Karnataka High Court
Anand S/O Durgappa Gollar vs The State Of Karnataka on 17 November, 2025
Author: R.Devdas
Bench: R.Devdas
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CRL.A No. 100313 of 2025
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IN THE HIGH COURT OF KARNATAKA, R
AT DHARWAD
DATED THIS THE 17TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
CRIMINAL APPEAL NO. 100313 OF 2025 (C)
BETWEEN:
ANAND S/O. DURGAPPA GOLLAR,
AGE: 22 YEARS, OCC:LABOURER,
R/O. MALAPRABHA NAGAR,
VADAGAONVI, BELAGAVI, PIN-590005.
...APPELLANT
(BY SRI. MAHANTESH S. HIREMATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally signed THROUGH CPI, APMC POLICE STATION,
by V N BADIGER
Location: High R/BY. ITS STATE PUBLIC PROSECUTOR,
Court of
Karnataka, HIGH COURT OF KARNATAKA, DHARWAD BENCH,
Dharwad Bench.
AT: DHARWAD, PINCODE-580001.
2. DEEPA W/O. CHANDRU GURANNAVAR,
AGE: 37 YEARS, OCC: TEACHER,
R/O. HOSUR, HUBLI, NOW AT: OLD MAIN ROAD,
RAMDEV GALLI, KANGARALI K.H,
BELAGAVI, PIN CODE-590001.
...RESPONDENTS
(BY SRI M. B. GUNDAWADE, ADDL. S.P.P. FOR R1;
SRI V. P. VADAVI, ADV. FOR R2)
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CRL.A No. 100313 of 2025
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. READ WITH 415(2) OF BNSS ACT, 2023, PRAYING TO
SET ASIDE THE CONVICTION AND SENTENCE IN RESPECT OF
ACCUSED IMPOSED BY ADDL. DISTRICT AND SESSIONS JUDGE
FTSC-1 BELAGAVI ON SPECIAL CASE NO.505/2023 BY HIS
JUDGMENT DATED ON 19.02.2025 AND ORDER OF SENTENCE
DATED ON 20.02.2025 FOR THE OFFENCE UNDER SECTIONS
452, 376AB, 506 OF IPC AND SECTION 4 OF THE POCSO ACT TO
MEET THE ENDS OF JUSTICE.
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED ON 28.10.2025, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI)
1. The accused in Special Case No.505/2023 on the file
of learned Additional District and Sessions Judge, FTSC-I,
Belagavi (for short, 'the trial court') has maintained this appeal
under Section 374(2) of the Cr.P.C. read with Section 415(2) of
the B.N.S.S.. praying to set aside the judgment of conviction
dated 19.02.2025 holding him guilty of the offences punishable
under Sections 452, 376AB and 506 of IPC and Section 4 of the
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POCSO Act, 2012 and the order of sentence dated 20.02.2025
passed therein, in the ends of justice.
2. The parties to this appeal are hereinafter referred to,
as per their ranking before the trial court.
3. Brief facts leading to this appeal are as under:
On 03.08.2023 at 4.00 p.m., a complaint came to be
lodged by a lady with APMC Yard Police of Belagavi city alleging
that the accused herein has committed sexual assault on her
minor daughter by trespassing into her house and that the
accused has also threatened the victim with dire consequences if
she revealed the incident to anyone else. Pursuant to such a
complaint, APMC Yard Police registered a case against the
accused in Crime No.123/2023 for the offences punishable under
Section 4 of the POCSO Act and Section 506 of IPC and took up
investigation in the case. They apprehended the accused on the
same day and subjected him for interrogation. Later, on
completion of the investigation, the jurisdictional police laid a
charge sheet against the accused for the offences under Sections
452, 376AB and 506 of IPC and Section 4 of the POCSO Act.
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3.1. Based on the prosecution papers, the trial court
took cognizance of the alleged offences, secured the presence of
the accused from custody, supplied him copies of the prosecution
papers in compliance with Section 207 of Cr.P.C. and then, after
hearing both side, framed charge against the accused for the
alleged offences. The accused pleaded not guilty and claimed to
be tried. As such, the trial court called upon the prosecution to
adduce their evidence.
