Karnataka High Court
Subhan @ Shuban Chodary @ Soudhagar vs The State Through And Anr on 4 September, 2025
-1-
NC: 2025:KHC-K:5160
CRL.A No. 200128 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 200128 OF 2023
(374(Cr.PC)/415(BNSS))
BETWEEN:
SUBHAN @ SHUBAN CHOUDARY
@ SOUDHAGAR,
S/O RAZAK SAB @ ABDUL RAZAK
CHOUDARY @ SOUDHAGAR,
AGED ABOUT 22 YEARS,
OCC: COOLIE,
R/O. HANGARGA (K)VILLAGE,
TQ. YADRAMI, DIST. KALABURAGI.
...APPELLANT
(BY SRI MAHANTESH DESAI, ADVOCATE)
Digitally signed
by RAMESH AND:
MATHAPATI
Location: HIGH 1. THE STATE THROUGH,
COURT OF
KARNATAKA YADRAMI POLICE STATION,
NOW REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585 102.
2. VICTIM REPRESENTED BY,
NINGANNA KUNNUR
S/O BHIMRAYA
(FATHER OF THE VICTIM),
R/O. HANGARKA (K) VILLAGE,
TQ. YEDRAMI,
DIST. KALABURAGI-585 102.
-2-
NC: 2025:KHC-K:5160
CRL.A No. 200128 of 2023
HC-KAR
3. AMBIKA D/O NINGANNA KUNNUR,
R/O. HANGARKA (K) VILLAGE,
TQ. YEDRAMI, DIST. KALABURAGI 585102.
...RESPONDENTS
(BY SRI GOPALKRISHNA B. YADAV, HCGP FOR R1;
SRI RAVI BHEEMSINGH CHAWAN, ADVOCATE FOR R2 AND R3)
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
PRAYING TO SET-ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE PASSED BY THE
HON'BLE ADDL. DIST. & SESSIONS JUDGE FTSC-I (POCSO) AT
KALABURGI IN CRIME NO. 34/2020 YEDRAMI POLICE STATION
(IN SPL. (P) 31/2020) DTD 18/01/2023 BY ALLOWING THIS
APPEAL CONSEQUENTLY ACQUIT THE APPELLANT FOR THE
CHARGES PUNISHABLE U/SEC. 450 OF INDIAN PENAL CODE
AND SEC. 6, OF POCSO ACT, 2012 LEVELED AGAINST HIM.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE M G UMA)
The appellant being accused in Special Case (POCSO)
No.31/2020, on the file of the learned Additional District
and Sessions Judge & FTC-I (POCSO), Kalaburagi,
(hereinafter referred to as 'Trial Court') is impugning the
judgment of conviction dated 18.01.2023 and order of
NC: 2025:KHC-K:5160
HC-KAR
sentence dated 23.01.2023, convicting him for the offence
punishable under Sections 376(2)(i)(n), 450 of IPC and
Section 6 of the Protection of Children from Sexual
Offences act, 2012 (for short 'POCSO') and sentencing to
undergo rigorous imprisonment for the period of 20 years
and to pay fine of Rs.20,000/- for the offence punishable
under Section 6 of POCSO Act; sentencing to undergo
imprisonment for 3 (three) years and to pay a fine of
Rs.5,000/- for the offence punishable under Section 450 of
IPC with default sentence.
2. Facts of the case in brief are that, PW.1-the
victim girl lodged the first information as per Ex.P1 against
the accused alleging commission of the offence punishable
under Sections 376(2)(i)(n), 448 of IPC and Sections 4, 6
and 12 of the POCSO Act. On the basis of the same, the
FIR came to be registered, investigation was undertaken.
After completion of the investigation, charge sheet came
to be filed. The learned Magistrate took cognizance of the
above said offence and summoned the accused. The
NC: 2025:KHC-K:5160
HC-KAR
accused appeared before the Trial Court, pleaded not
guilty and claimed to be tried.
3. To prove the guilt of the accused, the
prosecution examined PWs.1 to 21, got marked Exs.P1 to
P28 and identified MOs.1 to 10 in support of its contention.
