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Karnataka High Court
Amal Mohaldar vs The State Of Karnataka on 6 April, 2026
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CRL.A No. 200239 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 200239 OF 2025
(374(Cr.PC)/415(BNSS))
BETWEEN:
AMAL MOHALDAR
S/O BISHWANATH MOHALDAR,
AGE: 41 YEARS, OCC: LABOURER,
R/O. R.H.CAMP NO.2, SINDHANUR,
TQ: SINDHANUR,
DIST: RAICHUR-584 128.
...APPELLANT
(BY SRI. B. K. HIREMATH., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
Digitally signed by
RAMESH SINDHANUR RURAL PS.,
MATHAPATI RAICHUR DISTRICT,
Location: HIGH
COURT OF THROUGH ADDL. PUBLIC PROSECUTOR,
KARNATAKA HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585 107.
2. ANNU MESTRI W/O SUBHASH MESTRI,
AGE: 31 YEARS,
OCC: AGRICULTURE AND HH WORK,
R/O. RH CAMP NO.2, SINDHANUR,
TQ: SINDHANUR, DIST: RAICHUR-584 128.
...RESPONDENTS
(BY SRI.JAMADAR SHAHABUDDIN, HCGP FOR R1;
SRI. SHARANAGOUDA V. PATIL ADV., FOR R2)
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CRL.A No. 200239 of 2025
HC-KAR
THIS CRL.A IS FILED U/S.415(2) OF BNSS PRAYING TO,
ALLOW THE APPEAL AND CALL FOR THE RECORDS AND SET
ASIDE THE JUDGEMENT PASSED BY III ADDL. DISTRICT AND
SESSIONS JUDGE, RAICHUR, SITTING AT SINDHANUR AND
SPL. JUDGE FOR TRAIL FOR CASES UNDER POCSO ACT IN SPL.
CASE NO.5034/2024 DATED 01.07.2025 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE U/SEC.
376(1) IPC AND U/SEC.POCSO ACT TO UNDERGO SIMPLE
IMPRISONMENT FOR TWENTY YEARS AND TO PAY FINE OF
RS.10,000/- IN DEFAULT SHALL UNDERGO SIMPLED FURTHER
IMPRISONMENT FOR FIVE MONTHS U/SEC.POCSO ACT AND
THIS HONOURABLE COURT BE PLEASED ACQUIT THE
ACCUSED.
THIS APPEAL, COMING ON FOR HEARING ON I.A, 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 and order on sentence passed by the III
Addl. District and Sessions Judge, Raichur (sitting at
Sindhanur) and Special Judge for trial of cases under the
POCSO Act, in Special Case No. 5034/2024 dated 01.07.2025.
2. The parties are referred to same rank what they
had before the trial Court for convenience.
3. The brief facts leading to this appeal are as follows:
The Sub-Inspector of Police, Sindhanur, submitted the charge
sheet against the accused for the commission of offences under
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Section 376(2)(f) of the IPC and Section 4 of the POCSO Act,
2012. PW.2, the victim, was aged 5 years and was pursuing her
studies in L.K.G. PW.1 is the mother of the victim. PW.1, the
victim, and her family members reside in R.H. Camp No. 2,
Sindhanur. CW.4, Pushpa Mestri, is the mother-in-law of PW.1.
There were two parts in one house. In one part, PW.1, the
victim, and her family members were residing, and in another
part, CW.4 and her other son were residing. The accused was
the neighbour of the victim and was aged 40 years. The
accused was known to the victim, and the victim was treating
him as her grandfather. It is the allegation of the prosecution
that on 23.11.2019 at about 8:00 a.m., the victim went to her
school. The parents of the victim went to the land for their
work. Sudeep Mestri, aged 8 years, and Jyothisha Mestri, aged
3 years, were in the house. On 22.11.2019 at about 3:00 p.m.,
PW.1 and her husband returned from the land. In the
meantime, the victim returned from school as it was Saturday
and there was a half day at school. The victim was dull, which
was noticed by PW.1. PW.1 did not inquire with the victim on
that date. On 24.11.2019, the victim did not wake up, and
therefore, the mother inquired with the victim. The victim told
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her mother that she was getting pain in her hands, legs, and
chest. The victim showed her private part to her mother, saying
that she was getting pain. PW.1 inquired with the victim in
detail at about 12:30 p.m. on 24.11.2019 and came to know
that the accused gave chocolate to the victim, took her to the
kitchen, pressed her chest, stripped her, and committed
penetrative sexual assault. PW.1 informed this fact to CW.4 and
her husband. They saw redness and swelling on the private
part of the victim. PW.1 and her husband went to the house of
the accused to inquire, but the accused was not in the house.
