Karnataka High Court

Ganapati S/O Tukaram Metre vs The State Of Karnataka on 9 June, 2025

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                      CRL.A No. 200244 of 2021


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                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                               DATED THIS THE 9TH DAY OF JUNE, 2025

                                             PRESENT
                           THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                               AND
                               THE HON'BLE Mrs JUSTICE K S HEMALEKHA

                            CRIMINAL APPEAL NO. 200244 OF 2021
                                  (374(Cr.PC)/415(BNSS)
                      BETWEEN:

                      GANAPATI S/O TUKARAM METRE
                      AGE. 40 YEARS,
                      OCC. COOLIE, R/O HILALPUR VILLAGE,
                      TQ HUMNABAD, NOW AT KAPANOOR,
                      KALABURAGI-585102.
                                                                     ...APPELLANT
                      (BY SRI. RAJESH DODDAMANI,ADVOCATE)
Digitally signed by
BASALINGAPPA
SHIVARAJ              AND:
DHUTTARGAON
Location: HIGH
COURT OF              1.   THE STATE OF KARNATAKA
KARNATAKA
                           THROUGH KALABURAGI GRAMEEN POLICE STATION,
                           NOW REPRESENTED BY
                           THE ADDITIONAL STATE PUBLIC PROSECUTOR
                           HIGH COURT OF KARNATAKA
                           KALABURAGI BENCH-585102.

                      2.   SMT. CHANNAMMA
                           W/O. BASAVARAJ HANUMGONDA
                           AGE:40 YEARS,
                           R/O. DANOTTI VILALGE,
                           TQ:CHITTAPUR,
                           DIST:KALABURAGI
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                                              CRL.A No. 200244 of 2021


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    NOW AT KAPNOOR INDUSTRIAL AREA,
    KALABURAGI.
                                          ...RESPONDENTS
(BY SRI.SIDDALING P. PATIL,ADDL. SPP FOR R1;
SRI. SUDHEER KULKARNI, ADV. FOR R2)

     THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO CALL FOR RECORDS AND EXAMINE THE RECORDS IN
SPECIAL CASE POCSO NO.60/2017 AND SET ASIDE THE
JUDGMENT AND SENTENCE PASSED BY THE LEARNED II
ADDITIONAL SESSIONS JUDGE KALABURAGI FOR CONVICTING
THE APPELLANT BY ITS JUDGMENT DATED 08.11.2019 PASSED
IN SPECIAL CASE POCSO NO.60/2017.

    THIS APPEAL IS COMING ON FOR 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)

Assailing the judgment and order dated 08.11.2019

passed by the Court of II Additional Sessions Judge,

Kalaburagi, in Special Case (POCSO) No.60/2017, accused has

preferred this appeal.

2. Vide impugned judgment, the Trial Court has

convicted the accused/appellant for offences punishable under

Section 376(2)(n) of IPC read with Section 4 of the POCSO Act,

2012.

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3. The accused has been sentenced to undergo

rigorous imprisonment for life and to pay a fine of

Rs.1,00,000/- and to further undergo simple imprisonment for

a period of two years, in default of payment of the fine amount.

4. We have heard the learned counsel for the

appellant, learned Additional SPP for the state and the learned

Amicus Curiae for respondent No.2 - de-facto complainant.

5. Perused the evidence and materials on record.

6. Briefly stated, case of the prosecution is that,

victim's father was working in the plastic factory of one Arif

Sheth situated at Kapanoor industrial area. On 24.09.2017, at

about 9 A.M., he went to the factory for work. At about 2.30

P.M., victim girl, a minor aged about 16 years was sent by her

mother to the factory to give lunch box to her father. At that

time, the accused who was also working in the said factory

committed forcible penetrative sexual assault on the victim and

thereby committed the charged offences.