3.2. During the trial, the prosecution examined ten
witnesses and got marked the documents at Ex.P1 to Ex.P46 and
the material objects at M.O.1 to M.O.15. Afterwards, the trial
court recorded the statement of the accused under Section 313
of Cr.P.C., wherein he denied all the incriminating evidence
appearing against him. But, he has not adduced any defense
evidence. Thereafter, the trial court heard the arguments of both
side and passed impugned judgment holding that the accused is
guilty of the alleged offences and passed the sentence as it
deemed fit in the facts and circumstances of the case. Being
aggrieved, the accused has directed this appeal challenging the
impugned judgment of conviction and sentence.
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4. During the course of argument, Sri Mahantesh S.
Hiremath, learned Counsel for Accused has vehemently
submitted that the impugned judgment is erroneous and
perverse and it is contrary to well settled principles of law. He
has submitted that in spite of clear cut contradictions in the case
put forth by the prosecution, the trial court proceeded to hold
him guilty for the alleged offences, without properly appreciating
the facts and circumstances of the case and the evidence
available on record. He has contended that though the materials
on record do not prove commission of penetrative sexual assault
on the victim, the trial court proceeded to hold the accused guilty
of the offences punishable under Section 376AB of IPC and
Section 4 of the POCSO Act. According to him, at the most the
trial court could have held the accused guilty for the offences
under Sections 7 and 8 of the POCSO Act and not for any other
offence. Hence, he prayed to allow the appeal and set aside the
impugned judgment of conviction and sentence, in the ends of
justice.
5. Per Contra, Sri M.B.Gundawade, learned Additional
State Public Prosecutor for the State, supported the findings and
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the conclusion of the trial court and submitted that the trial court
is justified in holding the accused guilty of the alleged offences.
He contended that there is overwhelming evidence on record,
placed by the prosecution in support of their case and they have
proved the guilt of the accused beyond reasonable doubt. As
such, he submitted that there is no reason to take a different
view in the case than the one taken by the trial court and prayed
for dismissal of the appeal.
6. Sri V.P.Vadavi, learned Counsel appearing for the
defacto-complainant/ Respondent No.2 has also supported the
findings recorded by the trial court and prayed for dismissal of
the appeal.
7. Before proceeding further, it would be proper to have
cursory look at the evidence adduced by the prosecution in the
case. The prosecution has examined the de-facto complainant,
who is the mother of the victim as PW-1. In her evidence, PW-
1 has stated that on 03.08.2023 at 10.00 a.m. when she left her
home for duty, the victim and her son was in the house and on
that day at 12.20 p.m., the victim came to her work place and
narrated the incident. She has stated that thereafter she tried to
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search for the accused and as he was not found, she went to the
Police Station and lodged a complaint as per Ex.P1. PW-1 has
also deposed regarding further action taken by the jurisdictional
Police in connection with the investigation in the case.
8. PW-2 Sri Siddappa Kadappa Malagi and PW-3 Sri
Prashant Nagoji Patil are said to be the panchas to the
panchanamas drawn as per Ex.P2, P6 and P7. During their
evidence, PW-2 and PW-3 have admitted their signatures found
in concerned panchanamas and the rough sketch marked at
Ex.P3. However, they have denied their presence at the time of
these procedures and claimed that no article had been seized in
their presence. The prosecution has treated these witnesses as
hostile and subjected them for cross-examination. Even then,
these witnesses have reiterated that they were not present
during these mahazars.
9. PW-4 Sri Chandrakant Prabhakar More and PW-5 Sri
Yallappa Yashwant Balekundri are said to be the neighbors of the
victim. During their evidence, both these witnesses have stated
that they had no information about the alleged incident and that
the police had not questioned them in connection with the said
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incident. The prosecution has treated them as hostile witnesses
and subjected them for cross examination. Even then, the
prosecution has not succeeded in eliciting any favourable answer
from their mouth, supporting the case of the prosecution.
10. The prosecution has examined two more witnesses
namely Sri Rama Yallappa Bijapure and Sri Gurappa Durgappa
Gollar as PW-6 and PW-7 respectively. In his evidence, PW-6
has stated that he had engaged the accused and PW-7 to the
work of picking up the garbage from Kangrali K.H. of Belagavi.
Similarly, PW-7 has stated that PW-6 had engaged him and the
accused to pick up the garbage from Kangrali K.H. of Belagavi.
However, both of them claimed that they he had no information
about the alleged crime and that the Police had not enquired
them in this regard.
