Karnataka High Court

Praveen S/O Laxman Shelavadi vs The State Of Karnataka on 6 June, 2025

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                                                            CRL.A No. 100081 of 2017


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                         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.100081 OF 2017 (C)

                      BETWEEN:

                      PRAVEEN S/O. LAXMAN SHELAVADI
                      AGE: 20 YEARS, OCC: COOLIE,
                      R/O: BELAHAAR, TQ: NAVALGUND,
                      DIST: DHARWAD.
                                                                         ...APPELLANT
                      (BY SRI. T.R.PATIL, ADVOCATE)

                      AND:

                      THE STATE OF KARNATAKA
                      BY ANNIGERI POLICE, R/BY S.P.P.,
                      HIGH COURT OF KARNATAKA,
                      BENCH DHARWAD.
                                                                       ...RESPONDENT
Digitally signed by
MOHANKUMAR B
                      (BY SRI. M.B.GUNDAWADE, ADDL. SPP)
SHELAR
Location: HIGH
COURT OF                    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
KARNATKA
DHARWAD               CRPC SEEKING TO CALL FOR THE RECORDS IN SPL.SC.NO.39/2015
BENCH
Date: 2025.06.19      FROM THE FILE OF II ADDL. DISTRICT AND SESSIONS JUDGE AND
14:54:59 +0530
                      SPECIAL JUDGE, DHARWAD AND SET ASIDE THE JUDGMENT DATED
                      18.02.2017 PASSED IN SPL.SC.NO.39/2015 CONVICTING THE
                      APPELLANT/ACCUSED FOR THE OFFENCE UNDER SECTION 12 OF
                      POCSO ACT 2012 AND SENTENCING HIM TO UNDERGO
                      IMPRISONMENT FOR A PERIOD SIX MONTHS AND TO PAY FINE OF
                      RS.5,000/- (RUPEES FIVE THOUSAND ONLY) AND IN CASE OF
                      DEFAULT OF PAYMENT OF FINE, HE SHALL SUFFER FURTHER SIMPLE
                      IMPRISONMENT FOR A PERIOD OF ONE MONTH, FOR THE SAID
                      OFENCE AND ACQUIT THE APPELLANT OF THE OFFENCE WITH
                      WHICH HE HAS BEEN CONVICTED AND SENTENCED, IN THE
                      INTEREST OF JUSTICE AND EQUITY.

                            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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                                             NC: 2025:KHC-D:7404
                                      CRL.A No. 100081 of 2017


HC-KAR



                         ORAL JUDGMENT

The accused in Spl.S.C.No.39/2015 on the file of the II

Additional District and Sessions Judge and Special Judge,

Dharwad (hereinafter referred to as the 'trial Court' for short)

has filed this appeal challenging his conviction for the offence

punishable under Section 12 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter referred to as 'the

POCSO Act' for short).

2. The case of the prosecution was that PW.1 informed

the respondent in writing on 08.04.2015 that on 06.03.2015, at

about 08:30 a.m. when the victim was on her way to attend

nature call, the accused held her and tried to drag her. It is

alleged that the residents of the village extricated the victim

from the clutches of the accused. He therefore requested the

respondent to initiate suitable action against the accused.

Based on this information, the respondent-Police registered FIR

in Crime No.37/2015 for offences punishable under Sections

323, 354B and 509 of IPC and took up investigation. The

respondent-Police recorded the statement of the complainant,

the victim, other residents of the village as well as the relatives

of the victim and PW.7-Head Master of the school where the

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victim studied. The respondent then laid a charge sheet for the

offences punishable under Sections 323, 354B, 509 of IPC and

Sections 8 and 12 of the POCSO Act. The accused obtained

anticipatory bail. Upon his appearance before the trial Court,

the accused was charged for offence punishable under Sections

8 & 12 of POCSO Act. The accused pleaded not guilty and

claimed to be tried.

3. In order to prove the charge, the prosecution

examined the complainant as PW.1. He in his cross-

examination deposed that the accused and the victim were in

love with each other and that the marriage of the victim was

fixed with a resident of Javoor village. He also admitted that

the friend of the accused telephoned the people at Javoor and

informed accused's love with victim and as a result of which,

the marriage was cancelled.

