Karnataka High Court
Krishna vs The State Of Karnataka on 6 June, 2025
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CRL.A No. 100214 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CRIMINAL APPEAL NO.100214 OF 2016 (C)
BETWEEN:
KRISHNA S/O. GYANAPPA BHOSLE
AGE: 21 YEARS, OCC: FISHERY BUSINESS,
R/O. RAMPUR RC TQ AND DIST: BAGALKOT.
...APPELLANT
(BY SRI. N.L.BATAKURKI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BAGALKOT RURAL POLICE STATION,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
Digitally signed
by
MOHANKUMAR CRPC PRAYING TO ADMIT THE APPEAL AND CALL FOR THE RECORDS
B SHELAR
Location: HIGH
COURT OF
FROM COURT BELOW AND SET ASIDE THE JUDGMENT AND
KARNATKA
DHARWAD
BENCH
SENTENCE DATED 14.07.2016 PASSED BY THE II ADDL. DISTRICT
Date: 2025.06.19
14:55:08 +0530 AND SESSIONS JUDGE BAGALKOT IN SPL.C.NO.35/2014 AND IT IS
MOST HUMBLY PRYAED TO ACQUIT THE APPELLANT FOR THE
ALLEGED OFFENCES IN THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
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CRL.A No. 100214 of 2016
HC-KAR
ORAL JUDGMENT
The convicted accused in Spl.C.No.35/2014 on the file of
the II Additional District and Sessions Judge, Bagalkot
(hereinafter referred to as the 'trial Court' for short) has filed
this appeal challenging the judgment dated 14.07.2016 and the
order of sentence dated 14.07.2016, by which he was convicted
for the offence punishable under Section 12 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred
to as 'the POCSO Act, 2012' for short) and sentenced to
undergo simple imprisonment for one year and to pay fine of
Rs.5,000/- and compensation of Rs.10,000/- to the victim girl.
2. The case of the prosecution is that, PW.1 informed
the respondent-police on 02.12.2013 at Bagalkot that the
accused was residing in the same lane where her house was
situated and that the accused used to tease her daughter. She
claimed that at the instance of the elders in the village, the
accused owned up his mistake and agreed not to repeat it. She
alleged that after the said incident, whenever she walked in the
lane, the accused used to abuse her and when questioned, he
took her caste and threatened to kidnap and murder her. She
alleged that she tolerated these incidents. However, on
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30.11.2013 when she and her husband were out of the house,
the accused had thrown stones at her house which was
informed to her by other residents. Later, her husband
informed this to the parents of the accused who told him that
they had given up on him and to do whatever that was required
to be done.
3. Based on this, the respondent-Police registered
Crime No.263/2013 for offences punishable under Sections
336, 354, 504, 506 of the Indian Penal Code, 1860 (hereinafter
referred to as 'IPC' for short) and Section 3(1)(x)(xi) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act' for
short). The respondent-Police recorded the statements of the
complainant, the victim girl and the father of the victim. The
respondent-Police also recorded the statements of villagers who
had warned the accused and who had informed the
complainant that the accused had pelted stones at her house.
The respondent-Police secured the caste certificate of the
complainant from PW-12. Based on these material, a charge
sheet was laid for offences punishable under Sections 336, 354,
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504, 506 of IPC and Section 3(1)(x)(xi) of SC/ST Act and
Section 12 of the POCSO Act, 2012. The accused was arrested
on 04.12.2013 and released on bail on 24.01.2014. Copies of
the charge sheet were furnished to the accused and charges
were framed for offences punishable under Sections 336, 354,
504, 506 of IPC read with Section 3(1)(x)(xi) of the SC/ST Act
and Section 12 of POCSO Act, 2012. The accused pleaded not
guilty and claimed to be tried.
4. The respondent-Police examined the complainant as
PW.1 and the engineer who had drawn the sketch of the scene
of the crime as PW.2, the victim girl as PW.3 and the father of
the victim as PW.4.