11. The prosecution has examined the victim girl as
PW-8. In her deposition, PW-8 has narrated in detail about the
incident as well as the information given to her mother and the
police. She has also stated about she having been taken to the
hospital and before the judge at Belagavi.
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12. PW-9 is the doctor before whom the victim was
produced for medical examination. In his evidence, PW-9 has
stated that on 03.08.2023 at 6.30 p.m., APMC Police had
produced the victim girl before him with a history of sexual
assault. PW-9 has stated that after examining her, he had got
her examined through the dentist, radiologist, psychiatrist and
gynecologist, obtained their reports and then he gave a
provisional report as per Ex.P17. He has also stated that after
going through the RFSL Report, he had given a final report as
per Ex.P19.
13. PW-10 is the Investigating Officer in the case. In his
evidence, PW-10 has stated that PW-1 had lodged a complaint
before CW-23, where upon CW-23 registered a case in Crime
No.123/2023, forwarded FIR to the concerned and then sent the
victim girl to BIMS Hospital, Belagavi for medical examination.
PW-10 has stated that thereafter he received the record of the
case and conducted entire further investigation in the case. PW-
10 has narrated in detail about various steps taken by him
during the course of investigation till filing of the charge sheet.
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14. We have carefully considered the submissions made
on either side and perused all the materials available on record.
In the light of the contentions put forth before this Court, the
following points would arise for our consideration:
(i) Whether the trial court is justified in holding that
the prosecution has proved the guilt of the
accused on all counts, beyond reasonable doubt?
(ii) Whether impugned judgment of conviction and
sentence needs interference by this Court?
15. This Court being the first appellate court, We have
cautiously re-examined the entire evidence adduced before the
trial court in the case and independently re-appreciated all the
materials available on record in the backdrop of the legal
principles governing the field and arrived at independent
conclusion regarding correctness or otherwise of the findings
recorded by the trial court. Our answer to the above referred
points is partly in the affirmative, for the following reasons.
16. It would be beneficial to refer to the legal position
before proceeding to appreciate the contentions of the parties
and the materials available on record. In catena of decisions it is
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held that the sole testimony of the prosecutrix/victim can form
the basis for conviction in cases of sexual assault including rape,
provided it inspires confidence and is free from serious doubt or
material inconsistencies. The courts should remain alert for
fabrication or false implication, especially where there are
material inconsistencies.
16.1 In State of Himachal Pradesh Vs Manga Singh,
[(2019) 16 SCC 759] Hon'ble Supreme Court of India has
reaffirmed the legal principle that the conviction can be sustained
on the sole testimony of the prosecutrix, if it inspires confidence
and no corroboration be required unless there are compelling
reasons which necessitate the courts to insist for corroboration of
her statement. Corroboration of the testimony of the prosecutrix
is not a requirement of law, but a guidance of prudence under
the given facts and circumstances. In this decision it is
specifically observed that corroboration is not a sine qua non for
conviction in a rape case and as a general rule, there is no
reason to insist on corroboration except from medical evidence.
It has further held that having regard to the circumstances of the
case, medical evidence may not be available and in such cases,
solitary testimony of the prosecutrix would be sufficient to base
the conviction, if it inspires the confidence of the court.
16.2 In Raju @ Umakant Vs State of Madhya Pradesh
(2025 SCC OnLine SC 997) Hon'ble Supreme Court of India
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has held that a woman or a girl subjected to sexual assault is not
an accomplice but a victim of another person's lust and it will be
improper and undesirable to test her evidence with suspicion. All
that the law mandates is that the Court should be alive to and
conscious of the fact that it is dealing with the evidence of a
person who is interested in the outcome of charge leveled by her
and if after keeping that aspect in mind if the Court is thereafter
satisfied that the evidence is trustworthy, there is nothing that
can stop the Court from acting on the sole testimony of the
prosecutrix.
16.3 In addition to the above, this case has been
registered under the provisions of IPC and POCSO Act. Sections
29 and 30 of the POCSO Act permit the Court to draw a legal
presumption of guilt and mens rea against the accused for the
offences under Sections 3,5,7 and 9 of the Act. The Court is
required to apply these presumptions once the prosecution
proves the foundational facts of the case beyond reasonable
doubt. The foundational facts primarily include the age of the
victim as on the date of crime and the commission of alleged
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offences. Once these basic facts are established, the burden
shifts to the accused, to prove his innocence.
