Karnataka High Court

Srikantha @ Ambu vs The State Of Karnataka on 20 November, 2025

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                                                                     NC: 2025:KHC:48058
                                                                  CRL.A No. 686 of 2017


                       HC-KAR




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 20TH DAY OF NOVEMBER, 2025

                                                   BEFORE
                              THE HON'BLE MR. JUSTICE G BASAVARAJA
                                CRIMINAL APPEAL NO. 686 OF 2017 (C)
                       BETWEEN:

                       SRIKANTHA @ AMBU
                       S/O JAVARAPPA
                       AGED ABOUT 21 YEARS
                       R/AWT NO.6, 1ST CROSS
                       1ST MAIN ROAD
                       IN FRONT OF COUNCILLOR
                       SHARADAMMA'S HOUSE
                       ABBIGERE, BENGALURU CITY - 560 090.
                                                                            ...APPELLANT
                       (BY SRI. K B K SWAMY.,ADVOCATE)
                       AND:

                       THE STATE OF KARNATAKA
                       REPRESNTED BY
                       RAJAGOPALA NAGARA POLICE STATION
Digitally signed by
LAKSHMINARAYAN N
                       BENGALURU CITY - 560 058
Location: HIGH COURT
OF KARNATAKA
                       REPRESENTED BY
                       STATE PUBLIC PROSECUTOR
                       HIGH COURT BUILDING
                       BANGALORE - 560 001.
                                                                           ...RESPONDENT
                       (BY SRI. B. LAKSHMAN, HCGP)
                              THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C
                       PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
                       10.03.2017 AND SENTENCE DATED 14.03.2017 PASSED BY
                       THE    LIV   ADDL.   CITY   CIVIL    AND   S.J.,   BANGALORE   IN
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                                                 NC: 2025:KHC:48058
                                            CRL.A No. 686 of 2017


HC-KAR



SPL.C.C.NO.198/2013 - CONVICTED THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 448,323 AND 366 OF IPC.

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

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA



                      ORAL JUDGMENT

1. Appellant has preferred this appeal against the

judgment of conviction and order on sentence dated

10.03.2017 passed in Special C.C.No.198/2013 by the LIV

Additional City Civil and Sessions Judge, Bengaluru City

(for short 'the trial Court').

2. For the sake of convenience, the parties herein are

referred to as per their rank before the trial Court.

3. Brief facts leading to this appeal are that, the Police

Inspector, Rajagopalanagar Police, Bengaluru has

submitted charge sheet against the accused for the

offence under sections 448, 323, 363, 366 and 376 of

Indian Penal Code and section 4 of POCSO Act.

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4. It is alleged by the prosecution that, the father of the

victim girl lodged a complaint on 25.03.2013 alleging that

the appellant has entered into his house and assaulted him

and forcibly kidnapped his daughter on motorbike. The

victim girl was a minor and aged about 16 years as on the

date of the alleged incident. On the basis of complaint,

First Information Report was registered in Crime

No.144/2013 for the offence punishable under sections

448, 323, 366(A) R/w. section 34 of IPC. After 3 months

after the complaint lodged, the victim girl was traced with

the appellant. Thereafter, the victim was sent for medical

examination and her statement was also recorded. After

the conclusion of the investigation, the charge sheet was

filed against the appellant for offences punishable under

sections 448, 323, 366(A), 376 of IPC R/w. Section 4 of

POCSO Act, 2012. The accused was in judicial custody.

Thereafter, he was enlarged on bail. Upon hearing on

charges, the trial Court has framed charges for the alleged

commission of offences. Same was read over and

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explained to the accused. Having understood the same,

accused pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, prosecution has

examined 9 witnesses as PWs.1 to 9, 11 documents were

marked as Exs.P1 to 11 and 3 material objects were

marked as MOs.1 to 3. On closure of prosecution side

evidence, statement under Section 313 was recorded.

Accused has denied the evidence of prosecution witnesses,

however, did not choose to lead any defense evidence on

his behalf. In his statement, it is stated that he has not

committed any sexual assault on the victim and there is

enmity between the victim family and themselves, for that

reason, a false complaint has been filed against him.