PW.1, CW.4, and the husband of PW.1 discussed the matter,
inquired with their relatives, and approached the police on
26.11.2019. PW.1 lodged the first information in writing before
PW.8, the PSI. PW.8 registered the FIR on 26.11.2019 at about
5:00 p.m. and launched the investigation. The further
investigation was taken over by PW.10, the CPI. PW.10
arrested the accused on 27.11.2019. PW.10 recorded the
statements of witnesses. He produced the victim before the
Magistrate, and the Magistrate recorded her statement. The
victim and the accused were subjected to medical examination.
After investigation, PW.10 filed a charge sheet against the
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accused for the offences under Section 376(2)(f) of the Indian
Penal Code and under Section 4 of the POCSO Act.
4. The accused was arrested on 27.11.2019 and, to
date, the accused is still in judicial custody. After hearing the
charges, the trial Court framed the charges for the alleged
commission of offences, which were read over and explained to
the accused. Having understood the same, the accused pleaded
not guilty and claimed to be tried.
5. To prove the guilt of the accused, the prosecution
examined in all 10 witnesses as PW.1 to PW.10, and 17
documents were marked as Ex.P1 to Ex.P17. On closure, no
material objects were marked on behalf of the prosecution.
After the closure of the prosecution's evidence, the statement
under Section 313 of the Cr.P.C. was recorded. The accused
totally denied the evidence of the prosecution witnesses.
However, he did not choose to lead any defence evidence on
his behalf.
6. Having heard the arguments on both sides, the trial
Court convicted the accused for the commission of the offence
under Section 376(1) of the IPC and under Section 4 of the
POCSO Act. The trial Court passed a sentence to undergo
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simple imprisonment for 20 years and to pay a fine of Rs.
10,000/-.
7. Being aggrieved by this judgment of conviction and
order on sentence passed by the trial Court, the
accused/appellant has preferred this appeal. The learned
counsel for the appellant would submit that the
accused/appellant has not committed any offence as alleged
against him.
8. PW.3 and PW.4 have not supported the
prosecution's case. Even PW.1 has not properly deposed
regarding the lodging of the complaint. PW.5 has also not
supported the prosecution's case. PW.6, Dr. Nagaraj, has not
supported the prosecution's case. PW.7, Dr. Ravi M.D., has
admitted that he had not examined the accused and did not
notice any sperm or semen on the undergarment of the
accused.
9. Absolutely, there is no evidence on record to prove
penetrative sexual assault as defined under Section 3 of the
POCSO Act, 2012. However, the trial Court has not properly
appreciated the evidence on record in a proper and perceptive
manner and convicted the accused, which is not sustainable
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under law. On all these grounds, the appellant seeks to have
the appeal allowed.
10. As against this, the learned HCGP would submit that
the trial Court has properly appreciated the evidence on record
in accordance with law and facts, and that there are no grounds
to interfere with the impugned judgment of conviction and
order on sentence. Hence, he seeks dismissal of this appeal.
11. Having heard the arguments on both sides and
upon perusal of the materials, the following points arise for
consideration:
i. Whether the trial Court was justified in convicting
the accused for the commission of the offence under
Section 4 of the POCSO Act, 2012?
ii. What order?
12. My answers to the above points are as under:
Point No. 1 is partly affirmative.
Point No. 2 as per the final order.
13. I have examined the materials placed before this
Court. It is the prosecution's case that on 23.11.2019 at 1:00
p.m., in the kitchen room of the house of CW.1, Smt. Anu
Mestri, situated in R.H. Camp No. 2, Sindhanur Taluk, the
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accused gave chocolate to the child victim and forcibly
committed rape/penetrative sexual assault against her, thereby
committing the alleged offence. To prove the guilt of the
accused, the prosecution examined in all ten witnesses as PW.1
to PW.10.
14. CW.1, Anu Mestri, examined as PW.1, deposed in
her evidence that CW.3 is her husband, CW.2 is her daughter,
and CW.4 is her mother-in-law. She knows CW.5 and CW.6.
She stated that the victim is her daughter and was studying in
the 5th Standard. About five years ago, one day she and her
husband went to their land at about 9:00 a.m. and returned to
the house at 3:00 p.m. along with her husband. On that day,
the victim did not say anything to her about the incident. On
the next day at 9:00 a.m., she called PW.2 for lunch. PW.2 did
not respond. Thereafter, she inquired with PW.2, and then
PW.2 told her about the pain in her chest, private part, and all
over her body, and that she was suffering from fever. The
victim was crying. Then she inquired further and came to know
that the accused gave chocolate and Kurkure to PW.2. There
was redness and even swelling in the private part of PW.2. She
then informed the same to her mother-in-law and then to her
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husband. Thereafter, they went to the house of the accused.
