Karnataka High Court
Sri Mahadeva vs State Of Karnataka on 28 October, 2025
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CRL.A No. 1975 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1975 OF 2018 (C)
BETWEEN:
SRI MAHADEVA,
S/O LATE CHANDRASHETTY,
AGED ABOUT 28 YEARS,
R/AT MAYIGOWDANAHALLI VILLAGE,
CHUNCHANAKATTE HOBLI,
K R NAGARA TALUK,
MYSURU DISTRICT - 34
...APPELLANT
(BY SRI. P D SUBRAHMANYA, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY VIJAYANAGARA POLICE,
MYSURU CITY,
MYSURU DISTRICT,
REP. BY ITS STATE PUBLIC PROSECUTOR,
Digitally signed by HIGH COURT OF KARNATAKA,
LAKSHMINARAYAN BANGALORE - 01
N
Location: HIGH
COURT OF 2. NELLAMMA W/O SIDDARAJU,
KARNATAKA
AGE ABOUT 42 YEARS,
KUMBARASHEETY CASTE,
ANNAPOORNESHWARI
BRICK FACTORY SHED,
BELAWADI INDUSTRIAL AREA,
MYSURU.
AMENDED AS PER
ORDER DATED 20.10.2023
...RESPONDENTS
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CRL.A No. 1975 of 2018
HC-KAR
(BY SRI. RANGASWAMY .R, HCGP FOR R1,
SMT. SWETHA, ADVOCATE FOR R2)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 29.08.2018 AND SENTENCE DATED 30.08.2018 PASSED
BY THE VI ADDITIONAL DISTRICT AND SPECIAL JUDGE,
MYSURU IN S.C.NO.33/2016 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S
506,376(2)(f)(i)(n) OF IPC AND SEC.5(j)(ii)(l)(n) R/W 6 OF
POCSO ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
Applicant has preferred this appeal against the
judgment of conviction and order on sentence dated 29th
August 2018 passed in SC No.33 of 2016 by the VI District &
Special Judge, Mysore (for short "the trial Court").
2. For the sake of convenience, the parties herein are
referred to as per the rank before the trial Court.
3. Facts in brief leading to this appeal are that
Vijayanagara Police, Mysore submitted charge-sheet against
the accused for the offence punishable under sections
376(2)(f)(i)(n), 506 Indian Penal Code and sections 5(j)(ii),
(L)(N) read with section 6 of Protection of Children from Sexual
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Offences Act (for short "the POCSO Act"). It is alleged by the
prosecution that complainant is the resident of
Jyothigowdanapura, Chamarajanagar District for the past 20
years. She is married to Siddaraju and he is having three
daughters. First daughter is Jyothi who is married to the
present accused, second daughter is one Kavya and third
daughter is the victim girl. The victim girl was studying in 10th
Standard at Hootagalli Government School. On 19th October
2015 at 12.00 noon, victim girl came to her complaining that
she is getting dizziness. On enquiring by her and her second
daughter-Kavya, the victim unfurled the event that in March
2015, when the complainant and her husband have been to
Coolie work and she was alone in the house, the accused came
there at about 6.00 pm, and she went to Kitchen to prepare
coffee for him. Accused came to the Kitchen, hugged her and
has committed aggravated penetrative sexual assault on her.
Further, he threatened her that she should not intimate the
matter to anybody, and she should consent for sexual
intercourse with him whenever he demands. The victim girl
being afraid of threat made by the accused, kept silent and has
not intimated to anybody in the house. Within a period of
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month, again one day he came in the evening and has repeated
the acts. The complainant, after discussing with the family
members, has filed complaint on 20th October 2015. Based on
the complaint, case came to be registered in crime No.281 of
2015 for the offence punishable under sections 376 and 506 of
Indian Penal Code and also under section 5(j)(ii) of POCSO Act.
After recording statement of the victim and upon conclusion of
investigation, charge-sheet came to be filed for the offence
punishable under Sections 376(2)(f)(i)(n), 506 Indian Penal
Code and sections 5(j)(ii), (L)(N) read with section 6 POCSO
Act.