6. Having heard the arguments on both sides, the trial

Court acquitted the accused for the offences punishable

under Section 376 of IPC and under Section 4 of POCSO

Act, 2012. The trial Court convicted the accused and

sentenced to undergo Simple Imprisonment for a period of

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6 months for the offence under Section 448 of IPC.

Further the accused is sentenced to undergo Simple

Imprisonment for a period of 6 months for the offence

under Section 323 of IPC. Further the accused is

sentenced to undergo Simple Imprisonment for a period of

3 years for the offence under 366 of IPC and shall pay a

fine of fine of Rs.5,000/-. Being aggrieved by the

judgment of conviction and order on sentence, the

accused/appellant has preferred this appeal.

7. Learned counsel for the appellant Sri K.B.K.Swamy

would submit that judgment of conviction and order on

sentenced passed by the trial Court is contrary to law and

evidence. The trial Court has not properly appreciated the

evidence on record in accordance with law and facts.

8. The learned Sessions Judge ought have looked into

the aspect of non-tendering of medical evidence pertaining

to the alleged assault committed on the complainant and

his wife. It was only on the oral statement of the

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complainant, the learned Sessions Judge has convicted the

accused. Though the complainant, in his complaint, states

that the appellant and two others have entered into the

premises with deadly weapons such as choppers/longs, no

recovery is made at the behest of the accused or any

attempt made to recover the weapons. It is also important

to note that two others stated in the complaint, were not

identified and arrested. The whole investigation is a

stage-managed, done with a sole intention to implicate the

accused as he do not belong to the caste of the

complainant. The vehicle alleged to have been used to

obduct the victim was also not seized and identified in the

course of trial. Without tendering such valuable piece of

evidence, the prosecution has failed to prove the case

beyond all reasonable doubts. The victim in her evidence

has clearly stated that she was not kidnapped and she left

her house on her own for which the witness was treated

hostile and cross-examined by the prosecution. As there

was no incriminating evidence against the accused, he did

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not cross-examine the witness. Due to non cross-

examination of the victim, the trial Court has come to the

wrong conclusion that the accused has accepted the

prosecution version of kidnapping. As the burden of proof

is always on the prosecution, the accused need not prove

or disprove anything. Without following the principle of

criminal jurisprudence, the trial Court has convicted the

accused erroneously.

9. Further he would submit that in para No.30 of the

judgment, the trial Court has observed that, unless

contrary is proved, the evidence of victim has to be

accepted by this Court as per provision of Section 29 of

POCSO Act, 2012 and the same will be pressed into the

service only if an offence under the provisions of POCSO

Act is proved. Since the trial Court has acquitted the

accused for the offence under Section 4 of the POCSO Act,

Section 29 is not applicable to the case on hand. On the

strength of Section 29 of the POCSO Act, the trial Court

has convicted the accused for the offence under Section

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366 of Indian Penal Code, which is not sustainable under

law. On all these grounds, it is sought for allowing this

appeal.

10. As against this, the learned HCGP Sri Lakshman.B,

submits that the trial Court has properly appreciated the

evidence on record in accordance with law and facts.

There are no materials to interfere with the impugned

judgment of conviction and order on sentence and sought

for dismissal of the appeal.

11. I have examined the materials placed before this

Court.

12. On the basis of the complaint filed by Shivanna-

Father of the victim examined as PW1, Rajagopala Nagar

Police have registered the case against accused No.1-

Srikantha @ Ambu and others for the offence under

sections 448, 323 and 366(A) R/w Section 34 of IPC.

After investigation, the Investigating Officer has submitted

charge sheet against the accused for the offence under

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sections 448, 323, 363, 366, 376 of IPC and Section 4 of

POCSO Act, 2012.

13. The Investigating Officer has not stated anything for

non-filing of charge sheet against other accused and also

regarding provisions of Section 34 of IPC. Even in his

evidence, the Investigating Officer has not whispered

anything in this regard.

14. The trial Court has acquitted the accused for the

offence under Section 376 and Section 4 of POCSO Act.

