Karnataka High Court
Mohammed Ubedulla vs The State Of Karnataka on 14 March, 2025
1 CRL.A.NO.100117/2022
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100117/2022
BETWEEN:
MOHAMMED UBEDULLA
S/O MOHAMMED SALEHA SHAIKH
AGED ABOUT 48 YEARS,
R/O SHIVAMOGGA
NOW AT NEAR GALIMASTI TEMPLE,
SIRSI
...APPELLANT
(BY SRI. S.P. KANDAGAL, ADVOCATE)
Digitally signed by
MALLIKARJUN
RUDRAYYA AND:
KALMATH
Location: HIGH
COURT OF
KARNATAKA THE STATE OF KARNATAKA
THROUGH NEW MARKET POLICE STATION
SIRSI
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH - 580 011
...RESPONDENT
(BY SRI. ABHISHEK MALIPATIL, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. SEEKING TO PASS AN ORDER CALLING FOR THE RECORDS
FROM THE TRIAL COURT, AND SET ASIDE THE JUDGMENT AND ORDER
DATED 15.03.2021 AND ORDER OF SENTENCE DATED 16.03.2021
PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-
U. K. KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER
POCSO ACT) IN SPECIAL CASE NO.28/2019 CONVICTING THE
APPEALLANT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 376(2)(f) AND 506 IPC AND SECTIONS 6 AND 8 OF THE
POCSO ACT AND PASS SUCH OTHER ORDER OR DIRECTIONS AS MAY
BE DEEMED FIT UNDER THE CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.
2 CRL.A.NO.100117/2022
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
03.12.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI)
This appeal filed under Section 374(2) of the Code of
Criminal Procedure (for short, 'Cr.P.C'), is by the accused
challenging his conviction and sentence for the offences
punishable under Sections 376 (2)(f), 506 of IPC and
Sections 6 and 8 of POCSO Act.
2. For the sake of convenience parties are referred
to by their ranks before the trial Court.
3. A charge sheet came to be filed by the concerned
police against the accused alleging that he is no other than
the father of prosecutrix. Accused along with his wife, son
and daughter (prosecutrix) was staying in a room behind the
house of his in-laws near Sri Gali Masthi temple, Sirsi. On
10.06.2018, 11.00 a.m, when the prosecutrix was alone in
the room and her mother had gone out to wash clothes and
brother was out playing, accused committed rape on the
prosecutrix who was aged 15 years and gave threat that if
she disclose the said fact to anyone, he would kill her mother
and brother by poisoning them. Similarly on 5-6 occasion,
accused committed rape on the prosecutrix. As a result of
the rape, prosecutrix became pregnant and gave birth to a
son on 04.03.2019 and thereby the accused has committed
the offences punishable under Sections 376(2)(f), 506 of IPC
and Sections 4, 6 and 8 of POCSO Act.
4. In respect of the incident, complaint is given by
the prosecutrix. It reveal that at the time of filing the
complaint prosecutrix was studying in 9th standard at Ave
Maria High School, Sirsi. Though her father Ubedulla Shaikh
(accused for short) is hailing from Ragigudda of Shivamogga,
after his marriage with the mother of the prosecutrix, he
settled at Sirsi in the house of her maternal grand parents.
He does coolie (Hamali) work, while her mother is a
homemaker.
4.1 It is further stated in the complaint that on
10.6.2018 at 11.00 a.m, while she was in the house, her
mother had gone out to wash the clothes and her brother
Mohammed Sufiyan was playing outside, accused started
touching her body, including private part and removed her
clothes. Even though she resisted, he committed rape on
her. Accused warned the prosecutrix not to reveal this fact to
anyone or else he would kill her mother and brother (his wife
and son) by poisoning them. Accused repeated the said act
5-6 times. Fearing him, she did not inform anyone about the
said incidents.
