Karnataka High Court
The State Of Karnataka vs Mardansab Negalur on 2 May, 2025
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CRL.A No.100549/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 02ND DAY OF MAY 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100549 OF 2022
BETWEEN:
THE STATE OF KARNATAKA
BY MUNDAGOD POLICE STATTION,
DIST: UTTARA KANNADA, THROUGH
THE ADDL. STATE PUBLIC PROSECTOR,
ADVOCATE GENERAL OFFICE, HIGH COURT OF
KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B.GUNDAWADE, ADLL. SPP)
AND:
MARDANSAB NEGALUR S/O. MUKTHUMASAB NEGALUR,
AGE: 23 YEARS, R/O. INDUR, MUNDAGOD TALUK-
CHANDRASHEKAR
LAXMAN
KATTIMANI 581349, U.K.KARWAR DISTRICT.
Digitally signed by
...RESPONDENT
(BY SRI. MAHESH WODEYAR, AMICUS CURIAE;
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: High Court of
Karnataka, Dharwad
Bench
Date: 2025.05.23 11:31:58
+0530
PW1 AND PW14 (MOTHER OF PW1)-SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378 (1)
AND (3) OF CRPC SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.02.2022
PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE -FTSC-1
U.K KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER
POCSO) ACT IN SPECIAL CASE NO.11/2016 AND TO SET ASIDE THE
JUDGMENT AND ORDER DATED 16.02.2022 PASSED BY THE ADDL.
DISTRICT AND SESSIONS JUDGE -FTSC U.K. KARWAR (SPECIAL
COURT FOR TRIAL OF CASES FILED UNDER POCSO) ACT IN SPL.C.
NO. 11/2016 AND TO CONVICT THE RESPONDENT/ ACCUSED FOR
THE OFFENCE PUNISHABLE U/S 363,366,376 OF IPC AND UNDER
SECTIONS 4 AND 6 OF POCSO ACT 2012, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.04.2025, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No.100549/2022
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
The State has preferred this appeal against the
judgment of acquittal passed by the Additional District
and Sessions Judge, FTSC 1, Uttara Kannada, Karwar
[Special Court for Trial of Cases filed under POCSO
Act] in Special Case No.11/2016 dated 16.02.2022
[for short, "Trial Court"].
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. The brief facts leading to this appeal are
that Mundagod Police have submitted the charge
sheet against the accused for the commission of
offences punishable under Sections 363, 366, 376 of
the Indian Penal Code [IPC] and Sections 4 and 6 of
the Protection of Children from Sexual Offences Act
[for short "POCSO Act"]. It is alleged by the
prosecution that the accused within the jurisdiction of
Mundagod Police knowing that victim girl is a minor,
contacted CW8 through mobile and told her that he is
coming from Dandeli to Mundagod bus stand. The
accused had called victim girl to Mundagod bus stand
on 01.12.2015 at 01:30 p.m. persuaded victim girl
saying that they have to go to Bachaniki Dam, so
saying taken the victim girl in an auto belonged to
PW4 (CW12) to Bachaniki Dam. Their, the accused
taken victim girl in Chippada and accused committed
forcible sexual intercourse with her on and often and
thereby committed the offences punishable under
Sections 363, 366, 376 of IPC and Sections 4 and 6 of
the POCSO Act.
4. After filing the charge sheet, the learned
Sessions Judge has taken cognizance against the
accused for the alleged commission of offences and
case was registered in Special Case No.11/2016. On
hearing the charges, the Trial Court has framed the
charges against the accused for the offences
punishable under Sections 363, 366 and 376 of IPC
and Sections 4 and 6 of POCSO Act. Same was read
over and explained to the accused. Having understood
the same, the accused pleaded not guilty and claimed
to be tried.
5. To prove the case of the prosecution, in all,
17 witnesses were examined as PWs.1 to 17, 31
documents were marked as Exs.P1 to P31 and five
material objects marked as MOs.1 to 5. On closure of
prosecution evidence, the accused was questioned
under Section 313 of Cr.P.C. The accused has totally
denied the evidence of prosecution witnesses, but he
has filed his written statement. However, he has not
adduced any defence evidence on his behalf. Having
heard the arguments on both sides, the Trial Court
has acquitted the accused. Being aggrieved by this
judgment of acquittal, the State has preferred this
appeal.