7. Law was set into motion by the victim's mother.

PW9 - PSI working at Kalaburagi Rural Police Station, on

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receiving her complaint/Ex.P5, registered a case and forwarded

the FIR - Ex.P14 to the jurisdictional Court. The victim's

statement was recorded and she was sent for medical

examination. The investigation was taken over by PW8 - CPI.

8. The accused was arrested and subjected to medical

examination. The further statements of the victim and the

complainant were recorded. Statement of the victim was also

recorded under Section 164 of Cr.PC by the learned Magistrate.

The seized articles were sent for FSL examination. On

completion of investigation, charge sheet was filed.

9. The charges were framed against the accused for

the offences punishable under Section 376(2)(n) of IPC and

Section 4 of the POCSO Act, 2012.

10. In order to establish the charges, the prosecution

got examined PW1 to PW9 and Exs.P1 to P14. The accused

denied all the incriminate evidence appeared against him,

however did not choose to lead any evidence on his behalf.

11. Learned Sessions Judge, appreciating the oral and

documentary evidence on record, vide impugned judgment

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convicted and sentenced the accused for the charges leveled

against him, as noted supra.

12. Assailing the impugned judgment, learned counsel

for the appellant contended that the Trial Court has not taken

into consideration the contradictions and infirmities appeared in

the evidence of the victim and erroneously convicted the

accused, which has resulted in miscarriage of justice. He would

contend that the father of the victim and one Shashikanth, who

according to the prosecution rushed to the spot immediately,

are not examined and complainant is a hearsay witness. He

contended that medical examination report of the victim, as

well as the FSL report does not corroborate the version of the

victim and does not support the prosecution case and

therefore, a reasonable doubt arises as to whether the victim

was subjected to penetrative sexual assault, as claimed by the

prosecution. He further contended that neither the evidence of

the victim nor the evidence of PW2 or PW3 would clearly

indicate or establish that there was penetrative sexual assault

on the victim and therefore, the accused is entitled for benefit

of doubt. He, therefore sought to allow the appeal and set

aside the impugned judgment passed by the Trial Court.

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13. Learned Additional SPP, on the other hand

contended that the victim has categorically supported the case

of prosecution and her evidence is further supported by the

evidence of PW2 and PW3. He contended that without any

loss of time the complaint was lodged and the victim has given

history before the Doctor narrating the incident. He contended

that PW3 is an independent witness, whose evidence lend

support to the prosecution version and corroborates the

evidence of PW1 and therefore, the Trial Court has rightly

convicted the accused for the charged offences. He contended

that the reasons assigned by the Trial Court are in accordance

with law and accordingly sought to dismiss the appeal.

14. Learned Amicus curiae appearing for respondent

No.2 has contended that victim is a minor aged between 14 to

15 years, which is evident from the Birth Certificate as well as

the medical opinion. She was subjected to penetrative sexual

assault by the accused. There is no delay in lodging the

complaint and the victim has supported the case of prosecution

and withstood the rigor of cross examination and her evidence

is corroborated by the evidence of her mother and therefore,

the Trial Court has rightly convicted the accused. He

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contended that there is no illegality committed by the learned

Sessions Judge and therefore, sought to dismiss the appeal.

15. As per prosecution, the victim was a minor at the

time of incident. To prove that she was a minor, the

prosecution has got marked Ex.P12-the date of birth certificate

of the victim issued by the Head Master of the Government

Higher Primary School, Kapanoor, Kalaburagi, where the victim

studied from 4th standard to 7th standard. As per Ex.P12, date

birth of the victim is 07.06.2004. Further, the evidence of the

doctor-PW5 goes to show that as per radiologist and dentist,

age of the victim was about 14 to 15 years. From this, we

have no hesitation to hold that the victim was a minor at the

time of incident.

16. The incident is alleged to have been taken place at

about 02.55 to 3.00 P.M., on 24.09.2017, when the victim girl

had been to the plastic factory, where her father was working.