This accused has denied all the incriminating materials
available on record in his statement under Section 313 of
Cr.P.C, but he has not led any evidence in support of his
defence. However, he got marked Exs.D1 to D9 during
cross-examination of the prosecution witnesses.
4. After taking into consideration all these
materials on record, the Trial Court came to the conclusion
that, the prosecution is successful in proving the guilt of
accused beyond reasonable doubt and accordingly the
accused convicted and sentenced as stated above. Being
aggrieved by the same, the accused is before this Court.
5. Heard Sri. Mahantesh Desai, learned counsel for
the appellant, Sri. Gopal Krishna B.Yadav, learned High
Court Government Pleader for the respondent No.1-State
NC: 2025:KHC-K:5160
HC-KAR
and Sri.Ravi Bheemsingh Chawan, learned counsel for the
respondent Nos.2 and 3. Perused the materials including
the Trial Court records.
6. In view of the rival contentions urged by
learned counsel for both the parties, the point that would
arise for my consideration is:
"Whether the appellant-accused has
made out a case to interfere with the
impugned judgment of conviction and
order of sentence passed by the Trial
Court?
7. My answer to the above point is in
'Affirmative' for the following:
REASONS
8. It is the contention of the prosecution that the
informant-PW.1 is the victim girl aged between 14 to 17
years and the accused criminally trespassed into her house
during early morning on 15.03.2020, committed the
NC: 2025:KHC-K:5160
HC-KAR
penetrative sexual assault and thereby committed the
offences as stated above. According to the informant, that
was not the first time when the accused came to the
house and committed the offence, but 2 or 3 times earlier
to the date of the first information, the accused had came
to her house and committed penetrative sexual assault
repeatedly. However, the victim girl has not revealed this
fact to her parents. On the early morning on 15.03.2020,
when the accused was with the victim girl in her room, the
mother of the victim girl heard some noise, came to her
room and saw the accused. She caught hold of the
accused and in the meantime the other persons have
gathered and assaulted the accused. In the first
information, the informant specifically stated that before
the date of the incident, the accused had committed
penetrative sexual assault forcibly about 4 to 5 time in her
own house.
9. PW.12 is the doctor who examined the victim
girl and issued the medical certificate as per Ex.P12. As
NC: 2025:KHC-K:5160
HC-KAR
per this document, victim girl was examined on
15.03.2020 at 5.00 p.m. to 16.03.2020 till 1.30 p.m. The
FIR was registered on 15.03.2020 at 12.30 p.m. about the
incident that had occurred on the same day at 4.00 a.m.
As per Ex.P12, on examination of the victim girl, it is
noticed that there was sexual intercourse about three days
back. The victim girl has stated that she was subjected to
sexual assault in her house in the early hours for 2 or 3
times, but she has never disclosed the name of the
accused before the Medical officer. No external injuries
were found on the private parts. However, torn, old and
healed hymen was noticed.
10. As per the Radiologist report, the victim girl was
aged between 14 to 17 years. As per the FSL report, no
blood stains, seminal stains, spermatozoa, vaginal
secretion were detected in any of the articles examined.
11. PW.9 is the mother of the victim girl. She
specifically stated that the victim girl used to sleep in her
room but she used to keep the main door open. It is
NC: 2025:KHC-K:5160
HC-KAR
stated that on the date of the incident, she heard the noise
from the room of the victim and therefore she woke up
and gone to the room of the victim. PW.2-who is father of
the victim girl who also deposed about the incident,
keeping the door of his house open and accused found
inside the room.
12. It is pertinent to note that the accused is aged
19 years. Even though as per the school records produced
by PW.13, the date of birth of the victim girl is
01.06.2005. As per the Radiologist opinion, she was aged
14 to 17 years. The materials on record discloses that the
accused and the victim girl were found inside her room in
the house in the early morning on 15.03.2020. The victim
girl states that, it was not the first time the accused had
came to her house and committed penetrative sexual
assault, but he had came earlier about 3 to 4 times and
committed similar acts. However, she has not revealed
this fact even to her parents. According to the victim, out
of fear, she had not informed this fact. The contention that
NC: 2025:KHC-K:5160
HC-KAR
the accused had criminally intimidated her and therefore
the victim had not informed about the incident to her
parents, cannot be accepted.