6. The learned Additional State Public
Prosecutor Sri. M.B. Gundawade would submit that the
judgment and order of acquittal passed by the Trial
Court is contrary to law, facts of the case and
evidence on record. PW1 is the victim girl and she has
categorically stated regarding sexual act committed by
the accused. She has stated before the Court that she
has given a complaint through PW8. That in the cross-
examination of this witness, the defence has admitted
the presence of the accused at the place of incident on
relevant date and time. With regard to incident is
concerned, the suggestions put to the PW1 has clearly
denied by her. The same has not been properly
appreciated by the Trial Court at the time of analyzing
the evidence in the case and thereby erred in
discarding the evidence of PW1 victim girl and
acquitted the accused.
7. Further, it is submitted that, at para No.25
of the judgment, the Trial Court, after elaborately
discussing the evidence of PWs.1, 14 and 7 and
relying Exs.P13 to P15, has rightly come to the
conclusion that the victim was minor as on the date of
incident and also opined that, the POCSO Act attracts
the case of the prosecution. But at the same time, the
Trial Court has not appreciated the evidence and
documents in its proper perspective in the light of the
provisions of POCSO Act and thereby mechanically
passed the impugned judgment and order. Hence, the
same is not sustainable and liable to be set aside.
8. It is submitted that, PW2 was very much
present, at the time of recording the statement of the
victim by PW8 - CDPO and also she was very much
present at the time of filing compliant as per Ex.P6.
PW4 is the autorickshaw driver who has given lift to
the accused and victim girl on 01.12.2015 and he has
identified the accused and victim before the Court.
The said evidence is also corroborated with the
evidence of PW1 and that in the cross-examination
also he withstood the same evidence as stated in the
examination-in-chief. It is further submitted that the
Trial Court has failed to examine the materials placed
on record in accordance with law and facts and sought
for allowing this appeal.
9. As against this, the learned Amicus Curiae
Sri. Mahesh Wodeyar, would submit that the
prosecution has not produced the birth certificate
issued by the concerned authority. The Investigating
Officer has produced only Exs.P13 and P14 - School
Admission Register extracts and examined PW7 that
the date of birth of the victim was 27.11.1999. During
the course of cross-examination of PW7, he has
clearly admitted that the Police have not collected the
Declaration Form and Birth Certificate. During the
course of cross-examination of PW6, it was suggested
that at the time of commission of alleged crime, the
age of the victim was more than 18 years. But the
same was denied by this witness. However, the
prosecution has not obtained the Ossification Test
Certificate from the Medical Officer. The Medical
Officer has not taken any steps to determine the age
of the victim. However, without any legally acceptable
evidence, the Trial Court has held that the prosecution
has proved that as on the date of alleged incident,
victim was not minor, which is not sustainable under
law and that has to be re-examined by this Court.
With regard to other evidence is concerned, the Trial
Court has properly appreciated the evidence on record
in accordance with law and facts. On all these
grounds, the learned Amicus Curiae sought for
dismissal of the appeal.
10. We have examined the materials placed
before us.
11. Before adverting to the actual facts of the
case and appreciation of evidence, it is necessary to
refer the dictum of Hon'ble Supreme Court regarding
scope and power of Appellate Court in appeal against
the order of acquittal.
12. In the case of MOTIRAM PADU JOSHI &
OTHERS v. STATE OF MAHARASHTRA reported in
2018 SCC ONLINE SC 676, at paragraph 23 of the
judgment, it is held thus:
"23. While considering the scope of power
of the appellate court in an appeal against the
order of acquittal, after referring to various
judgments, in Chandrappa v. State of
Karnataka (2007)4 SCC 415, this Court
summarised the principle as under:-
"42. From the above decisions, in our
considered view, the following general
principles regarding powers of the
appellate court while dealing with an
appeal against an order of acquittal
emerge:
(1) An appellate court has full
power to review, reappreciate and
reconsider the evidence upon which
the order of acquittal is founded.
(2) The Code of Criminal
Procedure, 1973 puts no limitation,
restriction or condition on exercise
of such power and an appellate
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court on the evidence before it may
reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such
as, "substantial and compelling
reasons", "good and sufficient
grounds", "very strong
circumstances", "distorted
conclusions", "glaring mistakes",
etc. are not intended to curtail
extensive powers of an appellate
court in an appeal against acquittal.
Such phraseologies are more in the
nature of "flourishes of language" to
emphasise the reluctance of an
appellate court to interfere with
acquittal than to curtail the power of
the court to review the evidence and
to come to its own conclusion.