According to the prosecution, her mother - PW2 sent her to the

factory for giving lunch box to her father. It is alleged that the

accused who was also working in the said factory, forcibly held

the victim, closed her mouth, removed her clothes and

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committed penetrative sexual assault. As per Ex.P5, when the

victim screamed, her father, one Shashikanth, the owner of the

factory by name Ariff and one boy came to the spot and at that

time, the accused left the victim.

17. The complainant is examined as PW2. She has

stated that the victim has studied upto 7th Standard. Her

husband was going to the factory in the morning at 7 A.M. and

was returning at 6 P.M. On the date of incident, her daughter

carried the lunch box to her husband. At about 2 p.m., many

people had gathered near the factory. She also went to the

spot and saw the victim crying and at that time her husband,

CW4 and CW6 came there. On enquiry, she was informed by

her daughter that when her father had gone to attend the call

of nature, the accused asked her to keep the lunch box in a

corner and then closed her mouth, removed her clothes and

committed rape on her against her will.

18. PW2 has stated that they went to the Police Station

along with the victim, wherein police recorded her statement as

per Ex.P5.

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19. The victim girl is examined as PW1. She has stated

that, when she went to the factory to give lunch box to her

father, accused asked her to sit on the steps and then took her

inside the room, removed her clothes and spoiled her. She has

stated that when the accused took her inside, he held her

mouth and she struggled and resisted and when he was

spoiling her, she screamed and that time her father,

Shashikanth and two others came to the spot. On seeing

them, the accused ran away from the spot.

20. In Ex.P5 it is stated that, one Shashikanth, Ariff

i.e., owner of the factory, victim's father and a boy came to the

spot on hearing the screaming of the victim. The prosecution

has examined the owner of the factory - Ariff as PW3. In his

evidence, he has deposed that on 24.09.2017, as it was

Sunday they worked till 2' o clock. The victim brought the

lunch to CW3 i.e., her father. All of them had lunch together

and went for Tea. After having tea, himself and the accused as

well as CW3 came back to the factory. While coming back,

CW3 went to attend the first call of nature. Accused went

ahead towards the factory. After payment of the bill, CW3

came towards the factory in a hurried manner and so he

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followed him. They found the accused and the victim. The

accused was trying to adjust his dress and the dress of the

victim was scattered. On enquiry, the victim informed that

accused raped her. He shouted at the accused, but the

accused did not reply and then he advised CW3 to lodge a

complaint. Later, victim's mother and sister also came to the

spot.

21. From the above evidence on record, it can be

gathered that, victim girl had been to the plastic factory where

her father was working, to give the lunch box. The accused

was also present in the said factory. The accused has not

denied his presence in the factory at the relevant point of time,

in the cross examination of either PW1 or PW3.

22. The complaint was lodged by the mother-PW2 and

the same was registered by 7.35 P.M., on the very same day,

by PSI - PW9. It is alleged that, the accused removed victim's

clothes and committed forcible penetrative sexual assault on

her. A perusal of the evidence of PW3, who came to the spot

immediately after the incident and saw accused and victim

together, does not indicate that either the victim or the accused

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were without clothes. He has stated that the accused was

trying to make his dress correct and dress of the victim was

scattered. PW2 or PW3 have not specifically stated that when

victim's father and other witnesses came to the spot, they saw

victim or the accused without wearing any dress. As per the

cross examination of PW1, accused removed her pant and lifted

her top. This assumes importance, since, the clothes of the

victim were sent to FSL for examination of the presence of

Seminal Stains or Spermatozoa.

23. In the history furnished by the victim to the doctor,

she has not stated about the accused removing her clothes,

though she has stated that the accused attacked her and

committed forcible sexual intercourse. Hence, the FSL report

assumes importance.

