Karnataka High Court
Rajkumar Walikar S/O Dattatreya ... vs The State Of Karnataka on 8 September, 2025
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CRL.A No. 200162 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 200162 OF 2021
(374(Cr.PC)/415(BNSS))
BETWEEN:
RAJKUMAR WALIKAR S/O DATTATREYA WALIKAR,
AGE: 27 YEARS, OCC: DRIVER,
R/O. DASUR, TQ. INDI,
DIST. VIJAYAPURA-586101.
...APPELLANT
(BY SRI R. S. LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally signed by THROUGH POLICE, CHADCHAN POLICE STATION,
RAMESH MATHAPATI
Location: HIGH TQ. INDI, DIST. VIJAYAPURA,
COURT OF
KARNATAKA REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
BENCH AT KALABURAGI-585 107.
2. VICTIM REPRESENTED BY HER
FATHER/COMPLAINANT,
SRI TULASIDAS S/O SUBBARAO PATIL,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. DASUR, TQ. INDI, DIST. VIJAYAPUR-586 101.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1;
R2 SERVED)
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CRL.A No. 200162 of 2021
HC-KAR
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
PRAYING TO ADMIT THE APPEAL, SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND SENTENCE DATED:
26.07.2021 PASSED BY THE ADDL. SESSIONS JUDGE FTSC-I
(POCSO) AT VIJAYAPURA IN SPECIAL CASE (POCSO)
NO.28/2016 ON ITS FILE, THEREBY CONVICTING THE
APPELLANT FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 366, 344 OF IPC AND SECTION 11 AND 12 OF
POCSO ACT, 2012, ACQUIT THE APPELLANT OF ALL CHARGES
IN SPECIAL CASE (POCSO) NO.28/2016 ON THE FILE OF ADDL.
SESSIONS JUDGE FTSC-I (POCSO) AT VIJAYAPURA.
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 the accused in Special Case
(POCSO) No.28/2016 on the file of the learned Additional
Sessions Judge, FTSC-I (POCSO), Vijayapura (for short,
'the Trial Court'], is impugning the judgment of conviction
and order of sentence dated 26.07.2021, convicting him
for the offences punishable under Sections 366, 344 of the
Indian Penal Code, 1860 [for short, 'the IPC'] and Section
11 punishable under Section 12 of the Protection of
Children from Sexual Offences Act, 2012 [for short, 'the
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POCSO Act'] and sentencing to undergo rigorous
imprisonment for a period of ten years and to pay fine of
Rs.25,000/- for the offence punishable under Section 366
of IPC; to undergo rigorous imprisonment for a period of
three years and to pay fine of Rs.10,000/- for the offence
punishable under Section 344 of IPC; and to undergo
rigorous imprisonment for a period of three years and to
pay fine of Rs.10,000/- for the offence under Section 11
punishable under Section 12 of the POCSO Act, with
default sentences, while acquitting him for the offences
punishable under Sections 376(2)(n) of IPC and Section
5(1) punishable under Section 6 of the POCSO Act.
2. Facts of the case in brief are that, PW-4 being
the father of the victim girl, lodged the first information as
per Ex.P-5. The informant stated in the first information
that, about a year ago, she discontinued her studies after
studying 6th standard. The accused was teasing and
harassing her since about a year, and the informant had
advised him to behave properly. On 06/07.05.2016 he
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noticed that, the victim girl was not in the house. On
enquiry he learnt that, the accused had taken her on his
motor cycle. Therefore, he requested the police to register
the case and to trace his daughter and to initiate action
against the accused for having kidnapped the minor girl
aged 15 years. Accordingly, FIR came to be registered
and investigation was undertaken. It is stated that, the
victim and accused were found together on 22.05.2016.
The victim was rescued and accused was apprehended.
After investigation, charge sheet came to be filed for the
offences punishable under Sections 363(A), 376, 344 of
IPC and Sections 3(a), 4, 6, 12 of the POCSO Act.
3. The accused had appeared before the Trial
Court, pleaded not guilty and claimed to be tried. The
prosecution examined PWs-1 to 24 and got marked Exs.P-
1 to P-37. The accused has denied all the incriminating
materials available on record, but had not led any
evidence in support of his defence. However, Exs.D-1 to
D-6 were marked during cross-examination of the
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prosecution witnesses. The Trial Court, after taking into
consideration all these materials on record, came to be
conclusion that, the prosecution has not proved the guilt of
the accused for the offence punishable under Section 376
of IPC and under Sections 3, 4 and 5 of POCSO Act.
However, it held that the prosecution is successful in
proving guilt of the accused for the offences punishable
under Sections 366, 344 of IPC and Section 11 punishable
under Section 12 of the POCSO Act. Accordingly, he was
convicted and sentenced as stated above. Being
aggrieved by the same, the accused is before this Court.
4. Heard Sri R.S. Lagali, learned counsel for the
appellant and Sri Jamadar Shahabuddin, learned High
Court Government Pleader for respondent No.1 - State.
Respondent No.2 though served, has remained un-
represented. Perused the materials on record, including
the Trial Court records.
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5. 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 judgment of conviction and order
of sentence passed by the Trial Court suffers
from infirmities and calls for interference by this
Court?"
