Karnataka High Court
Ibrahim S/O Mohammed vs State Of Karnataka on 21 November, 2025
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CRL.A No. 614 of 2013
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 614 OF 2013
BETWEEN:
IBRAHIM
S/O MOHAMMED
AGED 30 YEARS
R/O ATTIGUNDI VILLAGE
JAGRA HOBLI
CHIKKAMAGALUR TALUK AND DISTRICT.
...APPELLANT
(BY SRI. K RAVISHANKAR ., ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY ITS
CIRCLE INSPECTOR OF POLICE
Digitally signed RURAL POLICE STATION
by JUANITA
THEJESWINI CHIKKAMAGALUR.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. B. LAKSHMAN., HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND CONVICTION DATED 04.06.2013 PASSED BY
THE PRL. SESSIONS JUDGE, CHIKMAGALUR IN S.C.NO.73/2012
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 376 OF IPC, AND SENTENCED THE APPELLANT/ACCUSED
TO UNDERGO R.I., FOR 7 YEARS AND PAY FINE OF
RS.1,25,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO
FURTHER IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE
P/U/S 376 OF IPC AND ETC.
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CRL.A No. 614 of 2013
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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
The appellant has preferred this appeal against the
judgment of conviction dated 04.06.2013 and order on
sentence dated 06.06.2023 passed by the Principal District
& Sessions Judge, Chikkamagalur, in S.C.No.73/2012.
2. For the sake of convenience, the parties herein
are referred to their rank as before the trial Court.
3. The brief facts leading to this appeal are that the
Circle Inspector of Police, Rural Police Station,
Chikkamagaluru, submitted a charge sheet against the
accused for the offence under Sections 366, 343, 376 IPC.
It is alleged by the prosecution that CWs.4 and 5 are the
parents of victim girl-CW1. They were residing in Attigundi
and working as coolies. They have two daughters and one
son. CW1 studied in the house of CW6 at Kolludoddi from
1st to 5th standard and thereafter, she used to go to
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Allampura School and was staying at Attigundi. CW1 used
to go to the school by SMS private bus and the accused
was the driver of the said bus. CW1 used to tell to her
parents that accused used to tease her saying that he
loves her and intends to marry her and that he will look
after her well. Thus, he was insisting her to love him.
When the accused told so, CW1 told that she is minor and
she has not attained the marriageable age and is not
willing to marry him. In spite of that, the accused used to
insist her. When the said fact was said to the parents of
CW1, they called CWs.6 and CW8 and all of them advised
the accused not to do so. In spite of the advice, the
accused continued his earlier behaviour towards CW1 and
was pestering her. As such CW1 stopped going to school
and she shifted the residence to Kalludoddi. When they
started residing at Kalludoddi, on 16.04.2012 CW1 was
taken by CW8 to his house at Mylimane under the
apprehension that accused may come and insist her to
marry him.
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4. It is the further case of the prosecution that when
CW1 was staying in the house of CW8 on 23.04.2012 at
about 04.30 p.m., CW1 went to bring water from the
Boothanagudde water tank and at that time CW8 and 9
were there in the house. At that time, the accused came
in an Autorikshaw and by telling that her father is sick
forcibly took her into the Auto. At that time, CW10 and
CW12 saw the accused taking CW1 in the Auto. After
taking CW1 in the Auto, the accused brought her to
Chikkamagaluru at about 06.30 p.m. and took her to a
cloth shop in M.G.Road and got purchased her two dresses
and thereafter, took her in a car to Birur. There he went to
the house of CW11 and after talking with CW11, he took
CW1 into the said house. CW1 saying that they can stay
there for 3 days and when they were staying there during
night hours the accused sexually assaulted her and
confined her for 3 days in the house of CW11. He even
threatened her by saying that she should not disclose the
said fact to anybody. When the parents did not trace
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CW1-Victim, CW8 informed the said fact to CW5.
Thereafter, he went to the police station and filed a
missing complaint. The Investigating Officer submitted the
charge sheet against the accused for the aforesaid
offences.
5. After filing the charge sheet, case was registered
in C.C.No.611/2012. After committal to the Court of
Sessions, case was registered in S.C.No.73/2012.
6. After hearing both sides, Trial Court has framed
the charges for the offences punishable under Sections
366, 343 and 376 IPC. Same was read over and explained
to the accused. Having understood the same, accused
pleaded not guilty and claimed to be tried.
7. To prove the guilt of the accused, prosecution got
examined 15 witnesses as PWs.1 to 15 and got marked 18
documents at Exs.P1 to P18 and five material objects as
M.Os.No.1 to 5. On closure of prosecution side evidence,
statement under Section 313 of Cr.PC., was recorded.
