Karnataka High Court
Jagadish Kumar @ Jagadish vs The State on 12 June, 2025
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CRL.A No. 761 of 2020
C/W CRL.A No. 1990 of 2019
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. 761 OF 2020 (C)
C/W
CRIMINAL APPEAL NO. 1990 OF 2019 (C)
IN CRL.A NO. 761/2020
BETWEEN:
JAGADISH KUMAR @ JAGADISH
S/O LATE RAVI,
AGED ABOUT 21 YEARS,
R/AT 6TH CROSS,
SHAKAMBARI NAGAR,
J.P. NAGAR, 1ST STAGE,
BENGALURU - 560 078
...APPELLANT
(BY SMT. BUDRUNNISA, ADVOCATE)
AND:
THE STATE,
Digitally signed REPRESENTED BY
by SWAPNA V J.P. NAGAR POLICE STATION,
Location: High STATE PUBLIC PROSECUTOR,
Court of HIGH COURT OF KARNATAKA,
Karnataka
BANGALORE - 560 001
...RESPONDENT
(BY SRI. HARISH GANAPATHY, HCGP)
THIS CRL.A IS FILED U/S 374(2) OF CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 19.11.2019 AND
ORDER OF SENTENCE DATED 22.11.2019 PASSED BY THE LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE, BNEGALURU IN S.C.NO.1252/2013 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 363, 366, 506
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CRL.A No. 761 of 2020
C/W CRL.A No. 1990 of 2019
HC-KAR
R/W 34 OF IPC, SECTION 376 OF IPC AND SECTION 4 OF POCSO
ACT AND ETC.,
IN CRL.A NO. 1990/2019
BETWEEN:
JEEVAN @ S.J. SELLI,
S/O JOSEPH,
AGED ABOUT 24 YEARS,
R/AT 6TH CROSS,
SHAKAMBARI NAGAR,
J.P NAGAR, 1ST STAGE,
BENGALURU - 560 078
...APPELLANT
(BY SMT. BUDRUNNISA, ADVOCATE)
AND:
THE STATE BY,
J.P. NAGAR P.S, BENGALURU,
REPRESENTED BY
THE GOVERNMENT PLEADER,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001
...RESPONDENT
(BY SRI. HARISH GANAPATHY, HCGP)
THIS CRL.A IS FILED U/S 374(2) OF CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 19.11.2019 AND
ORDER OF SENTENCE DATED 22.11.2019 PASSED BY THE LXX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE, BNEGALURU IN S.C.NO.1252/2013 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 363, 366, 506
R/W 34 OF IPC AND ETC.,
THESE CRIMINAL APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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CRL.A No. 761 of 2020
C/W CRL.A No. 1990 of 2019
HC-KAR
COMMON ORAL JUDGMENT
The appellant in Crl.A.No.761/2020 being accused No.1
and the appellant in Crl.A.No.1990/2019 being accused No.2 in
S.C.No.1252/2013, on the file of the learned LXX Additional City
Civil & Sessions Judge & Special Judge, Bengaluru City (CCH-
71), are impugning the judgment of conviction dated
19.11.2019 and order of sentence dated 22.11.2019, convicting
them for the offence punishable under sections 363, 366, 506
r/w 34 of IPC and sentencing them to undergo rigorous
imprisonment for seven years with fine of Rs.3,000/- each, for
the offence punishable under Section 366 read with Section 34
of IPC; to undergo rigorous imprisonment for three years with
fine of Rs.2,000/- each, for the offence punishable under
Section 363 read with Section 34 of IPC; to undergo rigorous
imprisonment for one year with fine of Rs.1,000/- each, for the
offence punishable under Section 506 read with Section 34 of
IPC and convicting accused No.1 for the offence punishable
under Section 376 of IPC and under Section 4 of POCSO Act and
sentencing him to undergo rigorous imprisonment for a period of
10 years with the fine of Rs.5,000/-, for the offence punishable
under Section 376 of IPC; to undergo rigorous imprisonment for
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a period of 10 years with the fine of Rs.5,000/-, for the offence
punishable under Section 4 of POCSO Act, with default
sentences, while acquitting the accused for the offence under
Section 3(2)(v) of The Scheduled Case or Scheduled Tribe
(Prevention of Atrocities Act) (for short 'the SC & ST Act').
2. Brief facts of the case are that, PW1 being the
father of the victim girl lodged the first information as per
Ex.P1 stating that his minor daughter was found missing.
During investigation, the minor daughter was traced. Accused
Nos.1 and 2 were apprehended. After investigation, the charge
sheet came to be filed against accused Nos.1 to 3 for the
aforesaid offences. Accused No.3 was absconding and split up
charge sheet came to be filed against him.
