO SI FOR PERIOD OF 2 YEARS. FURTHER
                        THE ACCUSED IS CONVICTED FOR THE OFFENCES P/U/S 448 OF
                        IPC TO UNDERGO SI FOR A PERIOD OF 1 YEARS AND TO PAY A
                        FINE OF RS.500/- AND IN DEFAULT OF PAYMENT OF FINE IS
                        DIRECTED TO UNDERGO A SI FOR A PERIOD OF 2 MONTHS, BE
                        SET ASID ETHE ORDER OF CONVICTION DATED 02.07.2018.
                            THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
                        WAS MADE THEREIN AS UNDER:

                        CORAM:   THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
                                   -2-
                                                NC: 2025:KHC-D:365
                                        CRL.A No. 100311 of 2018




                           ORAL ORDER

1. This appeal under Section 374(2) of the Criminal Procedure Code (for short, 'the Cr.P.C.') is filed challenging the judgment of conviction and order of sentence, wherein appellant has been convicted for the offences punishable under Sections 376(2)(F), 448 and 506 of the Indian Penal Code (for short, 'the IPC') and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act') and sentenced him to undergo rigorous imprisonment for a period of 10 years.

2. The case of the prosecution is that, on 20.04.2013 at, about 6.30 p.m., The accused found C.W.6, aged 10 years, and C.W.7, aged 8 years, alone in the complainant's house, Taking advantage of the fact that nobody was in the house, the accused trespassed into the complainant's house, Knowing fully well that the victim was a minor, he with sexual intent caught hold the hand of C.W.6 and kissed her hand, and when C.W.7 came C.W.6's rescue , he pushed her aside, and placed his hands on the private parts of C.W.6 , and caused simple injuries . He also threatened to kill her and throw her in the canal of Kali river, if she informed any other person. On 27.04.2013, the complainant went to the police station and lodged a complaint.

3. To prove its case, the prosecution examined P.Ws. 1 to 19, exhibited documents as Exs. P.1 to P.23, and marked objects as M.O. Nos. 1 to 6. The accused examined D.W.1, his daughter-in-law.

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4. The trial court, after appreciating the evidence on record and considering the arguments of both parties, framed points for consideration and held that:

"The prosecution has established the guilt of the accused beyond all reasonable doubt and passed the impugned judgment of conviction and order of sentence."

5. The appellant's learned counsel argued that even if the allegations against the accused are taken at face value, they do not satisfy the essential ingredients to constitute an offence punishable under Section 376(2)(f) of the IPC. It was further contended that the appellant has already served over 7 years of the sentence, and therefore, he is entitled to be released.

6. In response, the learned Additional Government Advocate for the respondent-State argued that the evidence on record clearly establishes the commission of offences under Section 376(2)(f) of the IPC and Section 4 of the POCSO Act, and as such, the conviction and sentence are justified.

7. After examining the trial court records and the arguments advanced, the following observations are made:

8. P.W.1 (Mother of the Victim): She supported the prosecution's case. Upon returning home on the date of the incident, she found both C.W.6 and C.W.7 crying. C.W.6 complained of stomach pain, burning sensation, and pain in her private parts. On further inquiry, C.W.6 narrated the incident.

NC: 2025:KHC-D:365

Nothing significant was elicited during cross-examination to discredit her testimony.

9. P.W.3 (Victim - C.W.6): As a child witness, her testimony corroborated the incident of sexual assault. She consistently stated that the accused had kissed her, touched her private parts, and caused injury. Her evidence remained unshaken during cross-examination.

10. P.W.4 (C.W.7): The second child present during the incident narrated the events, supporting the victim's testimony. Her evidence also stood firm during cross-examination.

11. P.W.5 (Father of the Victim): He stated that upon his return, the victim narrated the incident. He took her to the hospital and filed the complaint. His testimony corroborated the evidence of P.W.1 and P.W.3.

12. P.W.7 (Doctor who examined the accused): He stated that there were no signs of incapacity on the part of the accused to engage in sexual activity.

13. P.W.8 (Doctor who examined the victim): She noted injuries in the victim's private parts, redness, and pain, though no hymen was observed. Based on her examination and the histopathology report, she opined that some form of sexual assault had occurred, as reflected in the medical certificates (Ex.P.12 to Ex.P.15).

NC: 2025:KHC-D:365

14. P.W.11 (Retired Principal): She issued the victim's study certificate (Ex.P.18), confirming her date of birth as 10.10.2002, thus establishing that the victim was a minor at the time of the offence.

15. P.W.12 (Public Development Officer): She provided a house extract (Ex.P.19) to confirm the location of the incident.

Upon overall analysis of the evidence on record , the following is noted .

i) The testimonies of the victim, eyewitnesses, and parents were consistent and credible.

ii) Medical evidence corroborated the victim's account of sexual assault.

iii) The prosecution had proved beyond reasonable doubt that the accused committed the offences under Sections 376(2)(f), 448, and 506 of the IPC, as well as Section 4 of the POCSO Act.

16. Ex.P.15 certificate of final opinion reads as follows:

"On reply to the Letter No.Dy SP-Sub-Division/1112/2013, dated 04.07.2013, regarding the final opinion of Kum. Noorin Kasimsaab Shaikh, aged 10 years with G/O sexual assault on 20.04.2013.

Based on

Histopathology report from KIMS, Hubli dated 04.06.2013, Vaginal swab was dry due to lack of vaginal secretions. No listing was possible as swabs could not done in view of lack of secretions.

NC: 2025:KHC-D:365

Based on Forensic Lab, Mangalore report Reg No:

RFSC(ma)/813/2013 dated 26.06.2013.

a) Presence of seminal stains, Hand station and vaginal secretion was not detected on nail clipping vaginal -- (shade) on her dresses.

b) Spermatozoa was not detected in the sent articles.

c) Presence of skin tissues was not detected.

3. Based on examination findings done by me on 27.04.2013.

Local examination findings which shows:

a) Redness on inner sides of labia on both sides.

b) Tenderness hymen absent. no discharge/bleeding.

c) Congestion over the area on palpation.

d) Congestion noted once anterior and posterior of vaginal wall (part seen on separation of labia)

I am of the final opinion that

There is no evidence of recent sexual intercourse examination findings are suggestive of vaginal penetration."

17. Section 375 of the IPC defines the term "rape." Sub- clause (b) states that a man is said to have committed rape if he inserts, to any extent, any object or part of his body (other than the penis) into the vagina, urethra, or anus of a woman, or makes her do so with him or any other person.

18. In the instant case, the prosecution has established that the accused inserted his finger into the vagina of P.W.3, the survivor. Therefore, the trial court, taking into account the evidence of the survivor and the medical opinion, has rightly convicted the accused for the offence punishable under Section 376(2)(f). I find

NC: 2025:KHC-D:365

no illegality in the impugned judgment and order of conviction. Accordingly, I pass the Following:

ORDER

The appeal is dismissed.

Sd/-

(HEMANT CHANDANGOUDAR) JUDGE

AC Ct:vh