Accused has totally denied the incriminating materials
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appearing against him. But he did not choose to lead any
defence evidence on his behalf.
8. Having heard the arguments on both sides, the
Trial Court has acquitted the accused for the offence
punishable under Sections 366 and 343 of IPC. However,
the Trial Court has convicted the accused for the offence
under Section 376 IPC and passed sentence to undergo
Rigorous Imprisonment for 7 years and to pay a fine of
₹1,25,000/-. Being aggrieved by this judgment of
conviction and order on sentence, the appellant/accused
has preferred this appeal.
9. The learned Counsel for the appellant-
Sri.K.Ravishankar, would submit that the Sessions Judge
has committed an error in convicting the appellant solely
on the basis of the evidence of PW1. It is the case of the
prosecution that while PW1 went to fetch water near
Bhoothanagudde water tank, the accused came in an Auto
and took her to Birur to the house of PW6 (CW11) and
stayed there for 3 days. During the stay, the accused
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forcibly sexually assaulted her by closing her mouth with a
cloth and thereby committed rape. There is no evidence
on record that the victim has sustained any sort of
abrasion, contusion or any other sort of injuries on her
body. That being so, the question of forcible sexual
assault does not arise and the version of PW1, cannot be
believed.
10. It is further submitted that the learned Sessions
Court ought to have noticed that the evidence of PW1 is
full of contradictions and omissions. The evidence of PW1
is an improved version and many statements, which were
not told before the Investigating Officer have been made
while leading evidence before the court. That being so,
the evidence should have been discarded and
prosecution's evidence cannot be the sole basis to convict
the appellant.
11. It is further submitted that PW2 and PW3, the
Doctors who examined the victim, have categorically
stated that no external injuries were found over the body
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of the victim. In the cross-examination, the Doctors have
also admitted that in a forceful intercourse there will be
abrasions at the forehead region. That there is no iota of
evidence to prove the theory of rape or forcible sexual
intercourse by the appellant.
12. It is further submitted that the learned Sessions
Judge ought to have noticed that PW6, in whose house the
alleged rape has been committed, has turned hostile. The
prosecution has cross-examined the witnesses in detail
and nothing has been elicited. Therefore, the theory of the
alleged rape in the house of PW6 does not hold water
when the same is coupled with the un-corroborative
evidence of PW1. The prosecution has relied on Exhibit P9-
School Admission Register Extract to prove the age of the
victim. It is not a valid document.
13. It is further submitted that PW10, the mother of
the victim has clearly admitted in her evidence that the
date of birth of the victim was 30.10.1993. Hence, the age
of the victim, as on the date of commission of offence,
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comes to 19 years 6 months 10 days. The Investigating
Officer has not followed the mandatory provisions of
Juvenile Justice (Care and Protection of Children) Rules
2016.
14. Further, learned Counsel would submit that when
the theory of the prosecution, based on the kidnapping
and wrongful confinement, does not hold water or not
even supported by any sufficient corroborative evidence,
the question of rape by the appellant solely on the
unreliable evidence of prosecution is unjustified. The Trial
Court has not properly appreciated the evidence on record
in accordance with land and facts. The Trial Court has
committed an error in not discussing about the material
contradiction, omission and improvements.
15. In order to substantiate his contentions, learned
Counsel for the appellant has relied upon the following
decisions:
(1) Krishnan Kumar Mallik Vs. State of
Haryana - AIR 2011 SC 2877,
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(2) K R Thimmappa Gowda Vs. State of
Karnataka - AIR 2011 SC 2564
(3) Almelu & Another Vs. State Represented
by Inspector - AIR 2011 SC 715
(4) Surjan Vs. State of MP - 2002- AIR (SC)
(5) Criminal Appeal No.1445/2022 decided
on 19.01.2024 and
(6) Criminal Appeal No.210/2021 (A) decided
on 07.07.2025.
16. Per contra, learned High Court Government
Pleader-Sri.B.Lakshman, opposed this appeal stating that
the Trial Court has properly appreciated the evidence on
record and convicted the accused for the alleged
commission of offences and sought for dismissal of the
appeal.
17. Having heard the arguments on both sides and
on perusal the materials placed before this Court, the
following points would arise for my consideration:
i. Whether the Trial Court has erred in
convicting the appellant/accused for the
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offence punishable under Section 376 of
IPC?
ii. What order?
18. My findings to the above points are as under:-
i. Point No.1 : In the Affirmative;
ii. Point No.2 : As per final order
for the following:
REASONS
19. Point No.1: The Circle Inspector of Police, Rural
Police Station, Chikkamagaluru, submitted a charge sheet
against the accused for the offence under Sections 366,
343, 376 IPC.
