Karnataka High Court
Ayub Momin vs The State Of Karnataka And Anr on 9 September, 2025
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CRL.A No. 200330 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 200330 OF 2023
(374(Cr.PC)/415(BNSS))
BETWEEN:
AYUB MOMIN S/O ABUSAYID,
AGE: 61 YEARS, OCC: PRIVATE SERVICE,
R/O ASAR GALLI, VIJAYAPUR,
NOW R/O. H.NO.41 ASAR MAHAL BACK ROAD,
NEAR ROSHAN DARWAJA VIJAYAPURA,
(BUT IN CHARGE SHEET NAME HAS SHOWN AS,
AYUB ABUSAYID MOMIN).
...APPELLANT
(BY SRI VISHAL PRATAP SINGH, ADVOCATE)
Digitally signed AND:
by RAMESH
MATHAPATI 1. THE STATE OF KARNATAKA THROUGH,
Location: HIGH POLICE VIJAYAPURA WOMEN POLICE STATION,
COURT OF VIJAYAPURA DIST. VIJAYAPURA-586 101,
KARNATAKA REPRESENTED BY ADDITIONAL SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585 107.
2. SMT. DILASHA
W/O SHRI HAMZA HUSSAIN MANUGULI,
AGED ABOUT 30 YEARS, OCC: HOUSEHOLD,
R/O. ASAR GALLI, VIJAYAPURA
DIST. VIJAYAPURA-586 101.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1;
R2 SERVED)
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CRL.A No. 200330 of 2023
HC-KAR
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) OF CR.P.C PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE JUDGMENT PASSED BY THE ADDL. SESSIONS
JUDGE FAST-TRACK SPECIAL COURT-I AT VIJAYAPURA DATED
06.10.2023 IN SPECIAL CASE (POCSO) NO.49/2021
CONVICTING THE ACCUSED AND SENTENCING HIM FOR THE
OFFENCES PUNISHABLE U/SEC. 341, 428, AND SECTION 6(1)
OF POCSO ACT 2012 AND ACQUIT THE ACCUSED FROM THE
CHARGES U/SEC. 6(i) POCSO ACT 2012 AND 341, 428 OF IPC.
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.49/2021, on the file of the learned Additional Sessions
Judge, Fast Track Special Court-I, Vijayapura, (hereinafter
referred to as 'Trial Court') is impugning the judgment of
conviction dated 06.10.2023 and order of sentence dated
12.10.2023, convicting him for the offence punishable
under Sections 341 and 376-AB of IPC and Section 6(1) of
the Protection of Children from Sexual Offences Act, 2012
(for short 'POCSO Act') and sentencing to undergo
rigorous imprisonment for the period of 20 (twenty) years
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and to pay fine of Rs.20,000/- for the offence punishable
under Section 6(1) of POCSO Act; sentencing to undergo
imprisonment for 15 (fifteen) days and to pay a fine of
Rs.500/- for the offence punishable under Section 341 of
IPC with default sentence.
2. Facts of the case in brief are that, PW.2-being
the mother of the victim girl lodged the first information
with Women Police Station, Vijayapura, alleging
commission of the offences punishable under Sections
376-AB, 506 of IPC and Sections 5(m) and 6 of the POCSO
Act. On the basis of the same, the FIR came to be
registered and investigation was undertaken. After
completion of the investigation, final report came to be
filed for the offences punishable under Sections 341, 376-
AB and 506 of IPC and Sections 5(m) and 6 of the POCSO
Act. The Trial Court took cognizance of the above said
offence and summoned the accused. The accused
appeared before the Trial Court, pleaded not guilty and
claimed to be tried.
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3. To prove the guilt of the accused, the
prosecution examined PWs.1 to 19, got marked Exs.P1 to
P21 in support of its contention. The accused has denied
all the incriminating materials available on record in his
statement under Section 313 of Cr.P.C, examined DW.1
and got marked Ex.D1 evidence in support of his defence.
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
convicted the accused and sentenced as stated above.
Being aggrieved by the same, the accused is before this
Court.
5. Heard Sri. Vishal Pratap Singh, learned counsel
for the appellant and Sri. Gopal Krishna B.Yadav, learned
High Court Government Pleader for the respondent No.1-
State. Perused the materials including the Trial Court
records.
