Karnataka High Court

Vijaykumar S/O Doulappa Noolinavar vs The State on 23 July, 2025

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                  CRL.A No. 200073 of 2019


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                           IN THE HIGH COURT OF KARNATAKA

                                  KALABURAGI BENCH

                         DATED THIS THE 23RD DAY OF JULY, 2025

                                       PRESENT
                    THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                         AND
                        THE HON'BLE MRS. JUSTICE K S HEMALEKHA
                          CRIMINAL APPEAL NO.200073 OF 2019
               BETWEEN:

                    VIJAYKUMAR
                    S/O DOULAPPA NOOLINAVAR,
                    AGE: 25 YEARS, OCC: COOLIE,
                    R/O: VILLAGE, GANAPUR,
                    TQ: CHINCHOLLI,
                    DIST: KALABURAGI - 585 301.
                                                               ...APPELLANT

               (BY SRI NANDKISHORE BOOB, ADVOCATE)

Digitally      AND:
signed by
LAKSHMI T      1.   THE STATE THROUGH
Location:           MIRIYAN POLICE STATION
High Court
of Karnataka        NOW REPRESENTED BY
                    ADDL. SPP HCKB AT KALABURAGI - 585 101.

               2.   NAGAPPA
                    S/O MALAKAPPA
                    AGE: 51 YEARS, OCC: AGRI,
                    R/O: GANAPUR,TQ: CHINCHOLI,
                    DIST: KALABURAGI.
                                                           ...RESPONDENTS

               (BY SRI SIDDALING S. PATIL, ADDL SPP, FOR R1;
                   R2 IS SERVED )
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                                     CRL.A No. 200073 of 2019


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     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C 1973, PRAYING TO PLEASED TO CALL FOR THE
RECORDS OF THE COURTS BELOW, AND SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE AND
FINE IMPOSED ON THE APPELLANT/ACCUSED BY THE HON'BLE
II ADDITIONAL SESSIONS JUDGE, KALABURAGI, IN SPECIAL
CASE(POCSO)NO.17/2018,        DATED:17.01.2019,     FOR        THE
OFFENCES PUNISHABLE UNDER SECTION 376(2)(N), 366-A,
344, OF IPC & SECTION 6 OF POCSO ACT, 2012, IN VIEW OF
THE REASONS AS STATED ABOVE, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS

DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
           AND
           HON'BLE MRS. JUSTICE K S HEMALEKHA

                      ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

The accused/convict has preferred this appeal

against the judgment and order dated 17.01.2019 passed

by the Court of II Additional Sessions Judge, Kalaburagi, in

Special Case (POCSO) No.17/2018, whereby he is

convicted and sentenced for the offences punishable under

Sections 366-A, 344, 376(2)(n) of Indian Penal Code (for

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short 'IPC') and Section 6 of Protection of children from

Sexual Offences Act, 2012( for short 'POCSO Act').

2. It is the case of prosecution that, the accused

on 10.09.2017, in the afternoon took the minor girl

(victim) to his house at Ganapur, inducing that he will

marry her and committed rape on her and once again on

16.09.2017 at about 02.00 p.m., committed rape on her

and on 21.11.2017 at 12.00 noon, when she had been to

Nala at Ganapura Village, kidnapped her by taking her out

of the lawful guardianship of her parents with intent that

she may be compelled to marry him against her will and

she may be forced or seduced to illicit intercourse and

after kidnapping, wrongfully confined her in the house of

one Devidas (PW4) at Shivapur Galli, Humanabad and

repeatedly committed rape on her till 20.01.2018 and

thereby committed the charged offences.

3. Charges were framed against the accused for

the offence punishable under Sections 366-A, 344, 376

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(2)(n) of IPC and Section 5(j)(ii) and (l) of the POCSO

Act, 2012, punishable under Section 6 of the said Act.

4. The prosecution in all examined 16 witnesses

and got marked 21 documents and MO's 1 to 3, to

establish the charges leveled against the accused.

5. The defence of the accused was one of total

denial, however, he did not lead any evidence on his

behalf.

6. The learned session judge, vide impugned

judgment and order held the accused guilty of the offences

under Section 366A, 344, 376(2)(n) of IPC and Section 6

of the POCSO Act, 2012.

7. We have heard the learned counsel for the

appellant and the learned Additional SPP for the State.

Perused the evidence and material on record.

