Karnataka High Court

Irfan vs The State Of Karnataka on 18 June, 2025

                                              -1-
                                                          NC: 2025:KHC:20931
                                                      CRL.A No. 1896 of 2021


                   HC-KAR



                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 18TH DAY OF JUNE, 2025

                                           BEFORE
                              THE HON'BLE MRS JUSTICE M G UMA
                              CRIMINAL APPEAL NO. 1896 OF 2021
                   BETWEEN:

                       IRFAN
                       AGED ABOUT 30 YEARS,
                       S/O ABDUL LATHEEF,
                       R/AT SHANTHI BHAG,
                       NEAR YENEPOYA HOSPITAL, NEAR TOWER,
                       DERALAKATTE,
                       KOTEKAR VILLAGE,
                       MANGALURU-574231
                                                               ...APPELLANT
                   (BY SRI. SACHIN B S., ADVOCATE)

                   AND:

                       THE STATE OF KARNATAKA
Digitally signed
by NANDINI B G         INSPECTOR OF POLICE,
Location: High         ULLAL POLICE STATION-575022
Court of
Karnataka              REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
                       HIGH COURT BUILDINGS,
                       BANGALORE-560001


                                                             ...RESPONDENT
                   (BY SMT.RASHMI JADHAV, ADDL. SPP)

                       THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C BY THE
                   ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HONBLE
                   COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED
                   JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
                               -2-
                                           NC: 2025:KHC:20931
                                      CRL.A No. 1896 of 2021


HC-KAR



29.11.2021, PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-1 (POCSO) D.K., MANGALURU IN
SPL.C.NO.117/2014, CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 366A, 342, 506 OF
IPC AND SECTION 4 OF THE POCSO ACT R/W SECTION 376 OF IPC
AND ACQUIT THE APPELLANT FROM THE ABOVE SAID OFFENCES.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:    HON'BLE MRS JUSTICE M G UMA


                      ORAL JUDGMENT

The accused in Special Case No.117/2014 on the file of

the learned Additional District and Sessions Judge, FTSC-1

(POCSO) D.K., Mangaluru, is impugning the Judgment of

conviction and order of sentence dated 29.11.2021 convicting

him for the offence punishable under Sections 366A, 342 and

506 of IPC and Section 4 of POCSO Act read with Section 376

of IPC and sentencing to undergo (i) rigorous imprisonment for

a period of three years and to pay fine of Rs.5,000/- for the

offence punishable under Section 366A of IPC, (ii) rigorous

imprisonment for a period of five months and to pay fine of

Rs.1,000/- for the offence punishable under Section 342 of IPC,

(iii) rigorous imprisonment for a period of one year and to pay

fine of Rs.2,000/- for the offence punishable under Section 506

NC: 2025:KHC:20931

HC-KAR

of IPC, (iv) rigorous imprisonment for a period of seven years

and also pay fine amount of Rs.10,000/- for the offence

punishable under Section 4 of POCSO Act read with Section 376

of IPC with default sentences.

2. Brief facts of the case as made out by the prosecution

is that, the victim -PW5 was a minor aged about 17 years. The

accused kidnapped her with an intention to commit sexual

assault. He had taken her to Chikkamagaluru, kept her in

S.K.Regency Hotel and wrongfully confined her from

04.08.2014 till 06.08.2014 in room No.101. During that

period, he committed penetrative sexual assault forcibly by

giving life threat to cause her death. He also forcefully snatched

the chain worn by the victim, and thereby committed the

offences as stated above.

3. PW-1, the father of the victim girl lodged the first

information as per Ex.P-1 alleging kidnap of the minor girl by

the accused and others. On the basis of same, FIR came to be

registered. On 07.08.2014 the victim was found in the

company of the accused in S.K.Regency Hotel in room No.101.

NC: 2025:KHC:20931

HC-KAR

The victim was rescued and accused was apprehended. The

statements of the victim were recorded by the Child Welfare

Committee (for short `CWC') and also by the learned

Magistrate under Section 164 of Cr.P.C. After completing

investigation, the charge sheet came to be filed. The accused

appeared before the Trial Court, pleaded not guilty and he

claimed to be tried.

4. Prosecution examined PWs-1 to PW-15 and got marked

Ex.P1 to Ex.P22(a) and identified MOs 1 to 12 in support of its

contentions. The accused has denied all the incriminating

materials on record in his statement under Section 313 of

Cr.P.C., but has not led 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 has proved the guilt of the accused beyond

reasonable doubt, for the offences punishable under Sections

366A, 342 and 506 of IPC and under Section 4 of the POCSO

Act read with Section 376 of IPC, while acquitting him for the

offences punishable under Section 392 of I.P.C. Being

aggrieved by the same, the appellant is before this Court.

