Karnataka High Court
Parashuram S/O Mahadevappa Harijan vs The State Of Karnataka on 27 June, 2025
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CRL.A No. 100239 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CRIMINAL APPEAL NO.100239 OF 2017 (C)
BETWEEN:
PARASHURAM,
S/O. MAHADEVAPPA HARIJAN,
AGED ABOUT 24 YEARS,
OCC: PRIVATE SERVICE,
R/O: KAMADOLLI,
TALUK: KUNDGOL,
DIST: DHARWAD.
...APPELLANT
(BY SRI. VIJAY M.MALALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY SUB-INSPECTOR KUNDGOL,
Digitally signed by
REPRESENTED BY
MOHANKUMAR B
SHELAR
STATE PUBLIC PROSECUTOR,
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF
KARNATKA DHARWAD.
DHARWAD
BENCH ...RESPONDENT
Date: 2025.07.16
14:40:11 +0530 (BY SRI. M.B.GUNDAWADE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF
CRPC SEEKING TO CALL FOR RECORDS AND TO SET ASIDE THE
JUDGMENT DATED 30.03.2017 AND IN SPL. SESSIONS CASE NO.19
OF 2015 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE
AND SPL. JUDGE, DHARWAD CONVICTING THE APPELLANT FOR
OFFENCE UNDER SECTION 366, 376 OF IPC AND SECTION 6 OF
POCSO ACT 2012 BY ALLOWING THIS APPEAL.
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CRL.A No. 100239 of 2017
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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
ORAL JUDGMENT
The convict in Spl. S.C. No.19/2015 on the file of the III
Additional District and Sessions Judge, & C/C II Additional
District and Sessions Judge & Special Judge, Dharwad, has filed
this appeal challenging his conviction vide judgment dated 30th
March 2017 for the offences punishable under Section 366 of
the Indian Penal Code, 1860, and Section 6 of the Protection Of
Children From Sexual Offences Act, 2012 (POCSO Act). He has
also challenged the order of sentence, sentencing him to
undergo rigorous imprisonment for a period of ten years for the
offence punishable under Section 6 of the POCSO Act and to
pay fine of Rs.5,000/-, and to undergo simple imprisonment for
a period of one year and to pay fine of Rs.1,000/- for the
offence punishable under Section 366 of IPC.
2. i) The case of the prosecution was that, on
14.09.2013, the complainant informed the respondent-Police
that, on 13.09.2013 at 10.00 a.m., her daughter (henceforth
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referred as 'victim girl') and her friend Kavitha had gone to
Karnataka Bank at Kundgol to open an account. Later at 1.30
p.m., Kavitha and Basavaraj Manjappa Buroji went to the
complainant's house and informed her that when they and the
victim girl were walking near KCC Bank, Kundgol, at about 12
noon, the accused came on a motor cycle, pushed them and
whisked away the victim girl towards market road. They
informed that they followed the accused and found that the
motor cycle that the accused was riding was bearing No.KA-
36/L-5163. The complainant informed this to her family
members and her relatives and they searched for her.
Therefore, she alleged that the accused had kidnapped the
victim girl who was a minor aged 17 years.
ii) Based on the information provided, the respondent-
Police registered a case in Crime No.117/2014 for the offence
punishable under Section 363 of IPC. The accused and the
victim girl were traced in Hiremorab on 27.01.2015 and the
accused was arrested on 27.01.2015 by C.W.36. Based on the
information furnished by the accused, the motor cycle that he
used for the crime was seized. The accused and the victim girl
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were subjected to medical examination and after obtaining the
forensic report, it was opined that the victim girl was used to
the act of sexual intercourse and it was also reported that there
was no evidence of fresh sexual intercourse. The respondent-
police drew up mahazar of the place of crime and also the
relevant mahazars for seizure of the motor cycle, the seizure of
M.Os.1 to 14. They recorded the statement of the victim girl as
well as the other relevant witnesses and laid a charge sheet for
the offences punishable under Sections 366 and 376 of IPC and
Section 6 of the POCSO Act. A copy of the charge sheet was
furnished to the accused. Accordingly, charges were framed for
the offences punishable Sections 366 and 376 of IPC and
Section 6 of the POCSO Act. The accused pleaded not guilty
and claimed to be tried.