20. Before appreciating the evidence on record, it is
necessary to mention here the provisions of offence
punishable under Section - 375 Rape in IPC. Section 375
of IPC reads as follows:
" 375. Rape. - A man is said to commit "rape"
who, except in the case hereinafter excepted, has
sexual intercourse with a woman under
circumstances falling under any of the six
following descriptions:-
First. - Against her will.
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Secondly.- Without her consent.
Thirdly.- With her consent, when her consent
has been obtained by putting her or
any person in whom she is interested
in fear of death or of hurt.
Fourthly.- With her consent, when the man
knows that he is not her husband, and
that her consent is given because she
believes that he is another man to
whom she is or believes herself to be
lawfully married.
Fifthly.- With her consent, when, at the time of
giving such consent, by reason of
unsoundness of mind or intoxication or
the administration by him personally or
through another of any stupefying or
unwholesome substance, she is unable
to understand the nature and
consequences of that to which she
gives consent.
Sixthly.- With or without her consent, when she
is under sixteen years of age.
Explanation. - Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape.
Exception. - Sexual intercourse by a man with his
own wife, the wife not being under fifteen years
of age, is not rape.".
Sixthly. - With or without her consent, when she
is under eighteen years of age.
Seventhly.-When she is unable to communicate
consent.
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Explanation 1.- For the purposes of this section,
"vagina" shall also include labia majora.
Explanation 2.- Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as
consenting to the sexual activity.
Exception 1. -A medical procedure or intervention
shall not constitute rape.
Exception 2. - Sexual intercourse or sexual acts
by a man with his own wife, the wife not being
under fifteen years of age, is not rape.]
21. Before examining the material placed before this
Court, it is necessary to mention here as to the decision of
Hon'ble Apex Court in the case of JOTHIRAGAWAN v.
STATE REPRESENTED BY INSPECTOR OF POLICE AND
ANOTHER rendered in Special Leave Petition (Crl.)
No.6821 of 2024 decided on 24th March 2025. In the said
decision, it is observed as under:
"7. We have gone through the First
Information Statement made by the
complainant and the statement given before
the Police which would form the basis of the
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trial. Unless the ingredients of an offence
under Section 376 of the I.P.C. comes forth
from these documents; which read together
reveal identical statements, there cannot be
any continuation of the prosecution. In this
context, we also have to notice Prithivirajan
from which paragraph 7 is extracted
hereunder:
"7. The instant case is one consensual
relationship between the appellant and
prosecutrix. Even otherwise, it does not
appear from the record that the initial promise
to marry allegedly made by the appellant was
false to begin with. Perusal of FIR itself
suggests that the alleged promise to marry
could not be fulfilled by the appellant due to
intervening circumstances. Consequently, the
relationship ended because of which the
present FIR came to be registered. Under
these circumstances, letting the appellant face
trial would be nothing short of an abuse of the
process of the Court. This cannot be
permitted."
22. It is also relevant to mention here as to the
provisions of Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, which reads as under:
"94. Presumption and determination of
age. - (1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act (other
than for the purpose of giving evidence) that
the said person is a child, the Committee or
the Board shall record such observation stating
the age of the child as nearly as may be and
proceed with the inquiry under section 14 or
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section 36, as the case may be, without
waiting for further confirmation of the age.
(2) In case, the Committee or the Board
has reasonable grounds for doubt regarding
whether the person brought before it is a child
or not, the Committee or the Board, as the
case may be, shall undertake the process of
age determination, by seeking evidence by
obtaining-
(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence thereof;
(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test
conducted on the order of the Committee or
the Board shall be completed within fifteen
days from the date of such order.
(3) The age recorded by the Committee or
the Board to be the age of person so brought
before it shall, for the purpose of this Act, be
deemed to be the true age of that person."
23. It is evident from a conjoint reading of the
above provisions that to resolve whatever dispute with
respect to the age of a person that arises in the context of
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her or him being a victim under the POCSO Act, the Courts
have to take recourse to the steps indicated in Section 94
of the JJ Act. The three documents in the order of which
the JJ Act requires consideration are that the concerned
Court has to determine the age by considering the
following documents:
(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:
24. Section 94 of the JJ Act clearly indicates that the
date of birth certificate from the school or the
matriculation or equivalent certificate from the concerned
examination Board has to be firstly preferred in the
absence of which date of birth certificate issued by a
Corporation or Municipal Authority or a Panchayat can be
considered and it is only thereafter, in the absence of
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these documents, age is to be determined through
'ossification test' or by any other latest medical age
determination test conducted on the orders of the
concerned authority, i.e., Committee or the Board or
Court'.