NC: 2025:KHC:20931

HC-KAR

5. Heard Sri.B.S.Sachin, learned counsel for the

appellant and Smt.Rashmi Jadhav, learned Additional SPP for

the respondent-State. Perused the materials including the trial

Court records.

6. Learned counsel for the appellant contended that

almost all the witnesses including the victim and the informant

have turned hostile and they have not supported the case of

the prosecution. Under such circumstances, there are

absolutely no materials to convict the accused for the above

said offences. None of the independent witnesses have been

examined in support of the contention of the prosecution that

the accused had either kidnapped the victim girl or had

abducted her to Chikkamagaluru, kept her in the hotel room,

and committed sexual assault. In the absence of any material,

the Trial Court committed an error in convicting the accused.

7. Learned counsel contended that Section 366A of IPC is

not at all attracted to the facts of the case. Even then, the

accused was convicted without any basis. The statement of the

victim girl relied on by the prosecution were under threat by

NC: 2025:KHC:20931

HC-KAR

the police. Hence, the Trial Court ought not to have placed

reliance on the same.

8. It is submitted that the CCTV camera in the hotel was

never recovered by the police to show that the accused had

taken the victim girl to the said hotel at Chikkamagaluru.

When the prosecution is not successful in proving the

contention regarding commission of offence by the accused, the

provisions under Section 29 of the POCSO Act cannot be

invoked to convict the accused. Thus, it is his contention that

the prosecution has miserably failed to prove the guilt of the

accused. Under such circumstances the accused was entitled

for acquittal. But the Trial Court committed an error and

without any basis convicted the accused. Hence, he prays for

allowing the appeal.

9. Per contra, learned Addl. SPP for the respondent-State

submits that the father of the victim girl lodged the first

information as per Ex.P1. He stated that it is the accused who

took the victim girl with the help of others. He was examined

as PW-1. PW-2 and PW-3 who are the eyewitnesses. PW-4 is

NC: 2025:KHC:20931

HC-KAR

the mother of the victim girl and PW-5 is the victim herself.

PW-6 is the witness to spot mahazar. But unfortunately, all

these witnesses have turned hostile to the prosecution case

without reason. PW-7 is the Investigating Officer who

proceeded to Chikkamagaluru and visited S.K.Regency Hotel,

where the accused had confined the victim. He has drawn the

spot mahazar as per Ex.P-12 and seized the ledger book which

is as per Ex.P17. At page No.97 it refers to the name of

accused as the occupant of room in question. Even his phone

number and address is mentioned therein and there is

absolutely no cross examination to PW-7.

10. PW-8 is the social worker who took the victim girl to

CWC where her statement as per Ex.P-18 was recorded, which

was immediately after her rescue. Ex.P11 is the statement of

the victim girl under Section 164 of Cr.P.C. Ex.P11 and Ex.P18

corroborates with one another.

11. Learned Addl. SPP submitted that PW10 is the doctor

who examined the victim and issued Ex.P13. She clearly states

that hymen was ruptured and there is sexual assault on the

NC: 2025:KHC:20931

HC-KAR

victim. There is absolutely no cross examination on this point

as well. PW9 is the Principal of the school who issued the study

certificate as per Ex.P14. As per this document her date of

birth is 22.12.1997 as on the date of commission of offence and

she was only 17 years of age. The Investigation Officer and

other official witnesses were examined as PWs11 to PW15

have supported the case of the prosecution. Under such

circumstances, the Trial Court has rightly convicted the accused

and accordingly, prays for dismissal of the appeal.

12. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"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?"

13. My answer to the above point is `partly in the

affirmative' for the following reasons:

NC: 2025:KHC:20931

HC-KAR

REASONS

14. It is the specific contention of the prosecution that

the victim was minor as on the date of incident from

04.08.2014 to 06.08.2014. To prove that contention, the

prosecution examined PW9 who issued study certificate as per

Ex.P14. As per this document, date of birth of victim is

22.12.1997. Except denial of statement of this witness,

nothing has been elicited during the cross examination to

disbelieve his version or to ignore Ex.P14.

15. Initially, PW1 the father of the victim lodged the first

information as per Ex.P1 alleging kidnapping of minor girl. FIR

was registered against the accused and others. It was

spontaneous act of the father of the victim and on the basis of

same, the criminal law was set into motion. However, he has

not supported the case of the prosecution for the reasons best

known to him. PW2 and PW3 are the eye witnesses who have

given statement regarding kidnapping of the victim girl by the

accused. They have also not supported the case of the

prosecution. PW4 who is the mother of the victim also has not

supported the case of the prosecution. Unfortunately, the

- 10 -

NC: 2025:KHC:20931

HC-KAR

victim girl has denied the whole incident. She has gone to the

extent of saying that she does not identify the accused. She

has denied her mobile number.