3. Accused Nos.1 and 2 have appeared before the Trial
Court and denied the charges leveled against them. Prosecution
examined PWs 1 to 16, got marked Ex.P1 to 31 and identified
MOs.1 to 7 in support of its contention. The accused have
denied all the incriminating materials available on record, but
have not led any evidence in support of their defence. The Trial
Court after taking into consideration all the materials on record
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came to the conclusion that accused No.1 kidnapped the victim
girl who is a minor, aged 12 years with the help of accused
No.2 and have criminally intimidated her. Accused No.1 took
the minor girl to various places from 17.07.2013 till 22.07.2013
and committed penetrative sexual assault and thereby, they
have committed the offences as stated above. Considering the
materials on record, the Trial Court convicted accused Nos.1
and 2 as stated above. Being aggrieved by the same accused
No.1 has preferred Crl.A.No.761/2020, and accused No.2 has
preferred Crl.A.No.1990/2019.
4. Heard Smt. Budrunnisa, learned counsel for the
appellants and Sri. Harish Ganapathy, learned High Court
Government Pleader for the respondent. Perused the materials
including the Trial Court records.
5. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would arise
for my consideration is:
"Whether the appellants have made out any
grounds to interfere with the impugned judgment
of conviction and order of sentence passed by the
Trial Court?"
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My answer to the above point is in 'Partly Affirmative' for
the following:
REASONS
6. It is the contention of the prosecution that accused
No.1, aged 21 years, kidnapped the minor girl with the help of
accused No.2 for the purpose of marrying her and took her to
various places by threatening her of causing injuries. Accused
No.1 has committed penetrative sexual assault/rape. Therefore,
it is stated that accused Nos.1 and 2 have committed the
offence punishable under Sections 363, 366, 506 read with
Section 34 of IPC and accused No.1 also committed offence
under Section 376 of IPC and Section 4 of POCSO Act.
7. PW1 who is the father of victim girl lodged the
missing complaint as per Ex.P1 and deposed before the Court
about the incident which was brought to his notice. PW2 is the
material witness who is the victim, aged 12 years. PW9 is the
doctor who examined PW2 and determined the age by issuing
the certificate as per Ex.P17 to the effect that she was aged
between 12 to 14 years. PW12 is the principal of the school
where the victim was studying who issued the study certificate
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as per Ex.P24, according to which, the victim was born on
28.07.2001. Since the incident had occurred during 2013, the
victim was aged 12 years at that the time.
8. PW2 during her evidence stated that she was
familiar with accused No.1 since about 1 year and both were
loving one another. On 17.07.2013, accused No.1 asked her to
accompany him. Even though she was not willing to go with
him, he threatened her of causing physical harm and asked her
to change her uniform and accompany him. Accordingly, she
went with accused No.1 and they were accompanied by
accused No.2 as well. Later, accused No.1 took the minor girl to
various places by bus and auto-rickshaw, and he committed
sexual assault on 22.07.2013. On 23.07.2013, she came back
to her house and informed these facts to her parents.
9. PW4 is the doctor who examined the victim girl and
issued Ex.P5. As per this document, upon physical and genital
examination of the victim girl, she found signs of previous
sexual intercourse. PW4 categorically stated, that there were
signs of previous sexual intercourse. Nothing has been elicited
from him to disbelieve his version. Even though it is the
contention of the learned counsel for the appellants that, since
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there was no signs of recent sexual intercourse, the contention
of the prosecution is to be disbelieved, it cannot be accepted
for the simple reason that there is no cross examination either
to PW2 or to PW4 in that line. Even though it is suggested to
PW4 that he does not know who has committed sexual assault
on the minor girl, it will not enure to the benefit of the accused
as the doctor is not supposed to know the same.
10. PW3 is the mother of the victim, who also stated
about the incident as learnt by her. PW5 is the Tahsildar who
has given caste certificate of the victim as per Ex.P12. PWs6 to
8 are the formal witnesses. PW9 is the doctor who examined
the victim and issued Ex.P17 - the age determination report,
and also the medical certificate as per Ex.P18 after examining
the accused. PWs-10, 11, 13, 14, 15 are the formal witnesses,
and PW16 is the Investigating Officer.
11. From the oral and documentary evidence placed
before the Court, the prosecution is successful in proving that
the victim was born on 28.07.2001 and she was aged about 12
years as on the date of incident. It was accused No.1, who was
familiar with the victim girl, took advantage of her age and took
her to various places. Of course, the victim has not raised hue
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and cry nor did she resist the acts of accused No.1. But the fact
remains that, she was a minor, aged 12 years and it cannot be
said that the acts committed by accused No.1 was with the
consent of minor girl. Therefore, it is to be concluded that
accused No.1 has committed the offence under Sections 363,
366, 506 and also under Section 376 of IPC and Section 4 of
POCSO Act.
12. Under Section 42 of POCSO Act, alternative
punishment is provided for the offence punishable under
Section 376 of IPC. The offender who is found guilty of the
offence under Section 376 as well as under the provisions of
POCSO Act is liable for punishment either under the Special
Enactment or under the provisions of IPC for punishment which
is greater in degree.
