Karnataka High Court
Sri. Ramu vs State Of Karnataka on 12 June, 2025
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CRL.A No. 1246 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1246 OF 2020 (C)
BETWEEN:
SRI. RAMU
AGED ABOUT 29 YEARS,
S/O MUNISWAMY
R/AT GORLACHINNEPALLI VILLAGE,
BETHAMANGALA HOBLI,
BANGARPET TALUK, K.G.F.
KOLAR DISTRICT - 563 113
...APPELLANT
(BY SRI. VEERANNA G TIGADI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY PSI
BETHAMANGALA POLICE STATION
BANGARPET TALUK
KOLAR DISTRICT - 563 116
Digitally signed
by NANDINI B REPRESENTED BY STATE
G PUBLIC PROSECUTOR,
Location: High HIGH COURT OF KARNATAKA
Court of BENGALURU - 560 001
Karnataka
2. SMT. CHAMUNDI
AGED ABOUT 39 YEARS,
W/O VENKATARAM
R/AT GORLACHINNEPALLI VILLAGE,
BETHAMANGALA HOBLI, K.G.F.,
KOLAR DISTRICT - 563 116.
...RESPONDENTS
(BY SMT. RASHMI JADHAV, ADDL. SPP, FOR R1
SMT. SOWMYA SRIDHAR, ADVOCATE FOR R2 (AB))
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 27.01.2020 PASSED BY
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CRL.A No. 1246 of 2020
HC-KAR
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR IN
S.C.NO.1/2019 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 376 OF IPC AND SECTION 6 OF POCSO ACT. THE
ACCUSED IS SENTENCED TO UNDERGO S.I FOR A PERIOD OF SEVEN
YEARS WITH FINE OF RS.5000/- FOR THE OFFENCE P/U/S 376 OF
IPC IN CASE OF DEFAULT OF PAYMENT OF FINE, HE SHALL
UNDERGO FURTHER IMPRISONMENT OF ONE MONTH. FURTHER THE
ACCUSED IS SENTENCED TO UNDERGO S.I FOR A PERIOD OF 20
YEARS WITH FINE OF RS.10,000/- FOR THE OFFENCE P/U/S 6 OF
POCSO ACT IN CASE OF DEFAULT OF PAYMENT OF FINE, HE SHALL
UNDERGO FURTHER IMPRISONMENT OF ONE MONTH. THE
SENTENCES SHALL RUN CONCURRENTLY. AND THE APPELLANT
PRAYS THAT HE BE ACQUITTED.
THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The accused in SC No. 1 of 2019 on the file of the learned
II Additional District and Sessions Judge at Kolar, is impugning
the judgment of conviction and order of sentence dated
27.01.2020, convicting him for the offence punishable under
Section 376 of Indian Penal Code (for short, 'IPC'), and under
Section 6 of the Protection of Children from Sexual Offences Act
(for short, the 'POCSO Act'), sentencing him to undergo simple
imprisonment for a period of 7 years with fine of Rs.5,000/- for
the offence punishable under Section 376 of IPC and sentenced
him to undergo simple imprisonment for a period of 20 years
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with fine of Rs.10,000/- for the offence punishable under
Section 6 of POCSO Act, with default sentences.
2. Brief facts of the case are that, PW1, the mother of the
victim girl has filed first information as per Ex.P1 against the
accused, contending that on 02.11.2018 at 04.00 p.m., when
PW.2-victim girl aged 12 years, had gone to his lands, accused
No. 1 came and removed her clothes, tried to commit rape.
Further two months earlier to the said incident when the victim
girl had gone to bring haystack, the accused had pushed her to
the ground and committed rape, punishable under Section 376
of IPC, and that by having sexual intercourse with the minor
girl, the accused has committed the offence of aggravated
penetrative sexual assault punishable under Section 6 of
POCSO Act. The police, after registering the FIR against the
accused, conducted investigation, and subjected the victim and
the accused for medical examination. Statement of the victim
girl was recorded under Section 164 of Cr.PC as per Exhibit P10
and after completing the investigation, the charge sheet came
to be filed.
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3. The Trial Court took cognizance of the offence and
summoned the accused. The accused appeared before the Trial
Court and pleaded not guilty. The prosecution examined PWs.1
to 10, got marked Exhibits P1 to 20 and identified material
objects as MOs.1 to 9 in support of its contention. The accused
has denied all the incriminating materials available on record,
but has not chosen to lead any evidence in support of his
defence. The Trial Court, after taking into consideration all
these materials on record, came to the conclusion that the
prosecution is successful in proving the guilt of the accused
beyond reasonable doubt and convicted and sentenced the
accused as stated above. Being aggrieved by the same, the
accused is before this court.
4. Heard Sri.Veeranna G. Tigadi, learned for the
appellant and Smt.Rashmi Jadhav, learned Additional SPP for
respondent No.1-State and Smt.Sowmya Sridhar, learned
counsel for respondent No.2. Perused the materials including
the Trial Court records.
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5. In light of the rival contentions urged by learned
Counsel for both parties, the point that would arise for my
consideration is as under:
"Whether the appellant has made out any
grounds to interfere with the impugned judgment
of conviction and order of sentence passed by the
Trial Court?"
My answer to the above point is 'partly in the affirmative'
for the following:
REASONS
6. It is the contention of the prosecution that on
02.11.2018, the accused had tried to commit rape on the minor
girl, aged 12 years by removing her clothes, and two months
earlier to the said incident, the accused had committed rape on
her and thereby he has committed the offence punishable
under Section 376 of IPC and under Section 6 of the POCSO
Act. To prove its contention, the prosecution examined PW.1,
the mother of the victim girl, the informant, who lodged the
first information as per Ex.P1. The mother does not say
anything about the earlier incident where the accused has
committed rape on the victim girl. Neither it is stated in the
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first information Ex.P1. She states that she had seen the
incident on 02.11.2018 where both the accused and the victim
were naked with the clothes thrown nearby. On seeing her
coming to the spot, the accused had ran away from the scene.