(4) An appellate court,
however, must bear in mind that in
case of acquittal, there is double
presumption in favour of the
accused. Firstly, the presumption of
innocence is available to him under
the fundamental principle of criminal
jurisprudence that every person
shall be presumed to be innocent
unless he is proved guilty by a
competent court of law. Secondly,
the accused having secured his
acquittal, the presumption of his
innocence is further reinforced,
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reaffirmed and strengthened by the
Sessions court.
(5) If two reasonable
conclusions are possible on the basis
of the evidence on record, the
appellate court should not disturb
the finding of acquittal recorded by
the Sessions court."
13. In the case of MUNISHAMAPPA &
OTHERS v. STATE OF KARNATAKA & CONNECTED
APPEALS reported in 2019 SCC ONLINE 69, at
paragraph 16 of the judgment it is held as under:
"16. The High Court in the present case was
dealing with an appeal against acquittal. In
such a case, it is well settled that the High
Court will not interfere with an order of
acquittal merely because it opines that a
different view is possible or even preferable.
The High Court, in other words, should not
interfere with an order of acquittal merely
because two views are possible. The
interference of the High Court in such cases is
governed by well-established principles.
According to these principles, it is only where
the appreciation of evidence by the Sessions
court is capricious or its conclusions are without
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evidence that the High Court may reverse an
order of acquittal. The High Court may be
justified in interfering where it finds that the
order of acquittal is not in accordance with law
and that the approach of the Sessions court has
led to a miscarriage of justice. ..."
14. In the case of HARI RAM & OTHERS v.
STATE OF RAJASTHAN reported in 2000 SCC
ONLINE 933, at paragraph 4 of the judgment, it is
observed thus:
"4. Mr. Sushil Kumar Jain, the learned
Additional Advocate General for the State of
Rajasthan on the other hand contended that the
power of the High Court while hearing an appeal
against an order of acquittal is in no way different
from the power while hearing an appeal against
conviction and the Court, therefore was fully
justified in re-appreciating the entire evidence,
upon which the order of acquittal was based. The
High Court having examined the reasons of the
learned Sessions Judge for discarding the
testimony of PWs 6 & 7 and having arrived at the
conclusion, that those reasons are in the realm of
conjectures and there has been gross miscarriage
of justice and the mis-appreciation of the evidence
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on record is the basis for acquittal, was fully
entitled to set aside an order of acquittal and no
error can be said to have been committed. It is
too well settled that the power of the High Court,
while hearing an appeal against an acquittal is as
wide and comprehensive as in an appeal against a
conviction and it had full power to re- appreciate
the entire evidence, but if two views on the
evidence are reasonably possible, one supporting
the acquittal and the other indicating conviction,
then the High Court would not be justified in
interfering with the acquittal, merely because it
feels that it would sitting as a Sessions court, have
taken the other view. While re- appreciating the
evidence, the rule of prudence requires that the
High Court should give proper weight and
consideration to the views of the learned Sessions
Judge. But if the judgment of the Sessions Judge
was absolutely perverse, legally erroneous and
based on wrong appreciation of the evidence, then
it would be just and proper for the High Court to
reverse the judgment of acquittal, recorded by the
Sessions Judge, as otherwise, there would be
gross miscarriage of justice...."
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15. In the case of STATE OF RAJASTHAN v.
KISTOORA RAM reported in 2022 SCC ONLINE 684,
at paragraph 8 of the judgment it is held as under:
"8. The scope of interference in an appeal
against acquittal is very limited. Unless it is
found that the view taken by the Court is
impossible or perverse, it is not permissible to
interfere with the finding of acquittal. Equally if
two views are possible, it is not permissible to
set aside an order of acquittal, merely because
the Appellate Court finds the way of conviction
to be more probable. The interference would
be warranted only if the view taken is not
possible at all."
16. In the case of MAHAVIR SINGH v. STATE
OF MADHYA PRADESH reported in (2016) 10 SCC
220, at paragraph 12 of the judgment, it is observed
thus:
"12. In the criminal jurisprudence, an accused
is presumed to be innocent till he is convicted
by a competent court after a full-fledged
Sessions, and once the Sessions court by
cogent reasoning acquits the accused, then the
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reaffirmation of his innocence places more
burden on the appellate court while dealing
with the appeal. No doubt, it is settled law that
there are no fetters on the power of the
appellate court to review, reappreciate and
reconsider the evidence both on facts and law
upon which the order of acquittal is passed.