My answer to the above point is in the 'Affirmative',
for the following:
REASONS
6. It is the contention of the prosecution before
the Trial Court that, the accused has kidnapped the victim,
who is a minor aged 15 years, with an intention to marry
her, thereby committed the offence punishable under
Section 366 of IPC. She was wrongfully confined for more
than 10 days and thereby he committed the offence
punishable under Section 344 of IPC. Moreover, the
accused had committed sexual harassment, and thereby
committed the offence under Section 11 punishable under
Section 12 of the POCSO Act. The Trial Court placed
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reliance on the evidence of PW-4 - the informant, being
the father of the victim girl, PW-5 - the victim girl herself,
and PW-7 - the mother of the victim girl, and PW-14 - the
doctor who examined the victim girl, to convict the
accused. PWs-1, 2, 3, 6 and 11 being the mahazar
witnesses, have not supported the case of the prosecution.
PWs-9 and 10 are the villagers who advised the accused
before commission of the offence. PW-8 being the scribe
of the complaint, has not supported the case of the
prosecution. PW-13, the owner of the motor cycle used by
the accused to kidnap the victim girl has also not
supported the case of the prosecution. PW-4 - the father
of the victim, PW-5 - the victim, PW-7 - the mother of the
victim have supported the case of the prosecution. Their
version is to be considered in the light of the documents
that are placed on record.
7. Ex.P-7 is the statement of the victim recorded
by the learned Magistrate under Section 164 of Cr.P.C.
which was recorded on 24.05.2016 as it is the case of the
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prosecution that on 22.05.2016 the victim was rescued
and subjected for medical examination. In her statement
before the learned Magistrate, the victim stated that, she
was in love with the accused since about one year. She
wanted to marry him, but her mother had threatened that
she would die if she marries the accused. She wants
cordial relations both with her parents as well as the
accused. On the date of the incident she went with the
accused on the motor cycle to Sangola in Maharashtra,
and stayed in the house of uncle of the accused for about
8 to 10 days. The accused has not committed any act as
alleged.
8. The earliest version of the victim girl recorded
before the learned Magistrate as per Ex.P-7 discloses that,
the victim was in love with accused and she wanted to
marry him. Since the parents were opposing such relation
and used to threaten to die if she marries the accused, she
went with the accused on the motor cycle.
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9. PW-14 is the doctor who examined the victim
girl. Ex.P-21 is the victim Medical Report, according to
which, the informant - the father of the victim had
accompanied her. There was no abnormality on physical
examination of the victim. There was no genital injury. It
is pertinent to note that, the doctor PW-14 has not noted
anything about the hymen and vagina except saying that
there were no genital injuries. Ex.P-22 is the final opinion,
according to which, there are no signs suggestive of
penetration. The presence of seminal stains and
spermatozoa were not detected in any of the articles.
From Exs.P-21 and P-22, it cannot be said that accused
has committed any acts of penetrative sexual assault as
alleged.
10. It is the contention of the prosecution that,
accused has committed sexual harassment punishable
under Section 12 of the POCSO Act. As I have already
referred to the statement of the victim under Section 164
of Cr.P.C. recorded immediately after her rescue, which
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discloses that, the accused has not committed any such
acts. Strangely, PW-5 - the victim girl has supported the
case of prosecution when she was examined before the
Court. There is absolutely no reason as to why she has
not made any allegations against the accused when her
statement was recorded by the learned Magistrate
immediately after her rescue. She has gone to the extent
of saying that, the accused had committed forcible
penetrative sexual assault which is not supported by the
medical records. Under such circumstances, I am of the
opinion that, the victim might have supported the case of
the prosecution at the instance of her parents. Since
there are no materials to support her version, and it is
against her statement under Section 164 of Cr.P.C., I am
of the opinion that, serious doubt arises about the case
made out by the prosecution. The benefit of such doubt is
to be extended to the accused, and he is entitled to be
acquitted.
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11. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court.
The Trial Court, even though acquitted the accused for the
offences punishable under Section 376 of IPC read with
Section 6 of POCSO Act, proceeded to convict the accused
for the offences punishable under Sections 366, 344 of IPC
and Section 11 punishable under Section 12 of the POCSO
Act, ignoring Ex.P-7 the statement of the victim under
Section 164 of Cr.P.C., Exs.P-21 and P-22 the medical
records, which also falsifies the case made out by the
prosecution. Therefore, the impugned judgment of
conviction and order of sentence is liable to be set aside.
In view of the above, 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 and
order of sentence dated 26.07.2021 passed
in Spl.Case (POCSO) No.28/2016 on the file
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of the learned Additional Sessions Judge,
FTSC-I (POCSO), Vijayapura is set aside.
(iii) Consequently, the appellant/accused is
acquitted of the offences punishable under
Sections 366 and 344 of IPC and Section 11
punishable under Section 12 of the POCSO
Act.
(iv) Bail bond, if any, of the appellant and that
of his sureties stand cancelled.
(v) Fine amount, if any, deposited is ordered to
be refunded to the appellant/accused on
due identification.
Registry is directed to send back the Trial Court
records along with copy of this judgment for information
and needful action.
Sd/-
(M G UMA)
JUDGE
SWK
Ct:pk