13. The victim girl keeping open the door of the
house and allowing the accused insider her room during
night hours, that too several times, gives a different
opinion about their relationship. Even though the victim
girl was a child, who was aged about 14 to 17 years, the
accused was also a teenager aged 18 to 19 years. If all
these facts and circumstances are taken into
consideration, it could be reasonably concluded that the
victim girl and the accused were having consensual
relationship and the victim girl had never objected for the
same. Only on the date of the incident, when the mother
of the victim girl noticed the accused inside the room of
the victim and had beaten him, the victim girl lodged the
first information as per Ex.P1. That may be a reason, why
the victim has not disclosed the name of the accused even
before PW.12-the Medical Officer who examined her.
- 10 -
NC: 2025:KHC-K:5160
HC-KAR
14. It is also pertinent to note that the victim girl
belongs to Hindu community, while the accused is a
Muslim and that may be one of the reasons for the victim
girl for not revealing the incident to her parents. The place
of incident and the frequency with which the accused used
to come to the house of the victim and committed the
offence, raises reasonable doubt about the case made out
by the prosecution. Even though, it cannot be said that the
victim girl could give consent for commission of such
offence, since the victim girl and the accused were
teenagers having sufficient maturity, the act alleged must
be consensual act for which only the accused cannot be
held responsible.
15. The accused who is found guilty of the offence
under Section 6 of POCSO Act, could be sentenced to
undergo imprisonment for life which shall mean
imprisonment for the remainder of natural life of that
person, and shall also be liable to fine, or even with death.
- 11 -
NC: 2025:KHC-K:5160
HC-KAR
16. Looking to the severity of the punishment
provided under Section 6 of the POCSO Act, the
responsibility on the prosecution to prove the guilt of the
accused will also be equally more. In the present case,
even though the prosecution is successful in proving that
the accused was found inside the room of the victim girl
on the date of the incident at about 5.00 a.m. and even
though, it is found that the victim girl aged between 14 to
17 years, was subjected to penetrative sexual assault for 3
or 4 times by the accused, raises serious doubt about the
case made out by the prosecution regarding the guilt of
the accused, as he was hardly 19 years. Considering the
fact that the victim and the accused were enough maturity
and were equal partners in the act alleged, treating PW.1
as victim and the appellant as accused cannot be
accepted. Under such circumstances, the benefit of doubt
could be extended to the accused. Hence, he is entitled for
acquittal.
- 12 -
NC: 2025:KHC-K:5160
HC-KAR
17. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court.
The Trial Court has not taken into consideration any of
these facts and proceeded to convict the accused on the
basis of the version of PW.1, which is illegal and perverse
for the discussions made above.
18. In view of the above, I am of the opinion that
the impugned judgment of conviction and order of
sentence passed by the Trial Court is liable to be set aside.
Accordingly, I answer the above point in the affirmative
and proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The impugned judgment of conviction
dated 18.01.2023 and order of Sentence
dated 23.01.2023 passed in Special Case
(POCSO) No.31/2020 on the file of learned
Additional District and Sessions Judge &
FTC-I (POCSO), Kalaburagi, convicting the
appellant/accused for the offence
- 13 -
NC: 2025:KHC-K:5160
HC-KAR
punishable under Sections 376(2)(i)(n),
450 of IPC and Section 6 of the POCSO
Act, is hereby set aside.
(iii) Consequently, accused is acquitted for the
offence punishable under Section
376(2)(i)(n), 450 of IPC and Section 6 of
the POCSO Act.
(iv) Bail bond of the accused, if any, and that
of his sureties shall stands cancelled.
(v) Fine amount, if any, deposited by accused
is ordered to be refunded to him after
appeal period is over, on due
identification.
Registry to send back the Trial Court Records along
with copy of this judgment for information and for needful
action.
Sd/-
(M G UMA)
JUDGE
MSR
CT:PK