iii) The prosecution, in all, examined P.Ws.1 to 21 and
marked Exs.P.1 to P.25 and M.Os.1 to 16. Amongst the
prosecution witnesses, P.W.1-complainant was a hearsay
witness but stood by the prosecution. P.W.2 was the victim girl.
P.W.3 was the person who accompanied the victim girl on the
date of the alleged incident. P.W.4 was a friend of the victim
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girl. P.W.5 was the witness to the mahazar (Ex.P.10) of the
scene of the crime. P.W.6 was a witness to the seizure of motor
cycle under mahazar at Ex.P.11. P.W.7 was the witness to the
seizure mahazar under which M.Os.1 to 6 were recovered
under Ex.P.13.
iv) P.W.8 was the Medical Officer who initially
examined the victim and collected clothes of the victim which
were marked as M.Os.1 to 6. Her report was marked as
Ex.P.16. The clothes worn by the accused were seized and
marked as M.Os.7 to 14. P.W.9 was the Medical Officer who
examined the victim girl for determination of age as per
certificate marked as Ex.P.17. According to P.W.9, the age of
the victim girl was between 17 to 18 years though he deposed
that he could not give the exact age of the girl.
v) P.W.10 was the Senior Teacher at R.V.Patil
Government High School, Kamadolli, where the victim girl had
studied. P.W.11 was the Assistant Teacher at R.V.Patil
Government High School who gave a certificate at Ex.P.18
stating that as per the school records, the date of birth of the
victim girl was 31.05.1988. P.W.12 was the Panchayat
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Development Officer of Hiremorab Gram Panchayat who issued
the extract of the property bearing No.122 from where the
accused was allegedly arrested and the said property extract
was marked as Ex.P.19. P.W.13 was the owner of the motor
cycle bearing No.KA-36/L-5163 which was seized and marked
as M.O.15. P.W.14 is a witness to the spot mahazar (Ex.P.7).
vi) P.W.15 was the woman ASI who recorded the
statement of the victim girl. P.W.16 was the Head Constable
who registered the case in Crime No.117/2014 and sent the
first information to the Court which was marked as Ex.P.20. He
also visited the spot of the crime and drew up the mahazar as
per Ex.P.7 and also recorded the statement of C.W.10, C.W.13
and C.W.14 and handed over further investigation of the case
to P.W.17. P.W.17 was the ASI who recorded the statements of
C.W.11 and 12 and the statement of C.W.11 was marked as
Ex.P.8. He also arrested the accused on 27.01.2015 and
thereafter handed over investigation to P.W.21.
vii) P.W.18 was one of the witnesses whose statement
was recorded as per Ex.P.21 and he turned hostile. P.W.19 was
a witness whose statement was recorded as per Ex.P.22 and he
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too turned hostile. P.W.20 was also one of the witnesses and
his statement was recorded as per Ex.P.23 and he too turned
hostile. P.W.21 was the Investigating Officer.
viii) The Trial Court read over the incriminating evidence
to the accused as survived under Section 313 of Cr.P.C.
However, the accused denied the evidence and did not adduce
any evidence in defence. Based on the oral and documentary
evidence, the Trial Court held that P.W.1 was not an eyewitness
to the incident, but based on the information given to her, she
had set the criminal law in motion. It perused the evidence of
P.W.2 and held that though the defence had disputed the age
of the victim, but no material worthy of acceptance was
produced to disbelieve the medical report of the victim as well
as the school records, which showed the date of birth of the
victim as 31.05.1998. It relied upon the evidence of the victim
girl (P.W.2) who deposed that the accused came on a motor
cycle, took her to a village and thereafter took her to
Hiremorab village and kept her in a hut. It also perused the
evidence of P.W.2 that despite her protest, the accused had
sexual intercourse with her promising her that he would marry
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her. It perused Ex.P.2 which is the statement of the victim girl
recorded under Section 164 of Cr.P.C. It held that due to the
threat by the accused, the victim girl did not protest or did not
raise an alarm when she was kept in Hiremorab village.