24. As we have noted earlier, without any loss of time,

complaint was lodged on the same day as per Ex.P5. Victim

has deposed that she struggled and resisted, when accused

committed the act of rape. She was sent for medical

examination before PW5, working as Specialist in GGH,

Kalaburagi. PW5 has deposed that she found no external

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injuries on any parts of victim's body. She collected her

Cervical and Vaginal Swab and smear and clothes for FSL

examination. She issued a preliminary medical certificate

marked as Ex.P9. After the receipt of FSL report, issued the

final report as per Ex.P11. The FSL report is marked as Ex.P10.

As per final opinion at Ex.P11, PW5 has opined that there is no

evidence of recent sexual intercourse.

25. From the evidence of PW5, it can be seen that

victim was examined by her on the very same day at about

10.50 p.m., she collected the clothes of the victim etc., and

sent for FSL examination. She has furnished the final opinion

as per Ex.P11 stating that there is no evidence of recent sexual

intercourse.

26. PW5 has not noticed any external injuries on the

private part of the victim. The clothes of the victim were

collected and sent for FSL examination. As per FSL

report-Ex.P10, Seminal Stain was not detected in the articles

sent for FSL examination. Further, spermatozoa was not

detected in article 1(b) i.e., cervical smear and article 2(b) i.e.,

vaginal smear.

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27. The Trial Court mainly relying on the evidence of

the victim has come to the conclusion that, accused taking

undue advantage of the absence of her father and others,

committed rape inspite of her resistance. However, the Trial

Court failed to appreciate that the victim was examined by the

doctor immediately after the incident and the doctor has opined

that there is no evidence of recent sexual assault on the victim.

Further, as per FSL report, the articles sent for examination did

not find the presence of Seminal Stains or Spermatozoa.

28. It is held by the Hon'ble Apex Court in Sham Singh

Vs. State of Haryana reported in (2018) 18 SCC 34 that,

"testimony of the victim in rape cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable."

In 'Krishan Kumar Malik Vs. State of Haryana',

reported in (2011) 7 SCC 130, the Hon'ble Apex Court held,

'to hold an accused guilty for commission of an offence of rape,

the solitary evidence of the prosecutrix is sufficient provided the

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same inspires confidence and appears to be absolutely

trustworthy, unblemished and should be of sterling quality'.

29. In the instance case, we find that the testimony of

the victim is not reliable to hold that she was subjected to

penetrative sexual assault. The manner in which the alleged

incident has taken place as per the version of the victim is not

believable. Her evidence to the extent that she was subjected

to forcible penetrative sexual assault is not supported by

medical evidence. However, we find that her evidence and

other materials on record would clearly establish that she was

subjected to sexual assault by the accused, which offence

would attract Section 7 punishable under Section 8 of the

POCSO Act, 2012, The sentence prescribed for the said offence

is imprisonment for not less than three years, but which may

extend upto five years with fine.

30. The appellant/accused is in custody from

25.09.2017. He has therefore undergone the maximum

sentence which could be imposed for the offence under Section

8 of the POCSO Act, 2012.

31. For the forgoing reasons, we pass the following:

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                         ORDER


     i)     The appeal is partly allowed;


     ii)    The judgment and order dated 08.11.2019

passed by the II Additional Sessions Judge,

Kalaburagi in Special case (POSCO)

No.60/2017 in so far as convicting and

sentencing the accused/appellant for the

offence punishable under Section 376(2)(n) of

IPC and Section 4 of the POCSO Act, 2012 is

set aside.

iii) Appellant/accused is convicted for the offence

under Section 7 punishable under Section 8 of

the POCSO Act, 2012.

iv) He is sentenced to undergo rigorous

imprisonment for a period of five years and to

pay fine of Rs.10,000/- and in default of

payment of fine amount, he shall undergo

simple imprisonment for a period of six

months.

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v) Accused having already undergone the entire

sentence including default sentence, he shall

be set at liberty, if not required in any other

case.

vi) The order of the Trial Court issuing direction to

the DLSA for payment of compensation to the

victim is unaltered.

vii) In the event of deposit of the fine amount by

the accused, the entire amount shall be