8. The law was set into motion by the victim's

father-PW2. In his complaint marked as Ex.P7, he has

stated that, on 20.11.2017 he had been to Tandur Village

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and at that time his wife and children were present in the

house. On 21.11.2017 at about 05.00 p.m., when he

returned to the house, he noticed his daughter(victim) was

missing and when he enquired with his wife, she informed

that at about 12.00 noon, the victim had been to the Nala

to wash the clothes and thereafter she did not return.

A missing complaint was lodged on 22.11.2017,

suspecting that the accused Vijay Kumar Son of Dulappa

might have kidnapped his daughter.

9. On receiving the complaint - Ex.P7 from PW2, a

missing case was registered by ASI-PW15 and he

forwarded the FIR- Ex.P21 to the jurisdictional Court. The

investigation was then transferred to the PSI - PW13 and

on 20.01.2018, on tracing the victim, she was produced

before him. He recorded the statement of the victim and

sent her for medical examination. Victim's statement was

recorded under Section 164 of Cr.PC. Further, on

22.01.2018, the accused was produced before him. He

conducted part of investigation and transferred the

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investigation to CPI-PW14, who sent seized articles for FSL

examination. Further investigation was taken over by

PW16, who after completion of investigation filed the

charge sheet.

10. According to the prosecution, the victim was a

minor aged about 17 years and the accused by

threatening, kidnapped her on 21.11.2017, when she had

been to Nala in Ganapur village, for washing the clothes

and then he took her to the house of

Devidas(PW4), wherein he repeatedly committed

penetrative sexual assault on her. It is also the case of

prosecution that even prior, on 10.09.2017 and

16.09.2017, accused took the victim to his house and

committed rape on her.

11. In order to prove the age of the victim, the

prosecution has mainly relied on the school certificate

issued by PW12 namely the Headmaster of Bambalagi

GHPS. The school certificate is marked as Ex.P19, as per

which the date of birth of the victim is 01.06.2000.

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Hence it is contended by the learned Additional SPP that,

in view of the said document and the evidence of PW12,

the prosecution has proved that the victim was aged below

18 years as on the date of the incident. It is further

contended that the evidence of PW2 and PW3 would

clearly reveal that the victim girl had studied upto 8th

Standard in the Government High School at Bombalagi

Village, which is not seriously disputed by the defence and

therefore, the Trial Court has rightly come to the

conclusion, based on the above evidence that the victim

was a minor.

12. After the victim was traced on 20.01.2018, she

was subjected to medical examination by the doctor-PW8.

We have Perused the evidence of PW8, who has deposed

that she was working as junior resident doctor in

Gynecology Department at GIMS Kalaburagi. On

20.01.2018 at 06.15 p.m., she examined the victim girl,

who informed that she was in relationship with Vijay

Kumar her neighbor since one year and at about four

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months back, he called her to his home and forcibly had

sexual intercourse by tying her mouth with a Dupatta.

She did not inform the matter to her family. Later, after

one month she missed her periods and even thereafter

they had sexual intercourse and the boy had assured to

marry her.

13. PW8 has stated that the victim was carrying 11

weeks one day old fetus and according to the radiologist

the victim was aged more than 18 years and according to

the dentist she was below 18 years. She issued the

preliminary medical certificate - Ex.P13, pending receipt of

the FSL report and after receipt of the FSL report, issued

final medical certificate as per Ex.P14. Further, as per FSL

report at Ex.P15, there was no evidence of seminal stains

in Item Nos.1 to 7 and 10 and no spermatozoa in Item

Nos. 8 and 9. She has opined that there was no evidence

of recent sexual act and age of the victim was below 18

years, according to the dentist and above 18 years,

according to the radiologist. Further, due to lapse of time,

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spermatozoa was not detected in cervical smear and

vaginal smear and the pregnancy of the victim shows that

she had participated in sexual act.

14. From the above evidence on record, we notice

that, as per school certificate issued by

PW12 - the headmaster of the school, wherein the victim

studied, date of birth of the victim is 01.06.2000 and in

that event, the victim was aged about 17 years 5 months

at the time of incident, but as per the radiologist, the

victim was aged more than 18 years and again as per the

dentist the victim was below 18 years.

15. PW12 has stated that he has issued the

certificate-Ex.P19 on the basis of the admission register.

The Trial Court perusing the original admission register

brought by the said witness, wherein the date of birth was

mentioned as 01.06.2000, accepted the said document

and held that the victim was a minor aged below 18 years

as on the date of incident.