The accused apologized for the act done by him. On the next
day, she called the elders of the village, and as per their
advice, she lodged a complaint with the police as per Exhibit
P1. Thereafter, the police came to the spot and conducted a
panchnama as per Exhibit P.2.
15. CW.2, the victim, was examined as PW.2. She
deposed in her evidence that her date of birth is 05.09.2014.
She knows the accused, who resides by the side of their house.
When she was studying in L.K.G., the accused came to her
house and gave her chocolate and Kurkure in the kitchen of
their house. At that time, she, her elder brother, and her
younger brother were in the house. The accused pressed her
private part. Except for this, the accused did not commit any
other act.
16. CW.5, Raveendranatha, and CW.6, Ranjith Mandal,
said to be circumstantial witnesses, were examined as PW.3
and PW.4, respectively, and did not support the prosecution's
case.
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17. CW.8, Sumith Goldar, said to be the attesting
witness to Panchanama Exhibit P2, deposed as to the
panchnama conducted by the police as per Exhibit P2.
18. CW.16, Dr. Nagaraj, deposed in his evidence
regarding the issuance of the birth certificate, Exhibit P6.
19. PW.10, Dr. Ravi, deposed regarding the
examination of the accused and the issuance of Certificate
Exhibit P7.
20. CW.24, Raghavendra, Police Inspector, and CW.25,
Balachandra, CPI, examined as PW.8 and PW.10 respectively,
both deposed regarding their respective investigations.
21. CW.11, Dr. Rashmi, examined CW.9. She deposed
regarding the examination of the victim and the issuance of
Certificate Exhibit P.11.
22. Upon a careful examination of the entire evidence
placed by the prosecution, it is crystal clear that the accused
pressed the private part of the victim. Except this, there is
absolutely no evidence to show that the accused committed
penetrative sexual assault as defined under Section 3 of the
POCSO Act, 2012.
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23. It is relevant to mention here the provision of
Section 7 of the POCSO Act, 2012, which reads as under:
"Sexual assault -- Whoever, with sexual intent
touches the vagina, penis, anus or breast of the child
or makes the child touch the vagina, penis, anus or
breast of such person or any other person, or does
any other act with sexual intent which involves
physical contact without penetration is said to
commit sexual assault."
24. The evidence placed before this Court attracts the
offence punishable under Section 8 of the POCSO Act, 2012, as
the accused has committed sexual assault as defined under
Section 7 of the POCSO Act, 2012. The alleged act of sexual
assault by the accused shall be punished with imprisonment of
either description for a term which shall not be less than 3
years but may extend to 5 years, and shall also be liable to
fine.
25. Though there is no sufficient evidence to constitute
the offence under Section 4 of the POCSO Act, the trial Court
convicted the accused for the commission of the offence under
Section 4 of the POCSO Act, which is not sustainable under law.
26. It is submitted by the learned counsel for the
appellant that the appellant is in judicial custody from the date
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of his arrest, i.e., 27.11.2019, till this day, which amounts to 6
years, 4 months, and 9 days. The offence punishable under
Section 8 of the POCSO Act is punishable with imprisonment for
a term which shall not be less than 3 years but which may
extend to 5 years, and shall also be liable to fine.
27. Considering the facts and circumstances of this
case, it is just and proper to impose a sentence of the
maximum period of 5 years with a fine for the offence under
Section 8 of the POCSO Act, 2012. Accordingly, I answer Point
No. 1 as partly affirmative. For Point No. 2, for the aforesaid
reasons and discussions, I proceed to pass the following:
ORDER
i. The appeal is partly allowed.
ii. The judgment of conviction and order on sentence
passed by the trial Court dated 01.07.2025 in
Special Case No. 5034/2024 is set aside and is
modified as under:
a. The accused is convicted for the offence under
Section 8 of the POCSO Act and is sentenced to
undergo simple imprisonment for a period of 5
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years and to pay a fine of Rs. 1,000/-. In default of
payment of the fine, the accused shall undergo
further simple imprisonment for 6 months.
b. The accused has been in judicial custody from
27.11.2019 till this date. The accused is entitled to
set-off under Section 428 of the Cr.P.C. The
accused has already undergone imprisonment for
more than 5 years.
c. The Registry is directed to send a copy of this
judgment to the concerned jail authorities to release
the accused/appellant, as he has already completed
the period of sentence imposed by this Court,
provided he is not involved in any other case.
d. The Registry is directed to send a copy of this
judgment along with the Trial Court Records to the
trial Court.
Sd/-
(G BASAVARAJA)
JUDGE
TIN
List No.: 1 Sl No.: 24
CT-BH