16. It is relevant to note that, during the cross

examination, she admitted that she has given statement as per

Ex.P11. There is absolutely no explanation by the victim as to

why she has given statement before the learned Magistrate as

per Ex.P11, when no such incident had taken place. Victim

admits that she is already married to somebody else and is

having two children. Therefore, she compromised with the

accused. Thus, true reason has come out from the mouth of

the victim as to why the parents, eye witnesses and victim

herself have not supported the case of the prosecution. Merely

because PW1 to PW6 have not supported the case of the

prosecution for the reason that the victim is already married to

someone else, and is having children, the materials on record

and the evidence of other witnesses cannot be ignored.

17. PW-7 -Investigating Officer had gone to

Chikkamagaluru, visited S.K.Regency hotel and found the

- 11 -

NC: 2025:KHC:20931

HC-KAR

victim girl in the company of accused in room No.101. He

states that he has drawn mahazar as per Ex.P8 and also seized

the ledger maintained in the hotel which is as per Ex.P17. He

points at Ex.P17, where there is reference to name, address

and phone number of the accused as he was the occupant of

room No.101. There is absolutely no cross examination to this

witness to disbelieve his version. Nothing is suggested to the

witness regarding availability of CCTV cameras in the hotel.

18. Other material witness is PW8 who has taken the

victim girl to CWC, where her statement as per Ex.P18 was

recorded on 08.08.2014 i.e., immediately after her rescue.

Ex.P11 was recorded on 25.08.2014 by the learned Magistrate.

There are no reasons to disbelieve these statements of the

victim girl.

19. PW10 doctor who examined the victim, had issued

Ex.P13. This document also supports the case of the

prosecution with regard to commission of sexual assault.

Strangely there is not even a denial regarding the contents of

Ex.P13 during the cross examination.

- 12 -

NC: 2025:KHC:20931

HC-KAR

20. From the materials on record, I am satisfied that the

victim, who was subjected to sexual assault by the accused

after kidnapping her has not supported the prosecution case

since she is already married and having two children. Simply

because the victim has not supported the case of the

prosecution as she is compelled to, due to the circumstances

referred to above, it would not enure to the benefit of accused

to seek acquittal. There are sufficient material available on

record to prove the guilt of the accused beyond doubt.

21. In view of the above, I am of the opinion that the

accused had kidnapped the minor girl against her wishes, taken

her and illegally detained her in room No.101 of S.K.Regency

Hotel at Chikkamagaluru and also committed sexual assault.

Thus, he committed offences punishable under Sections 363,

342 and 506 of IPC and also Section 4 of the POCSO Act read

with Section 376 of IPC, and is liable for conviction. I have

gone through the impugned Judgment of conviction, and order

of sentence passed by the Trial Court.

22. The Trial Court has taken into consideration all the

oral and documentary evidence available on record, and held

- 13 -

NC: 2025:KHC:20931

HC-KAR

that the prosecution is successful in proving the guilt of

accused beyond reasonable doubt. However, the Trial Court

committed an error in concluding that the accused has

committed the offence punishable under Section 366A instead

of Section 363 of IPC. Therefore to that extent Judgment of

conviction and order of sentence calls for interference by this

Court. The Judgment of conviction and order of sentence for

other offences stands affirmed except the offence under Section

366A of IPC. In view of the above I answer the above point

partly in the affirmative and proceed to pass the following:

ORDER

(i) Appeal is allowed in part.

(ii) The Judgment of conviction and order of sentence

dated 29.11.2021 passed in Spl.C.No.117/2014 by the

learned Additional District and Sessions Judge, FTSC-1

(POCSO) D.K., Mangaluru, for the offences punishable

under Sections 342 and 506 of IPC and Section 4 of

POCSO Act read with Section 376 of IPC is hereby

confirmed.

- 14 -

NC: 2025:KHC:20931

HC-KAR

(iii) The Judgment of conviction and order of sentence for

the offence punishable under Section 366A is set aside.

Instead, the accused is convicted for the offence

punishable under Section 363 of IPC and he is sentenced

to undergo simple imprisonment for a period of three

years and pay fine of Rs.5,000/-. In default to pay fine, he

shall undergo simple imprisonment for a period of six

months.

Registry to send back the Trial Court records along with