The State has not preferred any appeal against the

judgment of acquittal of the accused for the offence under

section 376 of IPC and section 4 of POCSO Act, 2012.

Therefore, there is no need to discuss about the

accusation made against the accused for the offence under

section 376 of IPC and section 4 of POCSO Act.

15. With regard to the offence punishable under Section

448 of IPC is concerned, the prosecution has to prove the

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essential ingredients to constitute the offence punishable

under section 448 of Indian Penal Code as under:

"(a) the accused committed criminal trespass;

(b) that he trespassed by unlawfully entering into or by remaining on the property unlawfully after initial lawful entry;

(c) that such trespass was in respect of a building tent or vessel

(d) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property."

16. In the complaint Ex.P1 filed by the complainant-PW1,

Shivanna has stated that on 24.03.2013 at 10.00 pm,

when he was in his house, the accused came along with 3

boys and trespassed into his house and dragged his

daughter out of the house. When PW1 prevented the

accused while dragging his daughter, they have assaulted

PW1 with hands and took their daughter on motorcycle.

17. In the case on hand, the prosecution has not

produced any documents to show that the house of

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complainant situate at No.68, 3rd Cross, Hegganahalli,

Shivanandanagar, Bangalore, belongs to him (PW1). The

Investigating Officer has not whispered anything as to

non-production of the Khata extract/assessment extract in

respect of the said house.

18. The alleged incident took place on 24.03.2013.

Complaint came to be filed on 25.03.2013 at 10.30 hours.

First Information Report reveals that the learned

Magistrate received the FIR on 26.03.2013 at 11.00 am.

The delay in filing the complaint has not been explained by

the prosecution.

19. PW1-Shivanna has deposed that, one year back in

the month of March at 10.00 pm, three persons entered

into the gate of their house by holding longs and made

galata. He (complainant) came outside, then they pushed

PW1 and took the victim on bike.

20. PW2-Gowramma has also deposed the same.

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21. PW7-Pavithra who is the elder sister of the victim has

not supported the case of the prosecution.

22. PW8-Victim girl has not deposed that the

accused/appellant and others trespassed into their house

and took her on bike. Therefore, it is crystal clear that,

absolutely there is no cogent, clinching, corroborative

evidence to convict the accused for the offence under

section 448 of Indian Penal Code.

23. With regard to offence under Section 323 of IPC is

concerned, in Ex.P1, the complainant-PW1 has stated that

the accused-Srikantha and two others assaulted PW1 with

hands. PW1-Shivanna has not deposed in his evidence

that the accused and two others have assaulted him with

hands. Absolutely, there are no evidence placed before

this Court to convict the accused for the offence under

section 323 of Indian Penal Code.

24. With regard to offence under Section 366 of Indian

Penal Code is concerned, it is relevant to mention here as

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to the essential ingredients to constitute the offence under

said section. The same is as under:

(a) Essential Ingredients.- An offence under this section has following essential ingredients:

(i) Kidnapping or abducting of any woman;

(ii) Such kidnapping or abducting must be-

(i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or

(ii) in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse; or

(iii) by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be, forced or seduced to illicit intercourse.

It is immaterial whether the woman kidnapped is a married woman or not."

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25. In the case on hand, it is alleged in the complaint-

Ex.P1 that the accused and two others took the victim

from their house on bike. PW1-Shivanna and PW2-

Gowramma, the parents of the victim have deposed the

same.

26. PW8-victim has deposed that, on the alleged date of

incident, the accused took her in an autorickshaw. In her

examination, the victim has not whispered anything to

attract the provisions of Section 366 of Indian Penal Code.

27. On careful examination of the entire evidence on

record, I do not find any evidence to constitute the offence

punishable under sections 323, 448 and 366 of IPC. The

entire case of the prosecution is not corroborated by legal

evidence. However, the trial Court has convicted the

accused for the commission of alleged offence under

sections 323, 366 and 448 of Indian Penal Code, which is

not sustainable under law. Accordingly, I proceed to pass

the following:

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HC-KAR




                           ORDER

     (i)     Appeal is allowed.


     (ii)    The judgment     of       conviction and     order on

sentence      dated      10.03.2017        passed    in     Special