4.2 About three months prior to the date of filing the
complaint, Fatima B. Latanwale the maternal grandmother of
prosecutrix called prosecutrix to her house and was enquiring
as to why she is not visiting her house and she is very silent
and dull. While so speaking, Fatima B Latanwale touched her
body and finding that her stomach is bulged, she questioned
the prosecutrix. When she did not give any reply, Fatima B
Latanwale took her to the nursing home of Dr Shanta Bhat
and on examination, the doctor revealed that prosecutrix is
seven months pregnant. When Fatima B Latanwale
demanded as to who is responsible for the same, she gave
the name of Ayan as tutored by Accused. Thereafter she
stopped going to school.
4.3 On 04.03.2019 at 3-00 a.m, prosecutrix suffered
labour pain. She was taken to TSS hospital where she gave
birth to a son. After discharge from the hospital, when her
maternal grandparents made her to touch Quran and reveal
the name of the person who is the father of the child, she
disclosed the truth and revealed the fact of accused having
raped her on multiple occasion resulting in the her
pregnancy. Thereafter, the Anganwadi Aaya and teacher
visited her and enquired about the incident and as per the
advice given by the officials of the child helpline,
accompanied by her maternal grandparents she visited the
police station and filed the complaint.
5. Based on the complaint, the concerned police
have registered the case in Cr.No.37/2019 for the offences
punishable under Section 376(2)(f) and 506 IPC and Sections
4, 6 and 8 of the POCSO Act. During the investigation both
prosecutrix and accused are subjected to medical
examination. The blood samples of prosecutrix, accused and
the child were collected and sent to FSL Bengaluru for DNA
profiling to ascertain the paternity of the child. After
conducting detailed investigation, charge sheet is filed
against the accused.
6. Accused pleaded not guilty to the charges levelled
against him and claimed trial. He has come up with a
defence that one Ayan was responsible for the pregnancy of
the prosecutrix and to save him, he has been falsely
implicated.
7. In the light of the specific allegations made
against the accused, initial and heavy burden is on the
prosecution to prove the allegations beyond reasonable
doubt. Incidentally, it is also necessary to examine whether
the accused has proved, by atleast preponderance of
probabilities that there is a person by name Ayan and he is
responsible for the pregnancy of the prosecutrix and accused
is falsely implicated due to the stained relationship between
him and the mother of the prosecutrix.
8. This is an unfortunate case, wherein it is alleged
that accused being the father of prosecutrix has raped her
repeatedly 5-6 times resulting in her pregnancy. This fact
came to light to outsiders only when the prosecutrix gave
birth to a son and after coming to know about an unmarried
minor girl giving birth to a child came to the notice of the
concerned officials of Child Welfare Department, it lead to
the registering of the case and ultimately charge sheet came
to be filed culminating in the conviction of the accused.
9. The relationship between the accused and the
prosecutrix being father and daughter is not in dispute. PW-1
the prosecutrix, PW-3 and PW-11, the parents-in-law and
PW-12, the wife of accused have deposed to this effect. PW-4
Sunil Bhovi is working as Co-ordinator at Child Helpline run
under the Child Development Department. PW-5, Sheila Naik
is the additional CDPO, Sirsi. PW-6 Poornima Hegde is the
Anganwadi worker, Sirsi. Their evidence reveal that on
receipt of anonymous call regarding a minor unmarried girl
giving birth to a child, they went to the house of prosecutrix
and her maternal grandparents. They came to know that
accused being the father of prosecutrix was responsible for
her pregnancy. Even though the testimonies of PW-4 to 6, is
hearsay so far as the actual incident is concerned, it prove
the relationship between the accused and the prosecutrix.
10. At the outset, it is relevant to note that even
though the accused is hailing from Shivamogga, after the
marriage, he stayed along with his family at Sirsi in the
outhouse of his parents-in-law, where according to the
prosecution, the incidents, wherein the prosecutrix was
raped by the accused has taken place. The fact that accused
along with his family, including the prosecutrix was staying in
the outhouse of his parents in law, is also not in dispute.
Even though the accused has tried to project that after the
marriage for sometime, his wife stayed with her in-laws at
Shivamogga, but as she could not adjust with them, she
shifted to her parents' place and they started living in the
outhouse consisting of a room, kitchen and bathroom.
