Karnataka High Court
Akash And Anr vs The State And Anr on 30 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2025:KHC-K:685
CRL.A No. 200184 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200184 OF 2024
(374(Cr.PC)/415(BNSS))
BETWEEN:
1. AKASH S/O RAJU RATHOD,
AGE ABOUT 20 YEARS, OCC: LABOURER,
R/O. JUNGALEE PEER THANDA,
TQ. CHINCHOLI, KALABURAGI-585306.
2. DILEEP S/O THAVARU,
AGE ABOUT 19 YEARS, OCC: LABOURER,
R/O. BHUYAR-K, NEMU THANDA,
TQ. CHINCHOLLI, KALABURAGI-585306.
...APPELLANTS
(BY SMT. ARUNA P. CHAVAN, ADVOCATE)
Digitally signed AND:
by SHIVAKUMAR
HIREMATH
Location: HIGH
1. THE STATE THROUGH
COURT OF CHITAGUPPA POLICE STATION,
KARNATAKA NOW REPRESENTED BY
ADDL. SPP, HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585102.
2. VICTIM REPRESENTED BY
SRI MANIK RATHOD,
S/O SHANKAR RATHOD, (FATHER OF THE VICTIM),
R/O. BHUYYAR (K), NEMU NAYAK TANDA,
TQ. CHINCHOLLI, DIST. KALABURAGI.
...RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1
SRI SHARANAGOUDA PATIL, ADVOCATE FOR R2)
-2-
NC: 2025:KHC-K:685
CRL.A No. 200184 of 2024
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED BY THE HON'BLE
II ADDITIONAL DISTRICT AND SESSIONS JUDGE BIDAR
SITTING AT BASAVAKALYAN IN CRIME NO. 145/2019 OF
CHITAGUPPA POLICE STATION IN SPL. (POCSO) 171/2020)
DTD. 12-03-2024 BY ALLOWING THIS APPEAL CONSEQUENTLY
ACQUIT THE APPELLANTS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366, 366(a), 376(4), 370(A). OF IPC AND U/S
4(2), 12 AND OF POCSO ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This appeal under Section 374(2) of Cr.P.C is filed by
accused Nos.1 & 2 assailing the Judgment and order of
conviction dated 12.03.2024 and order of sentence dated
13.03.2024 passed by the Court of II Additional District
and Sessions Judge, Bidar, sitting at Basavakalyan, in
Special Case (POCSO) No.171/2020.
2. Heard the learned counsel for the parties.
3. Accused Nos.1 & 2 and another were charge-sheeted
by Circle Inspector of Chitaguppa Police Station for
NC: 2025:KHC-K:685
offences punishable under Sections 366, 366-A, 376(4),
370A of Indian Penal Code, (for short 'IPC') and Sections
4(2) and 12 of Protection of Children from Sexual Offences
Act, 2012 (for short 'POCSO Act') and Sections 8 & 10 of
Prohibition of Child Marriage Act, 2006.
4. It is the case of the prosecution that on 12.12.2019
at about 02.30 p.m. at Katthalli Village, Chincholi Taluk,
accused No.2 had introduced the victim girl to accused
No.1 and had left her with him. Thereafter, accused No.1
took the victim girl to Hyderabad and they stayed there in
a house for a period of about 2 days. It is alleged that
when accused No.1 and the victim girl were staying in the
house at Hyderabad, accused No.1 allegedly had sexual
intercourse with the victim girl against her wishes and
subsequently on 14.12.2019, he married the victim girl in
the presence of C.W.14 and thereby committed the
charge-sheeted offences.
5. The accused after appearing before the trial Court,
claimed to be tried and therefore the prosecution in order
NC: 2025:KHC-K:685
to prove its charges against the accused, in all had
examined 17 witnesses as P.W.1 to P.W.17 and got
marked 26 documents as Ex.P.1 to Ex.P.26. No material
objects were got marked on behalf of the prosecution.