But the court has to be very cautious in
interfering with an appeal unless there are
compelling and substantial grounds to interfere
with the order of acquittal. The appellate court
while passing an order has to give clear
reasoning for such a conclusion."
17. It is alleged by the prosecution that the
accused within the jurisdiction of Mundagod Police
knowing that victim girl is a minor contacted CW8
through mobile and told her that he is coming from
Dandeli to Mundagod bus stand. The accused had
called victim girl to Mundagod bus stand on
01.12.2015 at 01:30 p.m. persuaded victim girl to got
to Bachaniki Dam and come back, so saying taken
victim girl in an auto belonged to PW4 (CW12) to
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Bachaniki Dam. Their, the accused taken victim girl in
Chippada and accused committed forcible sexual
intercourse with her on and often and thereby
committed the offences punishable under Sections
363, 366, 376 of IPC and Sections 4 and 6 of the
POCSO Act.
18. To prove the guilt of the accused, the
prosecution has examined 17 witnesses as PWs.1 to
17 and 31 documents marked as Exs.P1 to P37. with
regard to the age of the victim is concerned, PW1
victim has stated in her evidence that her date of birth
is 27.11.1999. Ex.P1 - complaint does not reveal as to
the age of this victim. PW8 - Poornima Doddamani
who has prepared the complaint - Ex.P6, has not
disclosed the date of birth of the victim. But it shows
that the age of victim was 17 years. Ex.P13 - the
Admission Register extract reveals the date of birth of
the victim 27.11.1999. On the basis of this, PW7 has
issued the certificate Ex.P14. During the course of
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cross-examination of PW7, he has clearly stated that
the school authorities have not collected the
declaration form and birth certificate of the victim at
the time of admission. Further, he has clearly
admitted that he do not know on what basis the date
of birth of the victim entered as 27.11.1999.
19. At this juncture, it is necessary to refer to
the decisions in the case of Sunil vs. State of
Haryana reported in 2009 AIR SCW 7656, wherein
the Hon'ble Apex Court has held thus;
"Penal Code (45 of 1860), S. 376 - Rape-
Minority of prosecutrix - Prosecutrix in love with
accused and consenting party - Close and
careful determination of age of prosecutrix
become imperative - Clinical examination
showing that prosecutrix had well developed
secondary sex characters - Reports of Dental
Surgeon and Radiologist not produced through
prosecutrix was referred by doctor to them -
Admission form of school also not produced -
School leaving certificate produced was obtained
few days after incident - Father giving age of
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prosecutrix only approximately - Conviction of
accused on such evidence would be improper."
20. Further, in the case of Ashwani Kumar
Saxena vs. State of Madhya Pradesh reported in
AIR 2013 SC 553 has held that;
"Age determination inquiry contemplated
under the JJ Act and Rules has nothing to do with
an enquiry under other legislations, like entry in
service, retirement, promotion etc. There may be
situations where the entry made in the
matriculation or equivalent certificates, date of
birth certificate from the school first attended
and even the birth certificate given by a
corporation or a Municipal Authority or a
Panchayat may not be correct. But Court, J.J.
Board or a Committee functioning under the J.J.
Act is not expected to conduct such a roving
enquiry and to go behind those certificates to
examine the correctness of those documents,
kept during the normal course of business. Only
in cases where those documents or certificates
are found to be fabricated or manipulated, the
Court, the J.J. Board or the Committee need to
go for medical report for age determination."
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21. When there is no birth certificate or
matriculation certificate, it is the duty of the
Investigating Officer to collect Ossification Test
Certificate by the Medical Officer. In this case, the
Investigating Officer has not collected the
matriculation certificate or birth certificate or the
declaration form submitted by the parents of the
victim at the time of admission of victim to school.
The Investigating Officer has not offered any
explanation for non-production of the above said
documents and also failed to collect Ossification Test
Certificate. In the absence of these material pieces of
evidence, the evidence placed by the prosecution is
not sufficient to hold that the victim was the minor at
the time of alleged crime. Accordingly, the prosecution
has failed to prove that the victim was the minor at
the time of the alleged crime. In this regard, the Trial
Court has not properly appreciated the evidence on
record. On re-examination/ re-evaluation of the
- 20 -
evidence on record, we are of the opinion that the
prosecution has failed to prove that the victim was the
minor at the time of the alleged crime.