Therefore, it held that the trust worthiness of the victim girl
was not shaken and that the accused had committed
aggravated sexual assault. It also held that P.Ws.3 and 4 who
were friends of the victim girl stood by the prosecution and had
narrated the incident of the victim girl being kidnapped. It
perused the evidence of P.W.13 who was the owner of the
motor cycle. He deposed that about one and half a year ago,
the accused took the motor cycle and thereafter he got the
same released from the Court. It further held that though the
Medical Report at Ex.P.14 showed that there were no signs of
recent sexual intercourse, but as per the report at Ex.P.16,
P.W.8 opined that there was nothing to suggest that the
accused was not capable of indulging in sexual intercourse. It
also held that the victim girl was kept in custody for four
months and on the date of her examination by P.W.8 she had
taken bath. Therefore, it held that there could be no signs of
recent sexual intercourse. It held that the evidence of P.W.2
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was corroborated by the medical evidence as per Ex.P.14 to
P.16. Further, it held that Ex.P.17 was the radiological report of
the Medical Officer regarding the age of victim girl. It held that
after the examination of the teeth and x-ray, the victim girl was
aged between 17-18 years. It also perused Ex.P.18 which
indicated the date of birth of the victim as 31.05.1998.
Therefore, it held that the accused had committed offence of
aggravated sexual assault on the victim girl. Consequently, it
held that the there was sufficient evidence to convict the
accused for the offence punishable under Section 366 of IPC
and sentenced him to undergo simple imprisonment of one year
and to pay fine of Rs.1,000/-, and rigorous imprisonment for a
period of 10 years for the offence punishable under Section 6 of
the POCSO Act and to pay fine of Rs.5,000/-. Being aggrieved
by the judgment of conviction and order of sentence, the
accused is before this Court.
3. i) Learned counsel for the appellant/accused
contends that the accused and the victim girl were neighbours
and knew each other. He contends that the allegation that the
accused had kidnapped the girl on a motor cycle is highly
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improbable as the spot mahazar shows that the offence was
committed at 10.00 a.m. on a working day. He contends that
all the prosecution witnesses had admitted that the road where
the offence was committed was frequently used by motorists
and pedestrians. He also contends that it is highly improbable
that the accused had single handedly kidnapped the victim girl
that too on his motor cycle. He further contends that the victim
girl had stated in her evidence that she was, initially, taken to a
village where she stayed for a day at a house of the relative of
accused and thereafter traveled by bus to Hiremorab village.
He contends that victim did not raise an alarm either in the
relative's house of the accused or while traveling by bus to
Hiremorab village. He therefore, contends that this creates a
doubt about the prosecution case.
ii) He contends that P.W.1 admitted that there were
frequent tiffs between the people belonging to the community
of the accused and the community of the victim girl. Therefore,
he contends that it was possible that the accused was framed
to settle scores.
iii) He further contends that even at Hiremorab village,
where the victim girl was kept for nearly four months, she did
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not raise any alarm or attempt to escape even when the
accused was not at home and had gone out for work. This, he
contends, is very unusual and hard to accept and creates a
doubt about the sanity of the prosecution.
iv) He further contends that there is no injury either on
the body of the victim girl or on the accused and thereby
belying the case of the prosecution that the accused had
forcible sexual intercourse with the victim girl.