11. For whatever reason, the fact remains that
accused along with his wife and children, including the
prosecutrix were staying in the outhouse of his parents-in-
law. This fact is deposed to by PWs-1, 3, 11 and also by PW-
12, who is no other than the wife of the accused and mother
of the prosecutrix. PW-18 is the first investigating officer
who has registered the case, visited the spot and drawn the
spot Mahazar at Ex.P2 and also prepared the rough sketch at
Ex.P3. The investigating officer has also got prepared sketch
through PW-20 Hanumanth Naik, Assistant Engineer, PWD as
per Ex.P30. These documents coupled with the evidence of
PWs-18 and 20 also prove that the accused along with his
family including the prosecutrix, was staying in the outhouse
of his parents-in-law.
12. Before going to the actual incident, it is necessary
to examine whether the prosecution has proved that as on
the date of incident prosecutrix was a minor. As per the
complaint averments as on the date of filing the complaint,
prosecutrix was aged 15 years. She was studying in 9th
standard at Ave Maria High School, Sirsi. During the course
of her evidence, she has deposed that her date of birth is
12.11.2004. Her maternal grandmother i.e, PW-3, Fatima B
Latanwale has also deposed that during 2018, prosecutrix
was studying in 9th standard. The evidence of PWs-4 and 5
reveal that on receipt of information that a minor girl has
given birth to a child, they went to the house of prosecutrix
and made enquiry. After the complaint was filed PW-8
Dr. Padmini Bhimsen has conducted medical examination of
the prosecutrix, at the instance of the investigating officer.
She has deposed that Ex.P6 is the report given by her,
wherein on the basis of information furnished by the
prosecutrix, she has noted her age as 15 years and as per
the opinion of the dental surgeon and radiological
examination, her approximate age was 15-16 years as on
the date of her examination.
13. PW- 14, Sujata J is the Headmistress of Ave Maria
High School Sirsi. She has deposed that on the request of
investigating officer, she has furnished the certificate
pertaining to the prosecutrix. The contents of the same are
taken from the register maintained in their school. As per the
same, the date of birth of the prosecutrix is 12.11.2004.
During her cross-examination, she has denied the suggestion
that on the instructions of the investigating officer, she has
given the information to suit the prosecution case. She has
also denied that Ex.P17 does not pertain to the prosecutrix.
14. In this case, the prosecution has also examined
PW-15 Ramachandra Vernekar, the Registrar of Birth and
Death. He has issued the birth certificate of prosecutrix as
per Ex.21 and according to the same the date of birth of the
prosecutrix is 12.11.2004. During cross-examination by the
defence, he has denied the suggestion that normally the
entry in the register of birth and death would be made on the
basis of oral and telephonic communication. He has also
denied that on the instructions of the investigating officer, he
has concocted Ex.P21. Now coming to Ex.P21, it is the
extract of register of birth. It is registered on 19.11.2004.
The place of birth of the child is noted as Pandit general
Hospital Sirsi, Uttara Kannada, Karnataka. The parents'
name of the child is given as Kulsumbi and Ubed M Saliha.
It's registration number also indicate that it is registered
during 2004. Through the testimonies of PWs-1, 14 and 15,
the prosecution has proved the date of birth of the
prosecutrix as 12.11.2004. Thus, as on the date of incident
i.e, 10.06.2018, the prosecutrix was aged 13 years 6
months.
15. It is the definite case of the prosecution that
accused being the father of the prosecutrix sexually
assaulted her, resulting in her pregnancy. The first incident
took place on 10.06.2018 and thereafter accused repeated
the same 5-6 times and gave threat to the prosecutrix, not
to reveal the same to anyone or else he would kill her
mother and brother, by poisoning them. Accused has taken a
defence that one Ayan was responsible for the pregnancy of
prosecutrix and in order to save him, accused is being made
scapegoat. PW-1 the prosecutrix, PWs-3 and 11 being the
maternal grandparents of the prosecutrix and PW-12, the
mother are the material witnesses to establish this fact. PWs-
1, 3 and 11 have supported the prosecution case. Prosecutrix
in clear and unequivocal terms has deposed that on
10.06.2018, when her mother went out to wash clothes and
her brother left the house to play, she and accused were
alone in the house, accused started touching her body,
including her private part and despite her resistance
committed sexual intercourse with her and gave threat not to
disclose it. He repeated this act 5-6 times and every time he
used to give threat that he would poison her mother and
brother, if she disclose this fact to anyone.