7. PW2 is the victim girl. She has deposed before the
Court that the accused is her uncle and he spoiled her. The
witness also stated that earlier to the said incident when she
had gone to fetch haystack, he had committed rape on her. No
details were elicited by the learned Prosecutor from the victim
regarding commission of the offence on two different occasions.
8. It is pertinent to note that the doctor who examined
the victim is examined as PW10. She has categorically stated in
her evidence that she had not seen the signs of recent sexual
assault or rape on the victim girl. Since there were injuries on
the body of the victim, she is of the opinion that there may be
an attempt to commit rape. The witness states that if the
sexual assault is committed within 24 hours, she will consider it
as recent sexual assault.
9. Exhibits P.19 and 20 are the medical records issued
by PW10. As per Exhibit P19, the certificate of medical
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examination of the victim of rape, she was examined on the
very same day i.e. on 02.11.2018 at 08.42 p.m. As per the
case made out by the prosecution, the incident had occurred on
02.11.2018 at about 4.00 p.m. As per Exhibit P20, the final
opinion of the Medical Officer-PW10, there was no evidence of
recent sexual intercourse, but there is evidence of physical
assault. If at all then was penetrative sexual assault on the
victim just about 4-5 hours earlier to her examination,
definitely the medical officer could have referred to it as there
was recent sexual assault or rape.
10. When such a clear case is made out by the
prosecution itself, it cannot be said that the accused has
committed aggravated penetrative sexual assault either to
attract Section 376 of IPC or to attract Section 6 of POCSO Act.
To attract Section 376 of IPC, the ingredients of Section 375 of
IPC is required to be satisfied. The prosecution has led the
evidence in a shabby manner without any details or particulars.
Simply because the victim states that she was spoiled by the
accused, the same cannot be stretched to contend that the
prosecution has proved commission of rape by the accused,
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that too when the medical evidence is very clear that there was
no signs of recent sexual intercourse. Under such
circumstances, I am of the opinion that the accused is liable
for conviction under Section 376 of IPC.
11. Even though the prosecution is not successful in
making out a case for convicting the accused for the offence
under Section 6 of the POCSO Act, as the materials on record
do not fall under any of the clauses of Section 5 of POCSO Act,
however, it is sufficient to attract Section 7 of POCSO Act. The
victim refers to the act of the accused that he had touched her
private parts, breast, etc. Compelled with the evidence of the
informant, it could be concluded that the accused had
committed the offence under Section 7 of POCSO Act
punishable under Section 8, for which he is liable for conviction.
12. I have gone through the impugned judgment of
conviction and order of sentence. The first information does not
say that there was commission of rape or aggravated
penetrative sexual assault. The charge framed by the Trial
Court is for the offence of attempting to commit rape on the
victim girl. The medical evidence, both oral and documentary
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i.e. the evidence of PW10, and Exhibits P19 and 20 suggests
that there was only an attempt to commit rape, and there was
no complete act either to attract under Section 376 of IPC or
under Section 6 of the POCSO Act. Ignoring all these facts, the
Trial Court proceeded to convict the accused for the offence
punishable under Section 376 of IPC and under Section 6 of
POCSO Act.
13. The Trial Court has also ignored Section 42 of
POCSO Act which provides for alternative punishment. When
the offence under Section 376 and under the provisions of
POCSO Act are proved and the offender is found guilty of such
offences, he shall be liable for punishment either under IPC or
under POCSO Act considering the degree of punishment and to
impose the punishment which is greater in degree. The Trial
Court has lost sight of this provision of law.
14. It is also pertinent to note that even though the
Trial Court proceeded to convict the accused for the offence
under Section 6 of POCSO Act, it proceeded to sentence the
accused to undergo simple imprisonment for a period of 20
years. Whereas the punishment prescribed under Section 6 of
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POCSO Act is rigorous imprisonment which shall not be less
than 20 years. Therefore, I am of the opinion that the Trial
Court has not applied its mind either to the facts of the case or
to the provisions of law before proceeding to convict and
sentence the accused. Hence, the impugned judgment of
conviction and order of sentence calls for interference.
Accordingly, I answer above point partly in the affirmative and
I proceed to pass the following:
ORDER
i. The appeal is allowed in part.
ii. The judgment of conviction and order of
sentence dated 27.01.2020 passed in
S.C.No.1/2019 by the II Additional Sessions
Judge at Kolar, against the accused for the
offence punishable under 376 of IPC and
under Section 6 of POCSO Act, are hereby
set aside.
iii. The accused is acquitted for the offence
punishable under Section 376 of IPC and
under Section 6 of POCSO Act. However, he
is convicted for the offence punishable
under Section 8 of POCSO Act and he is
sentenced to undergo imprisonment for a
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period of 5 years with fine of Rs.10,000/-.
In case of default of payment of fine, he
shall undergo imprisonment for a period of
1 year.
iv. It is stated that the accused was
apprehended on 03.11.2018 and since then
he is in judicial custody. Prima-facie it
appears that he has already served the
sentence of 5 years. However, he is liable to
pay fine.
Registry to communicate this order to the Chief
Superintendent, Central Jail, Parappana Agrahara, Bengaluru
for information, and for needful action and send back the
original records along with the copy of this judgment to the
Trial Court, for needful action.
Sd/-
(M G UMA)
JUDGE
MKM