v) He further contends that as per Ex.P.17, the age of
the victim girl was between 17 to 18 years. P.W.9, who issued
Ex.P.17, was of the opinion that he could not give the exact age
of the victim girl. He contends that Ex.P.18 was the certificate
issued by P.W.10 indicating that as per the records maintained
in the school, the date of birth of the victim girl was
31.05.1998. He, therefore, contends that the prosecution has
failed to produce any clinching material to establish that the
victim girl was a "child" as defined under Section 2(1)(d) of the
POCSO Act. He contends that in the absence of any proof to
establish beyond doubt that the victim was a child, the
invocation of Section 6 of the POCSO Act was not proper and
the finding of the Trial Court that the accused had committed
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the offence punishable under Section 6 of the POCSO Act is
without basis. In support of his contention, he relied upon a
judgment of Co-ordinate Bench of this Court in Crl. Appeal
No.1835 of 2019 [Yuvaraja Naika Vs. State of Karnataka &
Another, disposed of on 04.10.2023]. He therefore, prays that
the impugned judgment of conviction and the order of sentence
be set aside and the accused be set free.
4. i) Per contra, learned Additional State Public
Prosecution contended that it is in the evidence of P.W.1 and
P.W.2 that the house of the victim and the accused were
behind each other and therefore, the victim was known to the
accused. He contends that P.W.13, who is the owner of the
motor cycle bearing No.KA-36/L-5163, deposed that the
accused had taken the motor cycle about 1½ years before the
date he deposed before the Court, which corresponds with the
date of the crime.
ii) He contends that the evidence of P.W.2, 3 and 4
corroborated the incident on 13.09.2014 when the accused
kidnapped the victim girl on the motor cycle. He contends that
the accused held the victim girl captive for nearly four months
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and had forcible sexual intercourse with her and the same is
established by the report of the Medical Officer at Ex.P.17
where it was mentioned that the victim girl was used to sexual
intercourse. He therefore, contends that the prosecution has
proved the offence punishable under Section 366 of IPC beyond
reasonable doubt.
iii) He further contends that the x-ray examination of
the victim girl reveal that she was aged between 17 to 18 years
and the same was corroborated by Ex.P.18, a Certificate issued
by the school indicating the date of the victim girl as
31.05.1998. He therefore, contends that the victim was a child
and hence, the act of the accused kidnapping the girl and
having sexual intercourse was an act of aggravated sexual
assault punishable under Section of 6 of the POCSO Act.
Therefore, he contends that the conviction of the accused
punishable under Section 6 of the POCSO Act and the
consequent sentence are well founded and based on clear
evidence. He, therefore, prays that the impugned judgment of
conviction and order of sentence be upheld.
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5. I have considered the submissions of the learned
counsel for the accused and the learned SPP for the State. I
have perused the records of the Trial Court as well as the
judgment. The point that arises for my consideration in this
appeal is,
Whether there was sufficient evidence to
establish the charges against the accused beyond
reasonable doubt?
6. P.W.2, in her evidence, deposed that when she was
walking towards Kundgol to open an account in a bank, the
accused turned up on a motor cycle and asked her to hop on.
She claimed that though she refused, the accused pushed away
P.Ws.3 and 4, held P.W.2 by her hand and rode away with the
victim girl. Ex.P.6 is the photograph of the spot of the crime
which shows that on either side of the road there are houses.
P.W.14 deposed that the said road is always crowded. Besides
this, it is highly improbable for the accused to kidnap the victim
girl on a motor cycle unless the victim cooperated in the act.