16. The testimonies of PWs-3 and 11 though not
direct on the aspect of sexual assault made on the
prosecutrix by the accused, is to the effect that they
observed that the prosecutrix has stopped coming to their
house and she used to remain silent. On one day, PW-3
called the prosecutrix to her house and lovingly enquired
about her behaviour. So speaking when she touched and
caressed her body, she found her tummy bulged. Therefore,
she took her to the hospital of PW-7 Dr Shanta Bhat. On
examination, the doctor revealed that prosecutrix is 7
months pregnant. Hearing this, PW-3 fell down and lost
consciousness. The evidence of PWs-1,3 and 11 reveal that
after returning from the hospital, both PWs-3 and 11
repeatedly enquired the prosecutrix as to who is responsible
for her pregnancy. However, PW-1 replied that Ayan is
responsible. In fact, she has deposed that it was the accused
who tutored her to give the said reply in case anyone enquire
about her condition.
17. Unfortunately, PW-12, though being the mother of
the prosecutrix has turned hostile and stated that prosecutrix
had become pregnant, but she did not know anything about
filing complaint against the accused and that she has not
given statement to the concerned police.
18. It is pertinent to note that even after coming to
know about the pregnancy of the prosecutrix, no complaint
was filed. In fact, the evidence of PWs-1, 3 and 11 reveal
that on 04.03.2019, when the prosecutrix suffered labour
pain, she was taken to TSS Hospital, Sirsi, where she gave
birth to a male child. Even after the birth of the child, no
complaint was filed against the accused. PW-10 Dr. Sharada
Satish was the Gynaecologist who attended the prosecutrix
and delivered her baby. Her evidence, more particularly her
cross-examination reveal that at the hospital, the mother of
the prosecutrix represented that prosecutrix is married and
her age was given as 18 years and her husband's name was
given as Ayan.
19. It appears if the true fact of prosecutrix being a
minor, unmarried is revealed and come to the knowledge of
the doctors, they may not attend to her and/or also insist
upon calling the police, the mother of the prosecutrix has
chosen to conceal the true facts. The evidence of PWs-1, 3
and 11 reveal that after discharge from the hospital when
the prosecutrix went back home along with the child, after
she was made to swear on God by touching Quran, she
disclosed the fact that accused was responsible for her
pregnancy. Even after the same, they have not chosen to file
any complaint.
20. The predicament of prosecutrix and her family
members in not filing the complaint is understandable. It
would expose the accused to criminal action and also
reputation of the family and the prosecutrix was at stake.
Despite the fact that they were not in a position to explain
how prosecutrix is a minor and unmarried has given birth to
a child, it appears the family of prosecutrix have tried to
protect the accused from prosecution. The fact came to light
only after the concerned officials of the Women and Child
Welfare Department, the Anganwadi workers and others got
an anonymous call about the prosecutrix being a minor and
unmarried giving birth to the child. They have visited the
house of the prosecutrix and on enquiry came to know about
the truth, after which complaint came to be filed.
21. The evidence of PW-4 Sunil Bhovi, PW-5 Sheela
Naik and PW-6 Poornima Hegde, though not directly on the
actual incident, when they approached the prosecutrix and
her family members, they came to know about it. After they
were counselled and advised, the complaint was filed.
22. As already noted during the examination-in-chief
PW-12 Kulsumbi, the mother of prosecutrix has not
supported the prosecution. However, during her cross-
examination by the learned HCGP, she has admitted that
during December 2018, when her mother enquired the
prosecutrix about her behaviour in not visiting her house and
being silent and carresed her body lovingly, the fact of
pregnancy of prosecutrix came to light. She has also
admitted that on 04.03.2019 prosecutrix was taken to the
hospital where she gave birth to son and after returning from
the hospital when they enquired prosecutrix about the
person responsible for her pregnancy, she revealed the name
of accused and also stated about the threat given by him.