4. The victim was examined as PW.2. She too

accepted that her marriage was fixed with a resident of Javoor

village and that she was of marriageable age. This witness

however, denied that the accused had telephoned the people at

Javoor and had disclosed his love for the victim and as a result

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of which, her marriage was broken. However, she admitted that

the family at Javoor had accepted that they had received a

telephone call from the accused. She voluntarily stated that the

accused has telephoned the people at Javoor village as a result

of which her marriage was cancelled. She also deposed that the

complaint was lodged on the next day of the incident. She also

deposed that she did not go to the Police Station after the

complaint was lodged.

5. The prosecution examined PW.3, one of the persons

who had intervened and released the victim from the clutches

of the accused. This witness also admitted the fact that the

victim was to be given in marriage to a family in Javoor. This

witness though supported the case of the prosecution, denied

the suggestions made to him that the victim and the accused

were in love with each other and that the marriage of the

victim was broken due to a call made by a friend of the accused

to the family at Javoor. This witness also stated that he visited

the Police Station, the next date after the complaint was lodged

and that a complaint was lodged after two or three days from

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the date of the incident. The prosecution also examined PW.4

who was the witness to the spot Mahazar.

6. PW.5 was the person who was accompanying PW.3

on the date of the incident and helped to release the victim

from the clutches of the accused. This witness supported the

case of the prosecution. He also admitted the fact that the

victim was agreed to be given in marriage to a family in Javoor

and that the same was cancelled. He also admitted that it was

the friend of the accused who had telephoned the family at

Javoor and had disclosed the accused's love for the victim and

as a result of which the marriage of the victim was cancelled.

He also deposed that the boy at Javoor had refused to marry

the victim in view of the call made by the friend of the accused.

7. Prosecution further examined PW.6 who was also

one of the persons who had extricated the victim from the

clutches of the accused. He also supported the case of the

prosecution and also admitted that the victim was to be given

in marriage to a family in Javoor and that the marriage was

broken due to a phone call made by the friend of the accused

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disclosing that the accused and the victim were in love with

each other.

8. The prosecution examined PW.7-Head Master of a

school where the victim was studying. He deposed that as per

the school records, the date of birth of the victim was

01.04.1998. Except this document, there was no material

placed on record to establish that the victim was a child as

defined under the POCSO Act, 2012.

9. The trial Court noticed that there was a delay of a

month in filing the complaint. However, it held that mere delay

in filing the complaint itself is not fatal to the prosecution. It

held that the complainant was an illiterate person and that after

the incident he met elderly persons in the village and later filed

a belated complaint. The trial Court proceeded on the

assumption that the victim was a minor and was studying in 9th

Std., in a rural place. The trial Court without considering the

fact that the marriage of the victim was fixed even before the

alleged incident happened, held that there was no substance in

the contention urged by the accused that the victim was more

than 18 years of age. It highly relied upon Ex.P.6 and held that

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the date of birth of the victim was 01.04.1998. The trial Court

therefore held that the prosecution had successfully proved the

guilt of the accused for the offence punishable under Section 12

of POCSO Act, but held that the prosecution had failed to prove

the offence punishable under Section 8 of POCSO Act.

Consequently, it convicted the accused for offence punishable

under Section 12 of POCSO Act and sentenced him to undergo

simple imprisonment for a period of six months and to pay a

fine of Rs.5,000/-, in case of default in payment of fine, the

accused was to suffer further simple imprisonment for a period

of one month. Being aggrieved by the said judgment of

conviction, the accused is before this Court.

10. (i) Sri.T.R.Patil, learned counsel for the accused

contended that the accused and the victim were in love with

each other and that it is not as if that the accused had known

the victim for the first time or that the accused had attempted

to molest or outrage the modesty of the victim.

(ii) He contends that the victim was to be given in

marriage to a person from Javoor village even before the

alleged incident had taken place. He therefore contends that

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even as per the understanding of PW.1, the victim was of

marriageable age.