5. PW.5, PW.6, PW.7 and PW.8 were the elders of the
village who had warned the accused against harassing the
victim girl. These witnesses turned hostile. PW.9, PW.10 and
PW.11 who supposedly had informed PW.1 that the accused
had pelted stones at her house also turned hostile. PW.12 was
the Tahsildar who placed on record the caste certificate of PW.1
which was marked at Ex.P.13. PW.13 was also one of the
persons who had informed PW.1 about the accused pelting
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stones and he also turned hostile. PW.14 was the Police
Inspector who registered FIR and PW.15 was the Dy.S.P. and
the Investigating Officer. The trial Court confronted the
incriminating evidences to the accused under Section 313 of
Cr.P.C., and he denied the same. The accused led evidence and
marked Ex.D1 to D4.
6. Based on the oral and documentary evidence, the
trial Court held that the evidence of PW.1, PW.3 and PW.4
established beyond doubt that the accused was sexually
harassing the girl. It noticed that there was no evidence to
establish the offences punishable under Sections 336, 504, 506
of IPC and Section 3(1)(x)(xi) of the SC/ST (Prevention of
Atrocities) Act. However, it noticed that the evidence of PW.1,
PW.3 and PW.4 established that the accused was sexually
harassing the girl and therefore, convicted the accused for
offence punishable under Section 12 of POCSO Act and
sentenced him to undergo simple imprisonment for a period of
one year and to pay fine of Rs.5,000/- and also compensation
of Rs.10,000/- to the victim girl. Being aggrieved by the same,
the accused is before this Court in this appeal.
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7. Sri.N.L.Batakarki, learned counsel for the accused
contended that the accused and the complainant (PW.1) were
residing in the same lane. He contends that both the families
were known to each other. He further contends that there were
certain issues between PW.1 and the mother of the accused
and in order to settle scores, the instant complaint was lodged
by PW.1. He submits that the entire case of the prosecution is
false. He further submits that except the self-serving evidence
of PW.1, PW.3 and PW.4, none of the prosecution witnesses
supported the prosecution. He further contends that for an
offence punishable under Section 12 of POCSO Act, the
prosecution is bound to first prove that the victim was a child
as defined under POCSO Act, 2012. He contends that except a
school certificate marked as Ex.P.16, no documentary evidence
was produced to prove that the victim was a minor girl. The
accused recorded his statement contending that his mother and
PW.1 were representing Shri Dharmadevathe Svasahaya
Sangha. He claimed that in 2013 there was misunderstanding
between them since PW.1 had misused the funds of the Sangha
and that the mother of accused had reprimanded her. He
claimed that his mother had given a sum of Rs.15,000/- hand
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loan and when demanded the return of the money, she filed a
false complaint. He also claimed that when the girl was in 8th
Std., she had written love letters to him and that he and his
parents had informed PW.1 to advice the girl suitably. He
claimed that though these love letters were returned to PW.1,
the victim girl had again written letters to him. He marked
Exs.D.1 to D.4 which were love letters allegedly written by the
victim girl. He contends that PW.3 in her evidence deposed that
she was married 1 and ½ years prior to she deposing before
the Court which meant that she was married somewhere during
later part of the year 2014. He contends that if the victim girl
was 14 years as per Ex.P.16, it is highly unbelievable that she
was married off when she was hardly 15 years old. Therefore,
he contends that the victim girl was not a child as on the date
of the alleged offence and hence, the trial Court committed
error in convicting the accused for offence punishable under
Section 12 of POCSO Act, 2012.
8. Per contra, Sri.M.B.Gundawade, learned Addl. SPP
submitted that the victim and the accused were all staying in
the same lane. He contends that though information about the
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accused committing an offence punishable under Section 12 of
POCSO Act, 2012 was not immediately lodged, but PW.1, PW.3
and PW.4 deposed that the accused was sexually harassing the
victim girl by pelting stones, winking at her, etc. He therefore,
contends that the accused with a sexual intent had committed
a sexual offence and therefore, the trial Court was right in
convicting the accused for the offence punishable under Section
12 of POCSO Act, 2012. He also contends that Ex.P.16 is a
school record, which is maintained in the regular course and
therefore, a presumption is attached to the contents of Ex.P.16.
Thus, he contends that the accused was guilty of an offence
punishable under Section 12 of POCSO Act, 2012.
9. After hearing the learned counsel for the accused
and the learned Addl.SPP, the following point arises for
consideration:
Whether there was sufficient evidence before
the trial Court to convict the accused for offence
punishable under Section 12 of POCSO Act, 2012 ?