She admitted about the visit of officials of child welfare
department leading to the filing of the complaint.
23. However, during her cross-examination by the
defence, she has given admissions favouring the defence
taken by the accused that he used to be angry with the
prosecutrix for moving with boys, coming home late and
always using the WhatsApp. However, though she has
admitted a suggestion made on behalf of the accused, that
once accused assaulted the prosecutrix on the ground that
she was going out and speaking to Ayan, she has denied the
suggestion that Ayan was living in their area and that
prosecutrix was in love with him.
24. DW-1 Mohammed Saifullah is the brother and
DW-2 Salma Ayub Khan is the sister of accused. Both of
them are residents of Ragigudda of Shivamogga. They have
deposed about the strained relationship between the accused
and his wife and that he was suffering from TB and for this
reason, he was made to sleep outside the house as his wife
was apprehensive that she may also contact the said
disease. They also deposed that from the accused, they
came to know that prosecutrix was in friendship with one
Ayan and it was objected to by the accused. DW-1 has gone
to the extent of saying that for a period of 15 days,
prosecutrix had left the house and after coming to know
about it, he advised the accused to file complaint, but he
expressed that he do not know how to file the complaint. He
has also deposed that after coming to know that prosecutrix
is seven months pregnant, he and others went to Sirsi and
enquired about it. Both PWs-3 and 11 disclosed that, one
Ayan is responsible for the same, but they refused to lodge
complaint.
25. During their cross-examination by the
prosecution, both DWs-1 and 2 have admitted that they have
no personal knowledge about the evidence given by them
and that it is based on the information furnished by the
accused. However, during the cross-examination of the
material witnesses examined for the prosecution, no
suggestions are made in consonance with the testimonies of
DWs-1 and 2. This itself goes to show that the DWs-1 and 2
are tutored to give evidence to save the accused from the
punishment. When DWs-1 and 2 are not having any personal
knowledge about the facts of the case and their evidence is
not of any help to the accused, the proper course available to
him was to give evidence. Of course, it would have been an
exercise in futile as the defence taken by the accused is false
and untenable.
26. Now the question would be who this Ayan is, and
whether any such person exists in reality. Time and again
suggestions are made to the material prosecution witnesses
that Ayan was responsible for the pregnancy of the
prosecutrix and he was a relative of PWs-3 and 11. However,
the accused has not clarified who the said Ayan is and how
he is related and where he was staying, etc. It appears the
name Ayan is invented by the accused to put the blame. In
fact, the testimony of PW-1 reveal that after her pregnancy
came to light during the seventh month, as tutored by
accused she gave the name Ayan as the person responsible
for her pregnancy. After her delivery, as no person by name
Ayan is there and that the prosecutrix is lying, PW-3 made
her to swear on Quran and came to know about the accused
being the culprit. Except suggesting that one Ayan is
responsible for the pregnancy of prosecutrix, the accused has
not come up with any concrete evidence as to the existence
of any person by that name.
27. As deposed by DW-1, if during the seventh month
of pregnancy of prosecutrix, he came to know from accused
that prosecutrix was in friendship with said Ayan and also
came to know that the mother and maternal grandparents of
prosecutrix were not ready to file complaint against him,
there was no impediment for the accused to file complaint
against the said Ayan or take any suitable action against
him. The very fact that he has not done so goes to show that
no person by name Ayan is in existence and it is a story
cooked up by the accused to escape from the Punishment.
Therefore, question of the prosecutrix or her mother or
maternal grandparents, trying to save Ayan and filing false
complaint against accused would arise.
28. On the contrary, the conduct of PWs-1, 3, 11 and
12 indicate that, in fact, they tried all their level best to
conceal the incident. Only after the officials of the Child
Welfare Department approached, they choose to file the
complaint. Fortunately, except PW-12, the rest have
supported the case of the prosecution. Even though PW-12 -
the mother of the prosecutrix has turned hostile, however,
her answers given during the cross-examination by the
prosecution clearly establish the case of the prosecution and
support and corroborate with it.