(iii) He contends that the fact that the accused and the

victim were in love with each other is established beyond doubt

from the evidence of PW.1 and other witnesses who admitted

that it was the friend of the accused who had telephoned the

people at Javoor and had disclosed to them about the love that

the accused had towards the victim. Many of the prosecution

witnesses have admitted that due to this telephone call, the

marriage of the victim was cancelled. He therefore contends

that the accused was not complicit for an offence punishable

under Section 12 of POCSO Act. Besides this, he contends that

except Ex.P.6 which is a school record, no document is placed

on record to establish that the age of the victim was less than

18 years. He contends that as per the Ex.P.6, the date of birth

of the victim was 01.04.1998. He contends that if the same is

accepted, the date of the alleged offence is 06.03.2015. He

contends that even going by these dates, the age of the victim

was more than 17 years. He contends that in the absence of

any clinching material to establish the age of the victim, the

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trial Court committed an error in relying upon the school record

to arrive at a conclusion that the victim was less than 18 years

of age. He contends that the trial Court must have ascertained

whether the victim was a child in the manner prescribed under

Section 34 of POCSO Act and Section 94 of Juvenile Justice Act.

In support of his contention, he relies upon the judgment of a

Co-ordinate Bench of this Court in YUVARAJA NAIKA vs.

STATE OF KARNATAKA AND ANOTHER (in Crl.A.1835/2019)

and contends that this Court categorically held that mere entry

in school records is not corroborative evidence of the age of the

victim. He therefore contends that the prosecution has failed to

prove that the offence punishable under Section 12 of POCSO

Act was committed.

11. Learned Addl. SPP on the other hand contended

that the prosecution was able to establish the commission of

the crime by the accused. He submits that PW.3 and PW.5 have

supported the case of the prosecution and have spoken about

the incident that happened on 06.03.2015. He therefore

contends that the prosecution proved the commission of the

offences on the said day. Insofar as the provisions of the

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POCSO Act attracted to the incident are concerned, he contends

that PW.7 has categorically stated that the date of birth of the

victim as registered in the school records is 01.04.1998. Thus,

he contends that the victim was less than 18 years as on the

date of the incident and hence, the provisions of POCSO Act

was rightly pressed into service against the accused.

12. I have considered the submissions made by the

learned counsel for the accused and the learned Addl. SPP and

also perused the records of the trial Court as well as

judgments.

13. The only point that arises for consideration before

this Court is "whether there was sufficient evidence to convict

the appellant for offence punishable under Section 12 of the

POCSO Act?"

14. A perusal of the evidence of the prosecution shows

that the victim was known to the accused. It also appears that

even before the date of the incident, the victim was proposed

to be married to a boy from Javoor village. It is also apparent

that the proposed marriage of the victim was cancelled since

one of the friends of the accused had telephoned the boy at

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Javoor village and disclosed the relationship that the victim had

with the accused. It is therefore on record that the victim and

the accused were known to each other for several days. Having

regard to the fact that parents of the victim had admitted that

the victim was sought to be married off, it is quite possible that

the victim was of marriageable age. There is no medical

evidence on record such as an ossification test to establish the

age of the victim. The only evidence is the school record which

indicates the date of birth of the victim as 01.04.1998. As

rightly contended by the learned counsel for the accused, the

mere mentioning of the date of birth in the school records,

would not be sufficient to prove the age of the victim. It was

incumbent upon the prosecution to establish beyond doubt the

age of the victim to attract the provisions of POCSO Act. A child

is defined under Section 2(d) of the POCSO Act which read as

follows:

"Section 2(d) "child" means any person below the age of eighteen years."

15. Therefore in order to affirmatively prove that the

victim was less than 18 years, the prosecution must have taken

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sufficient measures, which in the case on hand, is not done. At

least the trial Court must have taken steps to ascertain the age

of the victim as provided under Section 34 of POCSO Act, 2012

and Section 94 of Juvenile Justice Act. In similar circumstances,

the Hon'ble Apex Court in P.YUVAPRAKASH vs. STATE BY

INSPECTOR OF POLICE, 2023 INSC 626 held as follows:

"19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate"

from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect

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and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X- Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."

Therefore, the prosecution has failed to establish the offence punishable under Section 12 of the POCSO Act.

16. This apart, the statement of the victim which was to

be recorded in accordance with Section 24 of the POCSO Act,

2012 was not done. On the contrary, the statement of the

victim was recorded before the Station House Officer, who also

filed the charge sheet. Under the circumstances, the entire

procedure adopted by the prosecution falls foul of the

procedure prescribed. Therefore, the impugned judgment

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passed by the trial Court convicting the petitioner for an offence