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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?
My answer to the above point is 'Partly in the
Affirmative' for the following:
REASONS
7. PW.2-the informant has lodged the first
information with the Women Police Station, Vijayapura
against the accused. On 14.10.2021 at 1.30 p.m., while
she was in District Hospital, she lodged a complaint by
stating that the victim girl is her daughter who was
studying in 4th standard. On 13.10.2021 at about 1.30
p.m., her daughter was playing infront of the house. At
about 5.00 p.m. she came home weeping. When the
informant enquired the reason, she informed that she had
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gone to the house of her friend. The accused being the
grand-father of the friend of the victim had taken her on
the terrace and committed penetrative sexual assault. She
complained about pain and bleeding in her vagina. The
victim girl also stated that, she was intimidated by the
accused not to reveal this fact with any other person.
Therefore, she was taken to Government Hospital at 11.30
p.m. and PW.2 requested the police to register the case
against accused, who had taken the victim girl to the
terrace, wrongfully restrained her, gagged her mouth by
tying it with the kerchief and committed rape/penetrative
sexual assault and also criminally intimidated her.
Accordingly, Crime No.121/2021 came to be registered
and the investigation was undertaken, which resulted in
the filing the final report for the above said offences.
8. In order to prove its contention, the prosecution
examined PW.1-the victim girl and PW.2-the informant
being the mother of the victim girl. PW.1-being the victim
girl has narrated in her own way about the incident that
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had occurred, PW.2 has also stated regarding the incident
and commission of offence by the accused. Both these
witnesses were subjected to cross-examination at length,
but nothing has been elicited from them to disbelieve their
version. It is suggested to both these witnesses that there
was quarrel between accused and PW.2. However, such
suggestions were denied by both the witnesses. It is
pertinent to note that both PWs.1 and 2 have stated that
"PW.1 had bleeding in her vagina and was experiencing
pain".
9. The prosecution examined PW.6-the doctor who
has examined the victim girl as per the recommendation of
PW.7, who is also a doctor. PW.6 in her evidence stated
that when she had examined the victim girl with a history
of sexual assault, she noticed that, labia majora shows
bluish discoloration of 1 cm x 1 cm and clitoris shows red
and swollen, bleeding for clitoris. However, she opined
that the hymen remained intact. It is also stated that, she
along with PW.17 issued Ex.P7.
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10. PW.17 is the Senior Specialist in General
Medicine, District Hospital, Vijayapura, who first examined
the victim girl on 14/15.10.2021 at about 2.15 a.m., with
a history of sexual assault by the neighbor. It is stated
that she has collected two vaginal swabs, two vaginal
smears and cloths that were worn by the victim girl. She
also opined that there was bluish discoloration of labia
measuring 1 cm x 1 cm, red and swollen and bleeding
from clitoris. After receipt of the FSL report, she has
issued the final report as per Ex.P16.
11. Ex.P7 is the report issued by PWs.6 and 17
jointly, where the description of labia majora shows bluish
discoloration of 1 cm x 1 cm and clitoris shows red and
swollen, bleeding for clitoris. It is stated that the hymen
was intact, fourchette was intact. Posterior commissure
was intact, any discharge was absent. Ex.P16 is the final
opinion issued by PW.17 according to which there were no
signs suggestive of penetration.
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12. The prosecution examined PW.16, a private
doctor who deposed that, the victim was brought to
Ashwini Sahakar Rugnalaya Ani Sanshodhan Kendra
Niyamit, Solapur, and he examined her with a history of
sexual assault. He found injuries on the private part of the
victim girl and opined that it must have been caused by
forcible sexual assault. The victim was discharged from the
hospital on 21.10.2021. During cross-examination, the
witness states that he had not received any reference
letter from the District Hospital, Vijayapura. He also
admits that he had not handed over any records to the
Investigating Officer. The witness states that he was
knowing that a criminal case was registered in that regard
in Vijayapura Women Police Station. He admits that in
Ex.P14, he has not referred to the name of the accused.