22. The genesis of the case is that on the basis
of the complaint filed by the complainant, the
Anganwadi Supervisor - Poornima Doddamani, who is
examined as PW8. While preparing Ex.P1 - compliant,
PW8 has not ascertained the age and date of birth of
the victim. During her cross-examination, she has
stated that accused was in the Police Station and
further she has clearly admitted that in Ex.P1 she has
not stated that the accused has enticed the victim and
kidnapped her. She has clearly admitted that the
victim or her parents have not lodged complaint to the
Police. During the course of cross-examination, she
has stated that:
"£Á£ÀÄ AiÀiÁjUÀÆ w½AiÀÄzÀAvÉ DgÉÆæAiÀÄ£ÀÄß ¦æÃw
ªÀiÁqÀÄwÛzÉÝ. CzÀ£ÀÄß w½zÀÄ ZÁ¸Á 11 E£ÀÄß FPÉ
ªÀÄĹèÃA ºÀÄqÀÄUÀ£À eÉÆvÉ ªÀÄzÀÄªÉ ªÀiÁrPÉÆAqÀÄ
©qÀÄvÁÛ¼É JAzÀÄ DUÀ vÀ£ÀUÉ CªÀªÀiÁ£ÀªÁUÀÄvÀÛzÉ JAzÀÄ
- 21 -
F jÃw PÉÃ¸ï ªÀiÁr¹ £À£ÀߣÀÄß ªÀÄzÀÄªÉ ªÀiÁr¹zÀ CAzÀgÉ
¸Àj.""
23. Therefore, CW11 has lodged the complaint.
The said admission of PW1 goes to show that she was
having secret love affair with the accused, CW11, who
is her uncle thought that she will marry a Muslim boy
and if she marries Muslim boy she will be defamed,
got lodged the present case and performed her
marriage. Further in her cross-examination she has
admitted that her father and mother started giving
harassment to her thinking that she may run away
with accused. PW1 has admitted that for that reason
her mother in collusion with her uncle. CW11, got
lodged the present case, sent the accused to the jail
and performed her marriage.
24. Further, PW1 in her cross-examination
admitted that her parents started giving harassment
to her thinking that she may run away with the
accused. Further, she has admitted that for that
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reason, her mother in collision with her uncle CW11
got lodged the present case, sent the accused to the
jail and performed her marriage.
25. PW14, the mother of the victim girl has
stated in her evidence that she and her husband's
brother CW11, came to Mundagod Police Station. In
the Police Station, accused and the victim girl was
there. Police told her that accused had taken victim
girl to Bachaniki Dam. She does not know why the
Police have brought the victim girl from Bachaniki
Dam and she has not given statement before the
Police. The prosecution treated this witness as hostile
witness and cross-examined. Even in her cross-
examination, the prosecution has failed to elicit any
favourable answer from her to substantiate the case of
the prosecution and even she has denied the
statement said to have been recorded by the
Investigating Officer under Section 161 of Cr.P.C.
which is marked as Ex.P28.
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26. PW15 - Nagaraja Iliger is a hearsay witness.
27. In the statement under Section 313 of
Cr.P.C., the accused has stated as under:
"1) I am the resident of Indoor Village Taluk
Mundgod and being born and brought up in
the said Village and residing with my
parents and the younger sisters in the same
Wada consists of good number of houses of
different communities. Though I belonged
to Muslim Community but Victim belonged
to Hindu Community was a major girl and
deeply loving me. Several times I advised
that I belonged to Muslim Community and
Victim belonged to Hindu Community and
the other Hindu people would oppose the
love marriage between the two and it is
also dangers to our life. In spite of it she
used to talk trough Mobile Phone with me
and several times expressed to get myself
married.
2) On 01-12-2015 during morning hours when
I was at Mangaluru the Victim girl phoned
to me stating that the parents and her
uncle were arranging her marriage against
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her wishes with a boy who is the resident of
Belagavi and requested me to come to
Mundgod immediately as she was inclined
to talk with me. Accordingly I came from
Magaluru to Mundgod Bus Stand and the
Victim girl being a major lady came to
Mundgod Bus Stop from her resident which
is about 8 KM from Mundgod Bus Stand by
Tempo. She wanted to discuss with me
something in relating to her proposed
marriage against her will with a boy a
Belagavi and there by she expressed to
narrate the same near by Bachanki Dam
and accordingly we both have proceeded to
that place by Auto Rickshaw. We seat at
Dam site and she has told me that her
parents including her uncle already decided
her marriage with a boy Belagavi against
her wishes. They know my love with the
Accused. I told her as I belonged to Muslim
Community the Hindu people will defiantly
opposed even the love marriage. I advised
to heed the request of her parents and
uncle and to get rid of my love. Then we
both were coming back to Mundgod Bus
Stand at that time the Police attached to
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Mundgod PS have taken both of us to
Mundgod PS and kept their in.