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16. According to the prosecution, the victim studied

upto 8th standard in Government High School at Bombalagi

Village. PW12 in his cross examination has stated that on

the basis of the admission form filled by the parents, he

has mentioned the date of birth. He further stated that at

the time of admission, date of certificate was not

produced. PW2 in his cross examination has stated that

his mother admitted the victim to school at Bombalagi

Village and he does not know what was the date of birth of

the victim given by his mother at the time of admission.

From the evidence of the victim's mother - PW3, it is seen

that the victim was earlier studying in Mannaekhalli and

she was staying in her mother's house at Bombalagi

village and when her mother died, she was studying in 9th

Standard.

17. From the above evidence on record, it is clear

that, at the time of admission of the victim to the school,

there was no birth certificate produced and further that it

was not PW2 and PW3 who admitted the victim to the

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school on the other hand it was the mother of PW2 i.e.,

grand mother of the victim admitted her to school at

Bombalagi Village. It is contended by the learned counsel

for the appellant that in Ex.P19 the name shown is not

that of the victim and therefore, the prosecution has

concocted the said document for the purpose of present

case.

18. The prosecution has conducted medical

examination of the victim and we find from the evidence of

PW8 - doctor that the victim was subjected to both dental

and radiological examination for determination of her age

and the report of the said examination are contrary to

each other. As per the dentist, the victim was below 18

years, whereas according to the radiologist report, the

victim was aged above 18 years. Hence, it cannot be said

that the prosecution has been able to establish beyond

reasonable doubt that the victim girl was a minor aged

below 18 years as on the date of incident.

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19. The Hon'ble Apex Court in the case of Vinod

Katara vs. State of Uttar Pradesh, reported in 2022

SCC Online SC 1204 in Para 57 and 60, as held as

under:

"57. The bone ossification test (hereinafter "ossification test") is a test that determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. the most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive.

60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram

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Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681: (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bhiar, (2008) 15 SCC 223: (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt."

20. It is further held that the radiological

examination leaves a margin of two years on either side of

the age range as prescribed by the test irrespective of

whether the ossification test of multiple joint is conducted.

21. In the instant case, considering the evidence of

P.W.8 wherein she has stated that as per Radiologist

Report, the age of the victim was more than 18 years, we

are unable to accept the contention of the learned

Additional State Public Prosecutor that the prosecution has

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proved its case beyond reasonable doubt that the victim

was a minor aged below 18 years at the time of incident.

22. It is contended by the learned Additional State

Public Prosecutor that even accepting that victim was not

a minor, in view of her clear evidence wherein she has

supported the case of prosecution and stated that the

accused has kidnapped her by force and then confined her

in the house of P.W.4 at Shivapur Galli and the fact that

she was found to be pregnant, clearly establishes that the

accused has committed rape on the victim against her will.

23. The victim is examined as P.W.1. It is pertinent

to mention that according to the prosecution she was

kidnapped by the accused on 21.11.2017 and traced on

20.01.2018 and all along she was detained by the accused

and subjected to penetrative sexual assault. The

prosecution has also alleged that even prior to the said

incident, on two occasions i.e., on 10.09.2017 and

16.09.2017, the accused by luring the victim, took her to

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his house and committed rape on her. From Ex.P.7, we do

not find any allegation against the accused that he

committed rape on the victim on earlier two occasions. As

per prosecution, after the victim was traced, she revealed

to her parents about the earlier incident. However, P.W.3

i.e., victim's mother has categorically stated that the

victim has not narrated about the earlier incident. She

was treated hostile by the prosecution and cross-examined

by the learned Public Prosecutor. She has out-rightly

denied the suggestion made by the Prosecutor about the

victim having informed her about the incident that took

place on 10.09.2017 and 16.09.2017. Hence, a serious

doubt arises in the mind of the Court about the previous

incidents. Prosecution has not established the same

beyond reasonable doubt. The evidence of P.W.3, none

other than the mother of the victim demolishes the said

charges leveled against the accused.

24. It is contended by the learned counsel for the

appellant that the victim was neither forcibly taken by the

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accused nor she was threatened at any point of time and

the fact that she remained with the accused for about two

months itself goes to show that she had willingly

accompanied the accused. He further contended that the

ingredients of Section 366-A of IPC is also not attracted,

since it is not the case of the prosecution that the victim

was kidnapped by the accused with a knowledge or

intention that she may be forced to have sexual

intercourse with any other person. In support of his

contention, the learned counsel has relied on the judgment

of the Hon'ble Apex Court reported in (2018) 3 SCC

(Cri.) 391 in the case of Kavita Chandrakant Lakhani

Vs. State of Maharashtra and the judgment of the Apex

Court reported in 2018 (9) SCC 248 in the case of Rajak

Mohammad Vs. State of Himachal Pradesh.