17. Coming to the case on hand, the case of the
prosecution is that on 03.08.2023 at 12.00 p.m. when the victim
girl was in her house along with her younger brother, the
accused came near their house for collecting garbage and then
the accused sent the younger brother of the victim to the shop to
buy shampoo under the guise that he wants to wash his hands
and legs. Later, he asked the victim to give some water to drink
and when the victim went inside her house to bring the water,
the accused entered the house and closed the door and windows,
hugged and kissed the victim, squeezed her chest, when the
victim started screaming the accused caught hold of her mouth
tightly, removed her pant, inserted his private part into the
private part of the victim and committed forcible sexual
intercourse with her. It is further case of the prosecution that on
hearing the sound of returning of the younger brother of the
victim, the accused left the place by giving life threat not to
reveal the incident to anyone else.
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18. The materials on record go to show that though the
prosecution has examined altogether 10 witnesses in the case,
the depositions of PW-4 to PW-7 are not helpful in proving the
guilt of the accused. The prosecution is mainly relying on the
testimony of the victim, her mother and the doctor to prove the
accusation made against the accused.
19. It is the case of prosecution that the victim was aged
about 11 years at the time of the incident. In the complaint
marked at Ex.P.1 the age of the victim is mentioned as 11 years
and that she was studying in 5th standard at the relevant point of
time. During her evidence, the de-facto complainant i.e. PW-1
has reiterated this aspect. The prosecution has examined the
victim as PW-8. In her deposition PW-8 has stated that she is 11
years old and that her date of birth is 21-11-2012. During the
cross examination of PW-1 or PW-8, the accused has not raised
any dispute regarding the age of the victim at the relevant point
of time. Added to the above, the prosecution has produced
documents such as study certificate at Ex.P-34 and medico-legal
examination report pertaining to the victim at Ex.P-17. In Ex.P-
34 the date of birth of the victim is shown as 21.12.2012. In
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Ex.P-17 the doctor concerned, based on dental land skeletal
report, has opined about the approximate age of the victim as
11-12 years. Thereby, it becomes crystal clear that the victim
was under the age of 12 years as on the date of incident i.e.
03.08.2023.
20. Now, the crucial aspect for consideration would be
the proof regarding commission of penetrative sexual assault on
the victim. Admittedly, the mother of the victim was not an eye-
witness to the incident. She has deposed before the court in this
regarding the incident based on the information said to have
been narrated by her daughter i.e. the victim.
21. The victim - PW-8, during her examination-in-chief
has stated that on 03.08.2023 at 12.00 p.m. when she was in
her house along with her younger brother, the accused came to
their house to collect the garbage and then he sent her younger
brother to buy shampoo under the guise of washing his hands
and legs and asked her to give water to drink. She has stated
that when she went inside the house to bring the water, the
accused followed her, closed the door of the house and
committed sexual assault on her. She has stated that on hearing
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the sound of returning of her younger brother, the accused left
the place by giving threat of dire consequence if she revealed the
incident to anyone else.
22. In her evidence, PW-8 has also stated that after the
incident she had gone to the place of work of her mother and
informed her mother about the incident. The said statement of
PW-8 finds corroboration from the deposition of PW-1 and other
materials on record such as lodging of a complaint as per Ex.P1,
taking PW-8 for medical examination and the history of the
incident mentioned in medico-legal examination report pertaining
to the victim, which is marked at Ex.P17.
23. Learned Counsel for Accused has strenuously
submitted that the materials on record do not suggest
commission of a penetrative sexual assault on the victim but at
the most, an act of sexual assault. In this regard, learned
Counsel for Accused has drawn the attention of this Court to the
statements made by the victim before the trial court on oath as
well as the contents of the documents marked at Ex.P12, Ex.P13
and Ex.P16. On the other hand, learned Additional State Public
Prosecutor, relying on relevant provisions of IPC and POCSO Act,
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vigorously submitted that even the slightest penetration is
sufficient to make out an offence of rape and to bring the act
under Section 376AB of IPC and Section 4 of the POCSO Act. In
view of the above noted rival contentions of the parties, it
requires for Court to find out whether the act of the accused
amounts to penetrative sexual assault or mere sexual assault.