29. Now coming to the medical evidence led by the
prosecution to prove the allegations against accused. PW-9
Dr Vinayak Subrahmanyam is the medical officer who has
examined the accused and given report that there is nothing
to suggest that accused is incapable of performing sexual
act. He is also the one who collected the blood samples of
accused, prosecutrix and her male child for the purpose of
DNA testing and given evidence to that effect. Except making
former suggestions of denial, practically, there is no cross-
examination of this witness.
30. As already discussed, PW-8 Dr Padmini Bhimsen
has examined the prosecutrix and given report regarding her
age and the fact that She had recently given birth to a child,
and based on the examination of the prosecutrix she has
given report. She has also recorded the history given by the
prosecutrix wherein she has stated that it was the accused
who committed sexual assault on her, leading to her
pregnancy and giving birth to a male child. After examination
of DNA report, she has given final opinion. The evidence of
this witness is also not seriously challenged by the defence,
except making denials. Her evidence and report collaborate
with the DNA report of the accused, prosecutrix and her male
child.
31. Now coming to the DNA report. PW-13 Dr
Prashant R.G is the Senior Scientific Officer, DNA division,
FSL Madiwala, who has conducted the DNA profiling of the
blood samples of accused, prosecutrix and her male child. He
has clearly deposed that the samples were received by the
head of the department and assigned to him. He found the
seal on the blood samples intact and tallying with the sample
seal. Coding of the blood samples were done by the head of
the department and given to him. He subjected the coded
samples to DNA examination and submitted result to him for
generation of report. After the report was generated, it was
returned to him for his opinion. On examination of the DNA
report, he came to the conclusion that accused and the
prosecutrix are the biological parents of the male child born
to the prosecutrix. His report is marked as Ex.P16.
32. During his cross-examination, PW-13 has deposed
that 50% of the DNA of a person would match with the
father and 50% with the mother, he has also stated that the
DNA white chromosome of the child will match with its
grandfather. However, Autosonal DNA may or may not match
with its grandfather. But if the grandfather is the biological
father of the child, then the Autozonal DNA would match.
However, he has denied the suggestion that the police had
given him information that accused is the biological father of
the child of the prosecutrix and on that basis, he has given a
false report.
33. Thus, the DNA report conclusively establish the
case of the prosecution that it is the accused who is the
biological father of the male child given birth to by the
prosecutrix. It corroborate with the oral evidence of PW-1,
which is supported by the testimonies of PWs-3, 11 and 12
and also the other official witnesses. The DNA report falsify
the defence taken by the accused that one Ayan was the
person responsible for the pregnancy of prosecutrix and in
order to save him, accused is falsely implicated. Having
regard to the fact that accused is the father of the
prosecutrix, it is very absurd to suggest that the prosecutrix
his wife and their relatives have falsely implicated him for the
sake of a person called Ayan, who is not even in existence. If
accused is not the biological father of the child born to the
prosecutrix, the DNA report would not have been positive.
34. The trial court on meticulous examination of the
oral and documentary evidence placed on record has rightly
held that allegations against accused are proved beyond
reasonable doubt. The punishment imposed is also
proportionate to the gravity the offence. In fact, having
regard to the serious allegations made against the accused
who being a father of the prosecutrix has indulged in
sexually assaulting her, resulting in her pregnancy and giving
birth to a child, it could be held that the trial Court has taken
a lenient view in imposing the punishment. Consequently,
the appeal is liable to be dismissed, and accordingly the
following:
ORDER
(i) Appeal filed by the accused is dismissed.
(ii) The impugned judgment and order dated
15.03.2021 in Spl.C.No.28/2019 on the file
of Addl.District and Sessions Judge- FTSC-
1, U.K.Karwar (Special Court for trial of
cases filed under POCSO Act) is hereby
confirmed.
(iii) The Registry is directed to send back the
trial Court records along with copy of this
order forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
RR