4. The accused was on bail. On hearing arguments,
the trial Court framed charges for alleged offences and the
same were read over and explained to the accused. Accused
pleaded not guilty and claimed to be tried. To prove the guilt
of the accused, prosecution examined seven witnesses as PWs1
to 7, got market 15 documents as Exhibits P1 to P15. On
closure of prosecution side evidence, statement of the victim
under section 313 of Code of Criminal Procedure was recorded.
Accused totally denied the evidence appearing against him, but
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has not chosen to adduce any defence evidence on his behalf.
Having heard the arguments on both sides, trial Court
convicted the accused for the offences punishable under
sections 376(2)(f)(i)(n), 506 Indian Penal Code and sections
5(j)(ii), (L)(N) read with section 6 of the POCSO Act. Being
aggrieved by the judgment of conviction and order on
sentence, applicant has preferred the present appeal.
5. Sri P.D. Subrahmanya, learned Counsel appearing
for the appellant would submit that the judgment of the trial
Court convicting the apparent for the offence punishable under
376(2)(f)(i)(n), 506 Indian Penal Code and sections 5(j)(ii),
(L)(N) read with section 6 of POCSO Act is not sustainable
either in law or on facts and the same is liable to be set aside.
He would submit that the trial Court has completely failed in
appreciating the case of the appellant and on the wrong
observation of facts, has convicted the appellant. The
prosecutrix who has supported the case of the prosecution in
examination-in-chief, has completely turned hostile during the
cross-examination and she has not supported the case of
prosecution. The mother of the victim has not supported the
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case of prosecution and turned hostile. Therefore, her evidence
is of no use. The complaint came to be lodged on 20th October
2015, whereas the alleged incident took place in the month of
March 2015. There is delay of seven months in filing the
complaint. The prosecution has failed to prove the age of the
prosecutrix. It is submitted that as per the say of the mother,
the victim girl was aged 22 years as on the date of alleged
incident. The investigating officer in the cross-examination has
admitted that he has not procured any material as to the age of
the prosecutrix. Therefore, the trial Court has committed an
error in assessing the age of the victim. There are material
omissions and contradictions and the same are not considered
by the trial Court. On all these grounds, it is sought to allow
the appeal. To buttress his arguments, he places reliance on
the following judgments:
(1) PARAMESHA v. STATE OF KARNATAKA (2020
SCC OnLine KAR 5221;
(2) RAJESHPRASAD YADAV @ CHOOTU v. THE
STATE OF KARNATAKA (Crl. Appl.No.388 of
2019 decided on 20.12.2023);
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(3) THE STATE BY T.NARASIPURA P.S. v.
RAJARATHNAM @ UPENDRA (CRL.APPEAL
NO.1597 OF 2019 DECIDED ON 08.04.2024);
(4) VISHWANATH AHIRWAR v. STATE OF UTTAR
PRADESH (2023 SCC oNlINE aLL 160);
(5) P. YUVAPRAKASH v. STATE REP. BY INSPECTOR
OF POLICE, (AIR 2023 SC 3525); AND
(6) K. DHANDAPANI v. THE STATE BY INSPECTOR
OF POLICE (CRL.APPL.796 OF 2022 DECIDED
ON 09.05.2022)
6. As against this Sri R. Rangaswamy, the learned
High Court Government Pleader appearing for the official
respondent-State, would submit that the trial Court has
properly appreciated the materials in accordance with law and
facts. There are no grounds to interfere with the impugned
judgment of conviction and order on sentence and accordingly,
sought for dismissal of the appeal.
7. Having heard the arguments on both sides, and on
perusal of records, the following points would arise for
consideration:
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1. Whether, the appellant/accused makes out a
ground to interfere with the impugned
judgment of conviction and order on sentence
passed by the trial Court?