24. Perusal of the deposition of PW-8 goes to show that
during her examination-in-chief she has merely stated about the
accused having kissed her and rubbed his private part to her
private part apart from giving a life threat. PW-8 has not stated
anything about the accused having committed forcible sexual
intercourse with her or even having removed her clothes before
rubbing his private part to her private part. The relevant portion
of her testimony, reads as under :
"DgÉÆævÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è PÀ¸À PÉüÀ®Ä §A¢zÀÝ. £Á£ÀÄ
¥ÁvÉæ vÉƼÉzÀÄPÉÆAqÀÄ ªÀÄ£ÉAiÀÄ M¼ÀUÀqÉ ºÉÆÃzÁUÀ DgÉÆævÀ £À£Àß
vÀªÀÄä¤UÉ PÉÊ PÁ®Ä vÉƼÉAiÀÄ®Ä ±ÁA¥ÀÆ vÉUÉzÀÄPÉÆAqÀÄ ¨Á JAzÀÄ
CAUÀrUÉ PÀ¼ÀÄ»¹zÀÝ. £ÀAvÀgÀ £À£ÀUÉ PÀÄrAiÀÄ®Ä ¤ÃgÀÄ ¨ÉÃPÀÄ JAzÀÄ
PÉýzÀ PÁgÀt £Á£ÀÄ ¤ÃgÀÄ vÀgÀ¯ÉAzÀÄ M¼ÀUÉ ºÉÆÃzÁUÀ DvÀ £À£Àß
»AzÉ §AzÀÄ ¨ÁV®£ÀÄß ªÀÄÄaÑ DvÀ£À £À£Àß ¨Á¬ÄUÉ ºÁQzÀÝ, £ÀAvÀgÀ
DvÀ£À ªÀÄÆvÀæ «¸Àdð£ÉAiÀÄ eÁUÀªÀ£ÀÄß £À£Àß ªÀÄÆvÀæ «¸Àdð£ÉAiÀÄ eÁUÀPÉÌ
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ºÁQzÀÝ. £À£Àß vÀªÀÄä §gÀĪÀ ±À§Ý PÉý £À£ÀߣÀß ©nÖzÀÝ. £ÀAvÀgÀ DvÀ
¸ÀzÀj «ZÁgÀªÀ£Àß AiÀiÁjUÁzÀgÀÆ ºÉýzÀ°è ¤£ÀߣÀß ¸Á¬Ä¸ÀÄvÉÛãÉ
JAzÀÄ ¨ÉzÀjPÉ ºÁQzÀÝ."
25. The prosecution has got marked the statement of the
victim recorded under Section 164 of the Cr.P.C. at Ex.P16. The
contents of Ex.P16 go to show that during her such statement,
the victim has unequivocally stated that though the accused had
tried to remove her pant, she did not allow him to do so.
26. At this stage, it is relevant to note that even the
medical reports i.e., the provisional and final, marked at Ex.P17
and P19, indicate only commission of sexual assault on the
victim than penetrative sexual assault as contended by the
prosecution. It is because the final opinion marked at Ex.P19
stated that hymen was intact and no injuries were noted on
genetalia of the victim.
27. Learned Additional State Public Prosecutor relying on
the contents of Ex.P17 and Ex.P19 as well as the finding
recorded by the trial court vehemently submitted that the
seminal stains detected in the pant/leggings of the victim and
the blood stains detected in her innerwear proves commission of
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penetrative sexual assault on the victim. It is true that Ex.P19
contains a mention about detection of seminal stain in the
pant/leggings and blood stain in the innerwear of the victim.
However, it is to be noted in the very same document it is noted
that the victim has attended menarche and opined the victim's
genetalia being the source of blood stains found in her
innerwear. Further, in Ex.P17 it is opined that an attempt of
penetration, resulting in seminal ejaculation on the pant/leggings
of the victim.
28. A careful analysis of medical evidence adduced in the
case would indicate self contradictions. During his evidence PW-9
has stated that as per the report of the Gynecologist the hymen
of the victim was torn. Whereas, Ex.P19 contains a specific
mention that hymen was intact. Further, in Ex.P17 while
mentioning relevant medical history in column No.14 it is noted
that menarche not attained. Whereas, in Ex.P19 it is stated that
the victim has attended menarche. In Ex.P19 it is further
mentioned that an attempt of penetration by any object resulting
in small minor injury causing bleeding, cannot be ruled out. It is
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nobody's case that there was any attempt on the victim to
penetrate her with any object, resulting in small minor injury.