10. Though the accused was charged for offences
punishable under Sections 336, 354, 504, 506 of IPC, Sections
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3(1) (x) (xi) of SC/ST Act and Section 12 of POCSO Act, 2012,
the trial Court had convicted the accused for offence punishable
under Section 12 of POCSO Act, 2012. There is no appeal
preferred by the prosecution against the acquittal of the
accused against other offences.
11. An offence punishable under Section 12 of POCSO
Act, 2012 is stated to have been committed when a person with
a sexual intent has done the following acts:
"(i) utters any word or makes any sound, or makes any
gesture or exhibits any object or part of body with
the intention that such word or sound shall be heard,
or such gesture or object or part of body shall be
seen by the child; or
(ii) makes a child exhibit his body or any part of his body
so as it is seen by such person or any other person;
or
(iii) shows any object to a child in any form or media for
pornographic purposes; or
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through electronic,
digital or any other means; or
(v) threatens to use, in any form of media, a real or
fabricated depiction through electronic, film or digital
or any other mode, of any part of the body of the
child or the involvement of the child in a sexual act;
or
(vi) entices a child for pornographic purposes or gives
gratification therefore."
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12. In the instant case, PW.1 in her complaint, merely
stated that the accused was teasing her daughter. Neither the
prosecution nor PW.1 has elaborated as to what exactly were
the words used or acts done by the accused to verify whether it
falls within the meaning of sexual offence punishable under
Section 12 of POCSO Act, 2012. It is relevant to note that PW.1
did not lodge any complaint against the accused for the alleged
act of teasing the victim girl. However, after many days when
the accused allegedly pelted stones at the house of PW.1, the
instant complaint was filed. Therefore, there is a delay in
lodging a complaint for the offence punishable under Section 12
of POCSO Act, 2012. There is no palpable evidence to prove the
commission of offence punishable under Section 12 of POCSO
Act, 2012. PW.3 in her evidence tried to improve the case by
contending that the accused was winking at her, make signs,
pelting stones, etc. This however was not mentioned in her
complaint at Ex.P.1 or in her evidence before the Court.
Therefore, it was not proper to invoke Section 12 of POCSO
Act, 2012 in the facts and circumstances of the case. The trial
Court has blindly accepted the evidence of PW.3 to convict the
accused for an offence punishable under Section 12 of POCSO
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Act, 2012. This apart, no credible evidence was produced
before the Court to establish that PW.3 was a child as defined
under the POCSO Act, 2012. The procedure for determination
of age by the Special Court is set out in Section 34 of the Act,
2012. It was incumbent upon the Special Court to determine
the age of the child as provided under Section 94 of the
Juvenile Justice Act, more particularly in the light of the
evidence adduced by the victim girl that she was married 1½
years prior to she recording her evidence before the trial Court.
The entries in the records maintained at a school are not
conclusive proof to establish the age of the victim girl. The
prosecution ought to have been taken sufficient steps to prove
the age of the victim girl which unfortunately is not done in the
instant case.
13. In view of the above, the prosecution has miserably
failed to prove that the victim girl was a child as on the date of
the alleged offence. This apart, the offence that was allegedly
committed by the accused on 30.11.2013 had nothing to do
with the offence punishable under Section 12 of POCSO Act,
2012. The delay in lodging the complaint for the alleged offence
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punishable under Section 12 of POCSO Act, 2012 is fatal to the
case of the prosecution and hence, the judgment of the trial
Court convicting the accused for offence punishable under
Section 12 of POCSO Act, 2012 is improper and deserves to be
set-aside.
14. In view of the above, the point for consideration
framed by this Court is answered in favour of the accused and
it is held there was no sufficient material before the Court to
convict the accused for an offence punishable under Section 12
of POCSO Act, 2012 and thus, the following:
ORDER
(i) The criminal appeal is allowed.
(ii) The impugned judgment of conviction of the
accused for offence punishable under Section
12 of POCSO Act, 2012 and the consequent
sentence imposed on the accused by the trial
Court in Spl.C.No.35/2014 is set-aside and
the accused is acquitted of the offence
punishable under Section 12 of POCSO Act,
2012.
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Any bail bonds furnished by the accused shall stand
discharged.
Sd/-
(R.NATARAJ)
JUDGE
RH
Ct:vh