After the prosecution had closed its side of evidence, the
statement of the accused under Section 313 of Cr.P.C.,
was recorded. However, no evidence was led on behalf of
the defence, but two documents were got marked as
Ex.D.1 and Ex.D.2 in support of the defence. The trial
Court after hearing the arguments addressed on both
sides vide Judgment and order dated 12.03.2024,
convicted the accused Nos.1 and 2 for the offences
punishable under Sections 366, 366A, 376(4), 370A of IPC
and Section 4(2) and 12 of POCSO Act, 2012 and
acquitted them for the offences punishable under the
provisions of Prohibition of Child Marriage Act. Thereafter,
by order dated 13.03.2024, the trial Court has sentenced
the accused No.1 to undergo rigorous imprisonment for a
period of 10 years and pay fine of Rs.5,000/- for the
offence punishable under Section 376(2)(n) of IPC and in
NC: 2025:KHC-K:685
default to undergo simple imprisonment for a period of
one month. The accused Nos.1 and 2 were also sentenced
to undergo rigorous imprisonment for a period of 03 years
and pay fine of Rs.2,000/- each for the offence punishable
under Section 366 of IPC and in default to undergo simple
imprisonment for a period of one month. For the offence
punishable under Section 366A of IPC, accused Nos.1 and
2 were sentenced to undergo rigorous imprisonment for a
period of three years and pay fine of Rs.2,000/- each and
in default to undergo simple imprisonment for a period of
one month. For the offence punishable under Section
370A(2) of IPC, accused Nos.1 and 2 were sentenced to
undergo rigorous imprisonment for a period of three years
and pay fine of Rs.2,000/- each and in default to undergo
simple imprisonment for a period of one month. Being
aggrieved by the impugned Judgment of conviction and
order of sentence passed by the trial Court, the accused
Nos.1 and 2 are before this Court in this appeal.
NC: 2025:KHC-K:685
6. Learned counsel for the appellants submits that, the
trial Court has recorded a finding that, the prosecution has
failed to prove the age of the victim-girl and therefore, the
accused persons cannot be convicted for the offences
punishable under the provisions of POCSO Act. In spite of
such a finding, the trial Court has convicted the appellant
even for the offence punishable under the provisions of
POCSO Act. The material on record would go to show that,
the accused No.1 and the victim-girl were in love and the
victim-girl had voluntarily accompanied the accused No.1
and had stayed with him at Hyderabad for a period of two
days and they had returned back voluntarily after coming
to know that, a criminal case was registered. Therefore, it
appears that, the relationship between the parties was
consensual and the conviction even for the offence
punishable under the Indian Penal Code is bad in law.
Accordingly, she prays to allow the petition.
7. Per contra, learned High Court Government Pleader
has opposed the prayer made in the appeal. She submits
NC: 2025:KHC-K:685
that, the trial Court having appreciated the oral and
documentary evidence available on record, has rightly
convicted the accused Nos.1 and 2 for the offences
punishable under provisions of Indian Penal Code. Even if
the prosecution has not proved the age of the victim-girl in
the manner known to law, the offences punishable under
the Indian Penal Code gets attracted against the accused
persons. Accordingly, she prays to dismiss the appeal.
8. The charge-sheet in the present case has been filed
against three persons for the offences punishable under
Sections 366, 366A, 376(3), 370(4), 109 of IPC and
Section 4(2) and 12 of POCSO Act and Sections 8 and 10
of Prohibition of Child Marriage Act. The trial Court has
convicted the accused Nos.1 and 2 for the aforesaid
offences punishable under the provisions of Indian Penal
Code and POCSO Act, and has acquitted them for the
offences punishable under the provisions of Prohibition of
Child Marriage Act. For the purpose of convicting an
accused under the provisions of POCSO Act, the
NC: 2025:KHC-K:685
prosecution is primarily required to prove that, the victim-
girl was a minor as on the date of the alleged incident. In
the case on hand, the prosecution has failed to prove the
age of the victim-girl by producing necessary material
before the trial Court as provided under the law. The law
in this regard has been reiterated by Hon'ble Supreme
Court in the case of P.Yuvaprakash vs. State
represented by Inspector of Police1 and in paragraph
13 it is observed as follows:
"13.It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to
the age of a person arises in the context of her or
him being a victim under the POCSO Act, the courts
have to take recourse to the steps indicated in
Section 94 of the JJ Act. The three documents in
order of which the Juvenile Justice Act requires
consideration is that the concerned court has to
determine the age by considering the following
documents:
"(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
2023 SCC Online SC 846
NC: 2025:KHC-K:685
concerned examination Board, if available; and in
the absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above,
age shall be determined by an ossification test or
any other latest medical age determination test
conducted on the orders of the Committee or the
Board".
9. In the case on hand, none of the aforesaid three
modes for proving the age of the victim-girl has been
complied by the prosecution and on the other hand, the
prosecution has only produced certified copy of the Adhaar
Card of the victim-girl which is marked as Ex.P.24. The
trial Court has framed five points that arises for
determination in the present case and point No.4 reads as
follows:
"4. Whether the prosecution proves beyond all
reasonable doubts that, accused No.1, knowing that
CW-2 victim is minor girl married with her and thereby
committed offence punishable under Section 8 and 10
of Child Marriage Prevention Act?"