13. For the offence under Section 4 of POCSO Act,
which is proved against accused No.1 for having committed
penetrative sexual assault, he is liable for imprisonment of
either description which shall not be less than seven years.
Since the incident is of the year 2013, the minimum sentence is
7 years. Even though the Section was amended to increase the
minimum sentence to 10 years, it was only by the Amendment
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Act 25 of 2019 with effect from 16.08.2019, i.e., much after
commission of offence.
14. Under Section 376 of IPC, the accused is liable for
punishment with imprisonment of either description for a term
which shall not be less than seven years, but which may be for
life or for a term which may extend to 10 years, and shall also
be liable to fine. Minimum sentence of 10 years is amended by
Act 13 of 2013 with effect from 03.02.2013. Since the incident
had occurred during July-2013, the amendment was already
came into effect. Since the sentence prescribed under Section
376 of IPC is greater in degree than Section 4 of POCSO Act, he
is liable for conviction and sentence under Section 376 Act.
15. It is stated that accused No.1 is aged 21 years. The
medical records produced before the Court as per Ex.P18
disclose and support this contention. It cannot be said that the
accused who was aged 21 years, was having sufficient maturity
to understand the implications of his acts. He was initially
apprehended on 23.07.2013, and it is stated that he was
released on bail on 26.07.2014. Learned counsel for the
appellants confirms that on the date of conviction i.e., on
19.11.2019, again accused No.1 was taken to custody and till
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today he is in judicial custody. That means to say, accused
No.1 has already served the sentence for 7 and half years.
Considering the tender age of accused No.1, and also the
evidence of PW2 that she was very familiar with him and she
was in love with him since about 1 year and also the fact that
even though he had kidnapped the minor girl on 17.07.2013
and he was with her till 22.07.2013, but committed sexual
assault only once, I am of the opinion that accused No.1 who is
already said to have served the sentence for 7 and half years is
liable for sentence for the period, which he has already
undergone.
16. Regarding the offence alleged against accused No.2
for the offence under Sections 363, 366, 506 and 34 of IPC, it
is the contention of the prosecution that accused No.1 initially
took the assistance of accused No.2 to kidnap the minor girl.
From the records, it could be seen that accused No.2 was aged
24 years and he assisted accused No.1 and the victim to flee
from the town. Even though it is stated that he assisted them
and committed the offence as stated above, there is absolutely
no other allegations against him. Therefore, I am of the opinion
that, it was only the act committed by the victim as well as
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accused No.1 in the presence of accused No.2, who was hardly
aged 24 years. Considering the nature of the allegations
against him, I am of the opinion that, accused No.2 is entitled
for acquittal.
17. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court.
Even though the Trial Court rightly convicted accused No.1 for
the offence punishable under Sections 363, 366, 506 read with
Section 34 of IPC and under Sections 376 of IPC, 376 and
Section 4 of POCSO Act, it committed an error in sentencing
him to undergo imprisonment for 10 years each both under
Section 376 of IPC as well as under Section 4 of POCSO Act. It
has also committed an error in convicting accused No.2 for the
offence under Sections 363, 366, 506 read with Section 34 of
IPC, as it was solely the decision of the victim girl and accused
No.1 to go out of the town. There is no overt act alleged
against accused No.2 for committing kidnap or to criminally
intimidate the victim girl. Under such circumstances, I am of
the opinion that the impugned judgment of conviction and
order of sentence passed by the Trial Court calls for
interference to the extent referred to above.
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18. Accordingly, I proceed to pass the following:
ORDER
(i) Crl.A.No.761/2020 is allowed in part.
(ii) Crl.A.No.1990/2019 is allowed.
(iii) The judgment of conviction dated 19.11.2019 and
order of sentence dated 22.11.2019 passed in
S.C.No.1252/2013, on the file of the learned LXX Additional
City Civil & Sessions Judge & Special Judge, Bengaluru City
(CCH-71), for the offence punishable under Sections 363, 366,
506 read with Section 34 of IPC, are set aside in relation to
accused No.2.
(iv) Conviction of accused No.1 for the offence punishable
under Sections 363, 366, 506 read with Section 34 of IPC and
Section 376 of IPC and Section 4 of POCSO Act with sentence
awarded for the offence punishable under Sections 363, 366,
506 read with Section 34 of IPC is confirmed.
(v) However the Order of sentence for the offence
under Section 376 of IPC and Section 4 of POCSO Act is
modified as under:
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Accused No.1 is sentenced to undergo
imprisonment for which he has already undergone
for the offence punishable under Section 376 of
IPC.
Substantive sentence imposed on accused No.1
shall run concurrently, and he is entitled for set off.
Registry to send back TCR along with copy of this
judgment for information and necessary action.
Registry to communicate this order to the Chief
Superintendent of Central Prison, Parappana Agrahara,
Bengaluru for information and for necessary action.
Sd/-
(M G UMA)
JUDGE
SPV