The victim girl did not raise any alarm for the passers-by to
notice which itself gives an indication that the victim got on to
the bike on her own accord. The subsequent conduct of the
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victim in riding on the bike for nearly 3 ½ hours to go to a
house of the relative of the accused where he was admonished,
gives a clear impression that the victim accompanied the
accused on her own accord. Even at the house of the relatives
of the accused, the victim did not raise an alarm and did not
attempt to seek any one's help for being rescued and did not
seek help of his relative to rescue her. The fact that the victim
went on her own volition with the accused is proved by the fact
that the victim and the accused traveled to Hiremorab village in
a bus. Even in the bus, the victim did not raise any alarm and
did not seek any help for being rescued. Even at the house at
Hiremorab, though the victim deposed that there were houses
adjoining, she did not raise any alarm and did not attempt to
free from the clutches of the accused. As a matter of fact, she
deposed that the accused used to go out to work from morning
10'O clock to evening 7'O clock. Even during that time, the
victim did not attempt to flee from the place. The victim
continued to live with the accused till they were secured by the
police. Therefore, as per the case presented by the prosecution,
there were no elements of an offence punishable under Section
366 of IPC. The finding of the Trial Court that the evidence of
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P.W.2, 3 and 4 was sufficient to convict the accused for an
offence punishable under Section 366 of IPC is not well founded
but is based on assumption and presumptions and hence
warrants interference.
7. In so far as the offence punishable under Section 6
of the POCSO Act, it is mandatory that to attract an offence
under Section 6 of the POCSO Act, the victim should a "child"
as defined under Section 2(1)(d). The manner of ascertainment
of the age of child is as prescribed under Section 34 of the
POCSO Act which is as follows:
"34. Procedure in case of commission of offence by
child and determination of age by Special Court.--(1)
Where any offence under this Act is committed by a child,
such child shall be dealt with under the provisions of 1
[the Juvenile Justice (Care and Protection of Children)
Act, 2015 (2 of 2016)].
(2) If any question arises in any proceeding before
the Special Court whether a person is a child or not, such
question shall be determined by the Special Court after
satisfying itself about the age of such person and it shall
record in writing its reasons for such determination.
(3) No order made by the Special Court shall be
deemed to be invalid merely by any subsequent proof
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that the age of a person as determined by it under sub-
section (2) was not the correct age of that person."
8. In the case on hand, Ex.P.17 is the x-ray
examination of the dentures/teeth of the victim girl which
shows that T8 (wisdom tooth) was erupting a Dental Scientist.
Wheeler's Dental Anatomy, Physiology, and Occlusion has
mentioned that T8 usually emerges in late teens or early
twenties. The age of the person can be determined based on
evidence regarding completion of rooting. Though Ex.P.17
shows eruption of T8 there is no mention whether the rooting
of T8 was complete or not. has mentioned that T8 usually
emerges in late teens or early twenties. P.W.9 who issued the
certificate as per Ex.P.17 deposed that the victim girl was aged
between 17 to 18 years, but however he deposed that he could
not give the correct age of the victim girl. Ex.P.18, which is the
certificate issued by P.W.11, was based on self-declaration that
the date of birth of victim girl was 31.05.1998. These evidences
were just not sufficient to establish that the victim girl was a
child as defined under the POCSO Act. On the contrary, it
appears from Ex.P.14 that the date of last menstrual period of
the victim was 5 years prior to her examination on 09.02.2015,
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which would be in the year 2010. It is doubtful whether the
victim girl could have her periods as a twelve year old, going by
the date of birth mentioned in the school records. Therefore,
unless there is clinching evidence to establish that the victim
was a child, the Trial Court committed an error in convicting the
accused for the offence punishable under Section 6 of the
POCSO Act. The least that the prosecution must have done
when they pressed charges under Section 6 of the POCSO Act
was to get a proper medical examination of the victim girl to
ascertain her age as provided under Section 94 of the Juvenile
Justice (Care and Protection of Children) Act, 2015. Since the
same is not done, it is not safe to rely upon Ex.P.17 and
Ex.P.18 to hand down a conviction for the offence punishable
under Section 6 of the POCSO Act. Consequently, the following
order is passed:
ORDER
i) The appeal is allowed.
ii) The impugned judgment of conviction of the
petitioner for the offences punishable under Section
366 of IPC and Section 6 of the POCSO Act and the
consequent sentence are set aside.
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iii) The accused is set at liberty.
iv) Any bail bonds furnished shall stand discharged.
Sd/-
(R.NATARAJ)
JUDGE
KMS
Ct:vh