2. What order?
Regarding Point No.1:
8. I have examined the materials placed before this
Court. The learned Counsel appearing for the on behalf of the
appellant, would vehemently submit that the prosecution has
failed to prove that as on the date of alleged commission of
offence, the victim was not minor as defined under section 2(d)
of POCSO Act. On perusal of complaint-Exhibit P3, the age of
the victim is shown as 16 years. Exhibit P4 is the certificate of
medical examination of alleged victim of rape, which reveals
that age of victim was 16 years. The admission register-Exhibit
P6 reveals that the date of birth of the victim is 5th August
2000. Exhibit P5 also reveals the same. PW2-Nelamma, the
mother of victim has deposed in her evidence that she has not
obtained birth certificate of the victim and her age was 24-25
years at the time of recording the evidence. This evidence was
recorded on 18th February 2017. The alleged incident took
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place on 19th October 2015. Then the age of the victim at the
time of occurrence of incident should be 22 years. PW4-
Sangeeta, the Head Mistress of the School has deposed in her
evidence that she has issued Exhibit P5-School Admission
Register extract. During the course of cross-examination of
PW4, she has clearly admitted that she has not obtained the
birth certificate of the victim. PW7 is the investigating officer.
He has clearly admitted in his evidence that he has not
examined/enquired as the birth certificate of the victim. the
Investigating Officer has not deposed as to on what basis, the
date of birth of the victim is entered as 05th August, 2000 in
the school admission register. The investigating officer has not
explained anything as to the non-production of birth certificate
of the victim. When there is no legally acceptable evidence
regarding proof of age of the victim, the investigating officer
ought to have obtained the ossification test certificate from the
concerned medical officer. The investigating officer has not
taken any steps in this regard, and he has not whispered
anything as to non-production of Ossification test of the victim.
The medical officers have not deposited anything as to the non-
examination of the victim as to her age. In view of section
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164(A)(2) of Code of Criminal Procedure, 1973 the registered
medical practitioner, to whom such woman is sent shall,
without delay, examine her person and prepare a report of his
examination giving the following particulars, namely--
1. the name and address of the woman and of the person by
whom she was brought;
2. the age of the woman;
3. the description of material taken from the person of the
woman for DNA profiling;
4. marks of injury, if any, on the person of the woman;
5. general mental condition of the woman; and
6. other material particulars in reasonable detail
9. In the instant case, the registered medical officer has
not complied with the mandatory provisions as to confirming
the age of the victim. Investigating Officer has not complied
with the mandatory provisions section 94 of Juvenile Justice
(Care and Protection of Children) Act, 2015 and Rule 12 of
Juvenile Justice (Care and Protection of Children) Rules, 2016.
Since the prosecution has failed to produce cogent, convincing,
acceptable evidence regarding the age of the victim and also
taking to consideration the admission made by the PW2-mother
of victim as she had already attained majority at the time of
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alleged commission of offence, I am of the considered opinion
that prosecution has failed to prove that the victim was not a
minor girl as on the date of alleged commission of offence.
According to the evidence of PW1, she has completed 24 years
as on the date of the deposition, i.e. 18th February 2017. The
incident took place on 20th March 2015. Complaint came to be
filed on 20th October 2015, i.e. after lapse of seven months.
The prosecution has not properly explained regarding delay in
filing the complaint. Apart from this, during the course of
cross-examination of PW1, has clearly admitted that accused
has not committed rape on her. She has also admitted that
she has filed false complaint against the accused. When victim
herself has admitted that the accused has not committed rape
on her, Exhibit P15-DNA report will not come to the aid of the
prosecution for the reason that even if it is presumed that the
accused has intercourse with victim, at the time of commission
of offence, the same is consensual sexual intercourse, which
cannot come under the definition of rape as the victim has
attained majority as on the date of commission of alleged
offence. Though there is no convincing, cogent, acceptable,
trustworthy, and corroborative legal evidence, the trial Court
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has convicted the accused which is not sustainable under law.
Accordingly, I answer Point No.1 in the affirmative.
Regarding Point No.2:
10. For the aforesaid reasons and discussions, I proceed
to pass the following:
ORDER
i) Appeal is allowed;
ii) Judgment of conviction and order on sentence
dated 29th August 2018 passed in SC No.33 of
2016 by the VI District & Special Judge, Mysore,
is set aside;
iii) Appellant/accused is acquitted of the offence
punishable under sections 376(2)(f)(i)(n), 506
Indian Penal Code and sections 5(j)(ii), (L)(N)
read with section 6 POCSO Act;
iv) Registry is directed to send the intimation to Jail
Authority to release the accused, if he is not
involved in any other cases.
SD/-
(G BASAVARAJA)
JUDGE
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