13. The Court has summoned Exs.P11 to P14 from
Ashwini Sahakari Rugnalaya Ani Sanshodhan Kendra
Niyamit, Solapur maintained by PW.16, according to
which, there were external injuries on the private part of
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the victim girl and the victim was admitted to the hospital
with a history of sexual assault.
14. The evidence of PW.16 is quite contrary to the
evidence of PWs.6 and 17. There are absolutely no
reasons assigned by the Investigating Officer as to why
the victim girl was taken to Solapur to be examined by a
private Doctor, when she was already examined by PWs.6
and 17 in the District Hospital and the report was awaited.
Interestingly, the Investigating Officer had not collected
any materials from PW.16. However, the said documents
as per Ex.P11 to P14 were summoned by the Court. There
was absolutely no reason as to why the Investigating
Officer has cited PW.16 as the prosecution witness. When
the evidence of PW.16, being the doctor practicing in a
distant place at Solapur and his report is inconsistent with
the evidence and report issued by PWs.6 and 17, I do not
find any reason to accept the same.
15. The evidence of PWs.1, 2, 6 and 17 coupled
with Exs.P7 and P16 probablizes commission of offence by
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the accused against the minor girl, who was hardly aged 9
years at the time of the incident. Even though it is
suggested to PWs.1 and 2 that they were having ill-will
against the accused, the same was flatly denied by these
witnesses. Interestingly, when the accused was examined
under Section 313 of Cr.P.C., he has not stated anything
about the ill-will the PW.2 was having against him and he
being falsely implanted by her. Therefore, there is nothing
on record to suggest that PW.2 was having any ill-will or
motive to falsely implicate the accused in commission of
the offence. The evidence of PWs.6 and 17 and Exs.P7 and
16 suggest some evidence of commission of sexual assault
on the minor girl. It is not sufficient to prove penetrative
sexual assault or aggravated penetrative sexual assault.
Therefore, I am of the opinion that, the materials on
record are sufficient to conclude that the accused being
the neighbour had taken advantage of the situation when
the minor girl had gone to his house to play with his grand
daughter and committed sexual assault by touching her
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private part and also trying to insert his penis into her
vagina. Therefore, I am of the opinion that, the
prosecution is not successful in proving the guilt of the
accused for the offence punishable under Section 6 of the
POCSO Act, but the materials on record are sufficient to
prove the guilt of the accused for the offence punishable
under Section 8 of the POCSO Act beyond reasonable
doubt.
16. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court.
It has committed an error in blindly accepting the version
of PWs.1 and 2, and convicted the accused by holding that
the prosecution is successful in proving the guilt of the
accused for the offence punishable under Section 6 of the
POCSO Act in the absence of any medical records to
substantiate the same. Hence, I am of the opinion that,
the impugned judgment of conviction and order of
sentence is liable to be modified.
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17. Accordingly, I answer the above point 'partly
in the affirmative' and proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction and
order of sentence passed in Special Case
(POCSO) No.49/2021 on the file of the
Additional Sessions Judge Fast Track
Special Court-I at Vijayapura, convicting
and sentencing the appellant-accused for
the offence punishable under Section 376-
AB of IPC and Section 6 of POCSO Act, is
hereby set aside.
(iii) The judgment of conviction and order of
sentence passed by the Trial Court for the
offence punishable under Section 341 of
IPC, is hereby confirmed.
(iv) The appellant-accused is convicted for the
offence punishable under Section 8 of the
POCSO Act. He is sentenced to undergo
rigorous imprisonment for a period of two
years and to pay fine of Rs.20,000/-. In
default to pay fine, he shall undergo
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simple imprisonment for a period of six
months.
(v) In view of the above, the order passed by
the Trial Court awarding compensation of
Rs.7,00,000/- to the victim girl is set
aside. The District Legal Services
Authority, Vijayapur is directed to award
reasonable compensation as provided
under the victim compensation scheme.
(vi) The appellant-accused is entitled for the
benefit of set off as provided under
Section 428 of Cr.P.C.
Registry is directed to send back the Trial Court
Records along with copy of this judgment for information
and needful action.
Registry is also directed to send the copy of this
judgment to the Secretary of District Legal Services
Authority, Vijayapur for information and necessary action.
Sd/-
(M G UMA)
JUDGE
MSR,LG
CT:PK