- 10 -
NC: 2025:KHC-K:685
10. In paragraph No.37 of the Judgment, the trial Court
has observed that, the prosecution has failed to produce
any document pertaining to the age of the victim-girl
before the Court either during the trial or at the time of
filing the charge-sheet and also the prosecution has not
made any efforts in this regard, therefore, the prosecution
has failed to comply Section 94 of Juvenile Justice (Care
and Protection of Children) Act, 2015 and therefore, the
accused Nos.1 to 3 are held entitled for acquittal under the
aforesaid alleged charges. In paragraph No.39 of its order,
the trial Court has observed as follows:
"39. xxxxxxxxxxx But the prosecution has failed to
connect the crime accused No.1 and 2 for the alleged
charge under Section 4(2), 12 of POCSO Act and
Section 8, 10 of Prevention of Child Marriage Act, and
also prosecution has failed to prove the charge against
the accused No.3 for the offence under Section 366,
366(a), 370A, 376(2)(N) of IPC., and Section 4(2), 12
of POCSO Act and Section 8, 10 of Prevention of Child
Marriage Act. The Ex.P24 Certified copy of Adhaar card
of Victim girl is not valid and substantive peace of
evidence to show the actual age of victim below 18
years.
- 11 -
NC: 2025:KHC-K:685
11. In spite of such a finding recorded by the trial Court,
without application of mind, the trial Court has proceeded
to convict the accused Nos.1 and 2 for the offence
punishable under Sections 366, 366A, 376(4), 370A of IPC
and also for the offence punishable under Section 4(2) and
12 of POCSO Act. The trial Court having recorded a finding
that the prosecution has failed to prove the age of the
victim in the manner known to law, could not have been
convicted the accused Nos.1 and 2 for the offences
punishable under the provisions of POCSO Act. This
approach of the trial Court is totally illegal and therefore,
the order of conviction passed against the accused Nos.1
and 2 for the offences punishable under the provisions of
POCSO Act, cannot be sustained.
12. The victim-girl has been examined in the present
case as P.W.3. P.W.2 who is the father of the victim-girl, is
the complainant in the present case. P.W.2 has stated
that, he along with his family members and his minor
daughter who is the victim in the present case, had gone
- 12 -
NC: 2025:KHC-K:685
to attend a festival in a Temple in their village on
12.12.2019 and at about 2.30 p.m., on the said date, he
found that his minor daughter was missing. Efforts made
to trace her had failed and therefore, a missing complaint
was submitted by him before the police on 14.12.2019.
Subsequently, he was summoned to the police station and
he had gone to the police station along with his family
members. In the police station, the accused No.1 and the
victim-girl were present. On verification he learnt that, the
accused No.2 had taken the victim-girl along with him and
introduced her to accused No.1, who thereafter had taken
her to Humnabad bus stand and from the said bus stand
they traveled together to Hyderabad and stayed there in
their relatives house and accused had sexual intercourse
with the victim-girl in the said house and subsequently
married her. From a reading of the deposition of P.W.2, it
is evident that, only on the information received from his
daughter, he came to know about the alleged act
committed by the accused persons.
- 13 -
NC: 2025:KHC-K:685
13. The victim-girl has been examined as P.W.3. She has
stated that, on 12.12.2019 she had met accused No.2,
who introduced her to accused No.1. She and accused
No.1 went in the motorbike of accused No.3 to Humnabad
bus stand and from Humnabad bus stand they traveled to
Hyderabad in a bus and accused No.1 took her to his
relative's house at Hyderabad and they stayed there. She
has alleged that, accused No.1 had sexual intercourse with
her while she stayed with him in Hyderabad. On the next
day, he had taken her to a Temple and they got married.
Thereafter the accused No.1 took her to his Aunt's house
at Mannaikheli village. A Police Constable, who came
there, brought them to the police station and thereafter
her parents were summoned.
14. The statement of the victim-girl under Section 164 of
Cr.P.C., has been marked as Ex.D.1 in the present case. A
perusal of the same would go to show that, there is no
allegation against the accused No.1 about he committing
sexual assault on the victim-girl and it is for the first time,
- 14 -
NC: 2025:KHC-K:685
such an allegation was made by her during the course of
her deposition. In her statement under Section 164 of
Cr.P.C., she has stated that, for a period of about two
days, she had roamed with accused No.1 at Hyderabad
and when she made a telephone call to her parents, she
came to know about the criminal case registered by them.
She has stated that, her parents refused to withdraw the
criminal case and therefore, she and accused No.1
returned to Charanalli village. She has specifically stated
that, accused No.1 had not committed any wrong.