29. Similarly, the document marked at Ex.P24 contains a
mention about rubbing of penis against labia majora of the
victim. Based on page numbers found in this document, it seems
to be the part of Ex.P17. The above noted reference is found at
the Column No.15 (vii) while recording the description of incident
in the words of the narrator. As per its contents such a narration
was given by the WPC, probably who accompanied the victim
during the medical examination.
30. The materials on record indicate that during the
evidence of PW-8, the prosecution has even got marked the
statement and further statement of the victim, which were
recorded under Section 161 of Cr.P.C., as Ex.P12 and Ex.P13
respectively. First of all, these statements recorded under
Section 161 of Cr.P.C have no substantive evidentiary value and
its restricted use is solely for contradicting or impeaching a
witness's testimony. As such there is no question of considering
these statements for the purpose of corroboration in the case.
Even otherwise, if we carefully analyze these documents, a
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genuine doubt arises regarding reliability of the version found in
further statement marked at Ex.P.13. It is because the
statement of the victim marked at Ex.P12 recorded on
05.08.2023 does not contain any mention about the accused
having removed or attempted to remove her clothes while
committing the sexual assault. The statement of the victim under
Section 164 of Cr.P.C. was recorded on 10.08.2023, wherein she
has categorically stated that she did not allow the accused to
remove her clothes. The further statement marked at Ex.P13
bears the date of such statement as 25.09.2023, which is after a
gap of more than one month from the date of statement
recorded under Section 164 of Cr.P.C. Thus, in our considered
view the prosecution has failed to prove the accusation of
penetrative sexual assault on the victim beyond reasonable
doubt. Accordingly, it is held that the finding recorded by the
trial court regarding commission of penetrative sexual assault on
the victim is not sustainable.
31. The victim has emphatically deposed before the trial
court regarding the acts committed by the accused, which
definitely amounts to sexual assault on her as well as trespass
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into her house and having given life threat to her before leaving
the place. The statements made by the victim on oath indicate
that she has deposed naturally, which inspires confidence to
accept her version as genuine and reliable. Added to it, the
evidence of PW-1, PW-9 and the medical opinions marked at
Ex.P17 and Ex.P19 corroborate her version. Thereby the
prosecution has proved the basic foundation for invoking the
legal presumption available under Section 29 of the POCSO Act.
On the other hand, the accused has neither disputed the
statements of the victim made on oath nor come up with any
explanation in his defense. Thereby the accused has failed to
rebut the presumption available to the prosecution under
Sections 29 and 30 of the POCSO Act.
32. The materials on record clearly go to show that the
victim was aged below 12 years as on the date of the crime. As
per Section 9(m) of the POCSO Act, the sexual assault
committed on the child below 12 years falls under the category
of aggravated sexual assault, which is punishable under Section
10 of the POCSO Act. Under the said provision the offence of the
aggravated sexual assault is punishable with imprisonment of
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either description for a term which shall not be less than 5 years,
but which may extend to 7 years and with fine.
33. Undisputedly, the accused herein was aged about 20
years and he was working as a labour in garbage picking vehicle
at the relevant point of time. The thumb impressions of the
accused person in the plea and the statement recorded under
Section 313 of Cr.P.C., gives an impression that he is an illiterate
and from poor family. The age of the accused and his
background including the financial condition are definitely the
mitigating circumstances, to be taken note of while dealing with
issue of sentence. Thus, taking into consideration all relevant
factors including absence of any injury on the person of the
victim, this Court opines that it would be proper to sentence the
accused to undergo rigorous imprisonment for a term of 5 years
and to pay fine of Rs.5,000/- for the offence under Section 9 of
the of the POCSO Act, punishable under Section 10 of the POCSO
Act.