25. In Kavita Chandrakant Lakhani (supra), the

Apex Court has held that:

" In order to constitute the offence of "abduction", a person must be carried off illegally by force or

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deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse.

11. Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So

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far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the court cannot hold the accused guilty and punish him under Section 366 IPC."

26. In the instant case, we have held the

prosecution has failed to establish that the victim was a

minor as on the date of incident. The ingredients of the

offence under Section 366-A of IPC are not attracted.

According to the prosecution, the accused by force and

posing threat to the victim, kidnapped her, when she had

gone to wash the clothes near the Nala.

27. A perusal of the evidence of victim - P.W.1

goes to show that the accused who was also a resident of

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the same village was residing in a house situated about

4-5 houses away from her house. He used to visit her

house and talk to her father and he was also talking to the

victim. She has deposed that at about 12.00 noon, when

she was washing the clothes near the stream, accused

came and by assuring her that he will marry, called her to

go out of the village, but she refused. The accused

threatened to kill her parents and brother and forcibly took

her to Mannaekhalli, District Bidar. Further, she has

stated that from there the accused took her to Kalaburagi

Railway Station and from there to Bangalore and kept her

in a room of his friend for 4-5 days. From Bangalore, he

took her to Humnabad and kept her in a rented home for

one and half month. She has not stated that even after

taking her forcibly by posing threat, the accused continued

to threaten her. In her cross-examination, she has

admitted that while going from Gulbarga to Bangalore, she

did not raise alarm and she and accused were alone

residing in the room in Bangalore and nearby there were

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other rooms and people were also residing in those rooms.

Further, she did not raise any alarm in Bangalore.

Further, in Humnabad Bus-stand and Bangalore bus-stand

she has not raised alarm.

28. The Learned Additional State Public Prosecutor

contended that because of the threat given by the

accused, victim did not raise any alarm. We are unable to

accept the said contention, considering the fact that the

victim traveled with the accused to various places and

stayed with him for about one and half month. She had

ample opportunity to raise alarm and complain to others.

It is relevant to refer to para No.3 of the judgment in

Rajak Mohammad (supra), which is extracted

hereunder:

"3. Apart from the above, from the evidence of Bimla Devi (PW 7) it appears that the prosecutrix has remained with the appellant-accused for about two days in Kullu in the house of PW 7 and that there were about 60-70 houses in the village. The materials on record also indicate that the

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prosecutrix remained in the company of the appellant-accused for about 12 days until she was recovered and that she had freely moved around with the appellant-accused in the course of which movement she had come across many people at different points of time. Yet, she did not complain of any criminal act on the part of the appellant- accused appellant."

29. In the above referred decision, the Apex Court

under similar circumstances wherein the prosecutrix

remained with the accused/appellant for a considerable

period of time and noticing that she had freely moved

around with the accused and she had come across many

people at different points of time but did not raise alarm or

complained to anyone, held that the possibility of

prosecutrix being a consenting party cannot be altogether

ruled out. In the case on hand, the said conclusion is

more probable in the light of the history furnished by the

victim before the doctor-PW8 that, she was in a

relationship with the accused for more than one year.

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30. The evidence of the victim - P.W.1 does not

inspire the confidence of this Court to hold that she was

taken forcibly by the accused by posing threat and she

was confined and subjected to rape against her will.

Moreover, P.W.4, the owner of the house, where the

victim and the accused stayed has deposed in his evidence

that the accused and the victim girl stayed in the room for

more than one month and without intimation both of them

left the room leaving their belongings. In the cross-

examination, he has stated that during their stay for about

one month, the victim has not informed him that the

accused was causing trouble to her.

31. For the reasons stated supra, the judgment of

conviction and order of sentence passed by the trial Court

convicting and sentencing the accused/appellant for

offences punishable under Section 366-A, 344, 370(2)(n)

of IPC and Section 6 of POCSO Act, 2012 is liable to be set

aside. Accordingly, we pass the following:

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ORDER

i) The judgment and order of conviction and

sentence dated 17.01.2019 passed by the

II Addl. Sessions Judge, Kalaburagi in

Special Case (POCSO) No.17/2018 is

hereby set aside.