15. The medical examination report of the victim-girl is
produced at Ex.P.20. In the said report, though it is stated
that, the hymen was not intact, but it is also stated that,
there were no injuries found on the external genitals or
any other part of the body of the victim-girl. P.W.12 -
Dr.Pallavi has issued Ex.P.20. This witness has stated that,
no semen was found on the clothes of the victim-girl and
the victim-girl had no injuries on her body. She has also
stated that, victim had not suffered injuries on her private
- 15 -
NC: 2025:KHC-K:685
part, but her hymen was ruptured. During the course of
cross examination this witness has stated that she was not
in a position to say the reason for tear of victim's hymen.
She has admitted during her cross-examination that, she
did not find any signs of sexual assault on the victim-girl
when she had medically examined the victim-girl.
16. The prosecution in the present case has utterly failed
to prove that, the victim-girl was a minor as on the date of
the alleged incident. The medical records of the victim-girl
and the deposition of the Doctor who had medically
examined victim and issued medical report at Ex.P.20 also
do not prima-facie suggest of any forcible sexual assault
on the victim-girl. The victim-girl has not made any
allegation against the accused No.1 about he committing
forcible sexual assault on her in her statement at Ex.D.1,
recorded under Section 164 of Cr.P.C. The material on
record, more so, the evidence of P.W.2 and P.W.3 would
go to show that, the victim-girl had accompanied the
accused No.1 in a private transport from Humnabad to
- 16 -
NC: 2025:KHC-K:685
Hyderabad and they had stayed together in the Aunt's
house of accused No.1 for a period of two days. The
victim-girl in her statement under Section 164 of Cr.P.C.,
has stated that, she had roamed with accused No.1 at
Hyderabad during the said two days and she has also
stated that, thereafter, they had returned to the Aunt's
house of accused No.1 at Mannaikheli village. From the
overall appreciation of the evidence on record, it appears
that, the victim-girl had voluntarily accompanied the
accused No.1 from her village, initially to Humnabad and
thereafter to Hyderabad and had stayed with him for a
period of two days. The allegation as against the accused
No.2 is that, he had taken the victim-girl on 12.12.2019
along with him and had introduced her to accused No.1
and thereafter left her with accused No.1. Since the
prosecution has failed to prove that the victim-girl was a
minor, the alleged offence under Section 366A of IPC,
cannot be invoked in the present case. Since the material
on record would also go to show that, the victim-girl had
voluntarily accompanied the accused persons and she had
- 17 -
NC: 2025:KHC-K:685
voluntarily traveled along with accused No.1 from her
village to Humnabad and thereafter to Hyderabad in a
private transport, it appears that, the relationship between
the parties was consensual and therefore, the trial Court
had erred in convicting the accused Nos.1 and 2 even for
the offence punishable under the provisions of the Indian
Penal Code. Since the trial Court has acquitted the accused
persons for the offences punishable under the provisions
of Prohibition of Child Marriage Act, there is no justification
for convicting the accused for the offences punishable
under Section 366 of IPC. The offence punishable under
Section 366A of IPC gets attracted only if the victim is a
minor girl and in the case on hand, the finding recorded by
the trial Court is that, the prosecution has failed to prove
the age of the victim-girl. There is no allegation in the
charge-sheet that, the victim-girl was trafficked or that
she was exploited for being trafficked and therefore, the
trial Court was also not justified in convicting the accused
persons for the offence punishable under Section 370A of
IPC. The trial Court without properly applying its mind to
- 18 -
NC: 2025:KHC-K:685
the facts of the case, in the absence of material evidence
containing the necessary ingredients which are prima-facie
required to invoke the charge-sheeted offences, has erred
in convicting the accused Nos.1 and 2 for the offence
punishable under Sections 366, 366A, 376(4), 370A of IPC
and Section 4(2) and 12 of the POCSO Act. Under the
circumstances, I am of the opinion that the Judgment and
order of conviction and order of sentence passed by the
trial Court cannot be sustained. Accordingly, the following
order:
ORDER
(i) The Judgment and order of conviction
dated 12.03.2024 and order of sentence dated
13.03.2024 passed by the court of II Additional
District and Sessions Judge, Bidar, in Spl. Case
No.171/2020, is set aside.
(ii) Accused Nos.1 and 2 are acquitted of
the offences punishable under Sections 366,
- 19 -
NC: 2025:KHC-K:685
366A, 376(4), 370A of IPC and Sections 4(2) and
12 of POCSO Act.
(iii) Consequently, the bail bonds of the
accused Nos.1 and 2 if any, shall stands
cancelled and the fine amount deposited by them
shall be refunded.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
DHA,SVH
CT:PK