3) After enquiry of the Victim girl she
expressed the above facts in relating to
love affairs with the Police Officers and I
have also narrated the reasons for coming
to Mundgod. No Complaint was taken by
the Police as Victim refused to give any
Complaint muchless any allegations against
me. The parents and uncle of the Victim
were also secured to the Police Station. In
spite of it no Compliant was filed by them.
4) At that time some Hindu leaders came to
the Police Station and discussed with the
Police Officer in relating to us. Subsequently
the Police have secured Social Welfare
Officers and managed to file present case at
their instance making unjust allegations.
They have also discussed with the parents
and uncle unless and until I detained in jail
marriage of the Victim would not be
performed accordingly serious allegations
are made against me to wit that no bail be
granted by this Hon'ble Court. Thus I have
been arrested and detained in jail. After my
detention within 3 months, the marriage of
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the Victim is already celebrated with a boy
of Belagavi very hurriedly not even
informing to anybody.
5) Entire case is managed to be registered
against me at the instance of some leaders
belonged to Hindu Community influencing
the Police Officers Mundgod. The Victim and
her parents being influenced to depose
against me. I have not committed any
sexual acts as alleged and all those
allegations being created and influenced to
depose at the instance of Hindu leaders to
get rid of the love marriage between the
Victim and myself. In order to keep myself
in jail those serious allegations are made
against myself.
6) The Police have not collected my cloths as
alleged and all those Medical Certificates
are managed to be created against myself.
I humbly submit that I have not committed any
sexual acts upon the Victim girl and all those
allegations managed to be inbuilt at the instance of
some Hindu Leaders influencing the Police Officers
and Victim and Social Welfare Officers. Thus I am
- 27 -
innocent and may kindly be acquitted form the
charges in the ends of justice and equity."
28. In the case on hand, the victim has
admitted that false case is registered against the
accused. Victim has admitted that CW11 / PW15 who
is her uncle and her parents in collision with Police and
Child Welfare Officer have lodged false complaint only
in order to perform her marriage with a boy from
Belagavi. The admission of the mother of the victim
girl also substantiates the defence of the accused.
Accordingly, the accused has proved his defence by
preponderance of probabilities. The defence taken by
the accused is probable one in view of the admission
of the victim and mother of the victim. The victim girl
has clearly admitted that she has given the statement
under Section 164 of Cr.P.C. at the instance of Child
Welfare Officer. The victim and her parents, relatives
have not lodged the complaint. Complaint is lodged by
Child Welfare Officer at the instance of PW15 and her
- 28 -
father. The entire evidence placed before this Court
will establishe that absolutely there are no materials
to show that the accused has committed aggravated
sexual assault under Section 6 of the POCSO Act.
Moreover, we have also given finding to the fact that
the prosecution has failed to prove that the victim was
minor as defined under Section 2(d) of the POCSO
Act. Therefore, the question of committing the offence
under Section 6 of the POCSO Act by the accused does
not arise.
29. With regard to offence punishable under
Section 376 of IPC is concerned, the Trial Court has
properly appreciated the evidence on record in
accordance with law and facts. The findings and
conclusion of the Trial Court with regard to the
commission of offence under Section 376 of IPC are
sound, well-founded and based on a proper evaluation
of the evidentiary record. We do not find any legal
infirmity or error in the judgment under challenge.
- 29 -
Accordingly, the point framed for determination is
answered in the negative. In the result, we proceed
to pass the following:
ORDER
[i] Appeal is dismissed.
[ii] The judgment and order of acquittal
dated 16th February 2022 passed in
Special Case No.11 of 2016 by the
Additional District and Sessions Judge,
FTSC - 1, Uttara Kannada Karwar
(Special Court for Trial of Cases filed
under POCSO Act) is confirmed;
[iii] Registry is directed to send Trial Court
records along with a copy of this
judgment to the concerned Court;
[v] The Secretary, Legal Services
Committee, High Court of Karnataka
Dharwad Bench, Dharwad shall pay a
- 30 -
sum of Rs.10,000/- as remuneration for
rendering services to the learned Amicus
Curiae Sri. Mahesh Wodeyar.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
Rsh
CT:VH
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