34. In the impugned judgment, the trial court has held
the accused guilty even for the offence under Section 452 of IPC
and sentenced him to undergo rigorous imprisonment for 7 years
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and to pay fine of Rs.5,000/- for the said offence. First of all,
the facts of the case go to show that Section 452 of IPC is not all
applicable. It is because Section 452 of IPC deals with a case of
house trespass after preparation for hurt, assault or wrongful
restraint. Whereas, in the present case the prosecution has not
alleged anything about the accused having committed the
trespass into the house of the victim by making preparation for
hurt, assault or wrongful restraint. As such it is to be held that
the act of trespass committed by the accused falls under Section
451 of IPC. The offence under Section 451 of IPC is punishable
with imprisonment of either description for a term which may
extend to two years and a fine. Hence, this Court opines that it
would be proper to award rigorous imprisonment of one year and
a fine of Rs.1,000/- to the accused for the offence punishable
under Section 451 of IPC.
35. The trial court has awarded simple imprisonment of
two years and a fine of Rs.1,000/- to the accused for the offence
punishable under Section 506 of IPC. Taking into consideration
the facts and circumstances of the case and the manner in which
the offence was committed, this Court opines that there is no
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need of interfering with the sentence imposed by the trial court
for the offence under Section 506 of IPC.
36. We find an error committed by the Investigating
Officer and the trial court in failing to invoke correct provision of
law while laying the charge sheet and at the time of framing the
charge respectively. It is the definite case of the prosecution that
the victim was aged 11 years at the time of crime. Accordingly,
the charge sheet was laid against the accused by invoking
Section 376AB of IPC. However, in the said charge sheet, Section
4 of the POCSO Act has been invoked against the accused along
with Section 376AB of IPC. Section 5(m) of the POCSO Act
makes it clear that whenever an offence of penetrative sexual
assault is committed on a child below 12 years, such an offence
falls under the category of aggravated penetrative sexual
assault, which is punishable under Section 6 of the POCSO Act.
This aspect has not been noticed by the trial court either at the
time of framing charge or at the time of pronouncing the
judgment in the case. On the other hand, the trial court has
proceeded to hold the accused guilty for the offences under
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Section 376AB of IPC and Section 4 of the POCSO Act and
passed an order of sentence separately for these offences.
37. In Soundarajan Vs State represented by the
Inspector of Police, Vigilance Anti Corruption, Dindigul
(Criminal Appeal No.1592/2022, DD 17.04.2023) Hon'ble
Supreme Court of India has held that under Section 464 of
Cr.P.C., omission to frame a charge or any error in charge is
never fatal unless in the opinion of the Court, a failure of justice
has in fact been occasioned thereby. As already pointed out, in
this case the prosecution has invoked Section 376AB of IPC,
which relates to commission of rape on woman below 12 years of
age. As such, it is to be held that the accused was not mis-
lead on account of improper framing of the charge i.e. non-
invoking of Sections 5(m) and 6 of the POCSO Act in the case.
Thus, the materials on record indicate that the accused has not
suffered any prejudice on account of such mistake. It is also
relevant to note that the Accused has not raised this aspect as
one of the grounds to challenge impugned judgment.
38. In the result, this Court proceeds to pass the
following :
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ORDER
(I) The appeal is allowed in part.
(II) The judgment of conviction dated 19.02.2025
and order of sentence dated 20.02.2025 passed
in Special Case No.504/2023 on the file of the
Additional District and Sessions Judge, FTSC-I,
Belagavi is modified.
(III) Consequently, the accused is held guilty for the
offences under Section 9 of the POCSO Act and
Section 451 of IPC apart for the offence under
Section 506 of IPC as held by the trial court.
(IV) The accused is sentenced to suffer rigorous
imprisonment for a period of 5 years and to pay
fine of Rs.5,000/- for the offence under Section
9 read with Section 10 of the POCSO Act and
rigorous imprisonment for a period of one year
and fine of Rs.1,000/- for the offence under
Section 451 of IPC. In default of payment of the
fine amounts, he shall undergo simple
imprisonment for a period of six (6) and three
(3) months respectively.
(V) The sentence imposed by the trial court for the
offence under Section 506 of IPC is maintained.
(VI) All these sentences shall run concurrently.
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(VII) The accused is entitled for the benefit of set off
under Section 428 of the Cr.P.C./Section 468 of
BNSS.
(VIII) The accused is entitled for refund of excess fine
amount paid/deposited by him, if any, in
pursuance of impugned judgment.
(IX) The registry is directed to furnish a free copy of
this judgment to the accused through concerned
prison authority, forthwith.
(X) The registry is directed to return trial court
record to concerned court along with a copy of
this judgment.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
VB, CKK /CT-AN