25. In the case on hand, the prosecution has
produced Ex.P.9-School Admission Register Extract, issued
by the Head Master, Government Higher Primary School,
Allampura, Chikkamagaluru Taluk, which reveals that the
date of birth of the victim is 30.10.1995. The incident
took place on 20.04.2012. PW.5, who issued the said
certificate has deposed that he has issued the certificate at
Ex.P9 and he does not say as to on what basis he has
entered the date of birth of the victim as 30.10.1995 in
the school records.
26. PW.10 mother of the victim, has clearly admitted
in her cross-examination that the date of birth of the
victim is 30.10.1993.
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27. The medical officer has examined this victim on
27.04.2012 and issued certificate as per Ex.P6. The
medical officer has not complied the mandatory provisions
of Section 164A of the Code of Criminal Procedure, 1973.
The medical officer has not taken any steps to determine
the age of the victim.
28. The alleged incident took place on 23.04.2012.
The date of birth of the victim is 30.10.1993 as deposed
by PW10-mother of the victim. Then the age of the victim,
as on the date of alleged incident, comes to 18 years 5
months and 23 days. Accordingly, the prosecution has
failed to prove that the victim was below the age of 18
years as on the date of commission of offence.
29. The Trial Court has acquitted the accused for
the offence under sections 366 and 343 of Indian Penal
Code. The State has not preferred any appeal against the
judgment of acquittal for the offence under sections 366
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and 343 of Indian Penal Code. The only offence alleged
against the accused is under Section 376 of IPC.
30. PW1 has deposed in her examination-in-chief
that it is stated in Ex.P1 that the accused has promised to
marry the victim and had sexual intercourse with her
despite her resistance.
31. The Investigating Officer has not produced the
accused before the learned Magistrate to record the
statement under Section 164 of Cr.P.C.
32. During the cross-examination, PW1 has clearly
stated as under:
"
! " #$% . & ' ( ) *+
,-. /0 1 2. 3 *
! " , 5 6 72 . /
! " & 8 9 :; * , 5 6
72 ."
She has not resisted at the time of sexual intercourse
with the accused and she has not sustained any injuries at
the time of sexual intercourse.
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33. This admission made by PW1 is not consistent
with the contents of the complaint. Admittedly PW1 had
traveled in an auto and car with the accused and the
victim did not raise any alarm for help. This shows her
conduct and behaviour during the whole process and
render her evidence shaken and untrustworthy. The
evidence of PW1, as also, the case of the prosecution is
not supported with the medical evidence. PW2-Doctor has
opined in Ex.P6 that no external injuries were found over
the body of the victim and on examination of her genitals,
pubic hair distribution was normal. No abrasion or injuries
found over the fourchette region. No discharge. Vagina
admitted two fingers easily and stretchable without any
pain and discomfort. No external injuries were found on
the body of victim. Further he has given his opinion that
there are no evidence suggestive of recent sexual act.
PW6-Latha, in whose house the alleged commission of
rape is committed, has not supported to the case of
prosecution.
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34. In the case on hand, absolutely there is no
cogent, consistent, corroborative, clinching evidence to
prove the commission alleged of rape said to have been
committed by the accused. Even if it is presumed that
there is any sexual intercourse between the accused and
the victim, same is a consensual one and it does not come
under the definition of "rape" under Section 375 of IPC.
35. Considering the facts and circumstances of the
case and keeping in mind the aforesaid judgments of
Hon'ble Supreme Court, I am of the opinion that the trial
Court has not properly appreciated the evidence on record.
36. On appreciation of the evidence on record, I do
not find any acceptable legal evidence to convict the
accused for the offence under Section 376 of Indian Penal
Code. Accordingly, I answer Point No.1 in Affirmative.
37. Point No.2.: For the aforesaid reasons and
discussions, I proceed to pass the following:
ORDER
(i) Appeal is allowed.
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(ii) The judgment of conviction dated 04.06.2013
and order on sentence dated 06.06.2013
passed in S.C.No.73/2012 by the Principal
Sessions Judge, Chikkamagalur, are set aside.
(iii) Accused/appellant is acquitted of the offence
under Section 376 of Indian Penal Code.
(iv) The Trial Court is directed to refund the
deposited amount by the accused in
accordance with law.
(v) Registry is directed to send a copy of the order
along with Trial Court records to the concerned
court.
Sd/-
(G BASAVARAJA)
JUDGE
DL, DHA
CT: JL
