[Cites 34, Cited by 0]
Karnataka High Court
Adavayya S/O. Shankarayya Pujer vs The State Of Karnataka on 10 February, 2026
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A NO.100029 OF 2021
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 10TH DAY OF FEBRUARY, 2026
BEFORE R
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MRS JUSTICE GEETHA K.B.
CRIMINAL APPEAL NO.100029 OF 2021 (C)
BETWEEN
ADAVAYYA
S/O. SHANKARAYYA PUJER,
AGE: 32 YEARS,
OCC: PIGMI AGENT,
R/O. KADARAVALLI VILLAGE,
TQ: KITTUR,
DIST: BELAGAVI-591115.
...APPELLANT
(BY SRI. K.L. PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
THROUGH KITTUR POLICE STATION,
DIST: BELAGAVI-591115,
NOW REP. BY S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH-580001.
2. MAHADEVI
W/O. IRAPPA DIBBAD,
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
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CRL.A NO.100029 OF 2021
R/O. KADARVALLI,
DHARENNAVAR ONI,
TQ: KITTUR,
DIST: BELAGAVI-591115.
IMPLEADED VIDE ORDER DATED 28/07/2025
...RESPONDENTS
(BY SRI. M.B. GUNDAWADE, ADDITIONAL SPP FOR R1;
SMT. SURABHI R. KULKARNI, AMICUS CURIAE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C. PRAYING TO CALL FOR RECORDS IN
S.C.NO.377/2018 ON THE FILE OF THE SPL. COURT FOR POCSO
AND SC/ST (POA) AND III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI; ALLOW THIS APPEAL AND SET-
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
05/02/2021 AND ORDER OF SENTENCE DATED 06/02/2021 IN
SESSIONS CASE NO.377/2018 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI AND
THEREBY ACQUIT THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 376(2)(H), (I), (N) OF IPC AND
SECTION 4, 5(J), (II), (L), 6 OF PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012 IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.01.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
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CAV JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)
In this appeal, Judgment and Order dated 05.02.2021
and 06.02.2021 respectively passed by the learned III
Additional District and Sessions Judge, Belagavi in
S.C.No.377/2018, convicting and sentencing the appellant
for offences punishable under Sections 376(2)(h)(i)(n) of
the Indian Penal Code, 1860 (for short, hereinafter referred
to as 'IPC') and Sections 4, 5(j)(ii) and 5(l) read with
Section 6 of the Protection of Children from Sexual Offences
Act, 2012 [for short, hereinafter referred to as 'POCSO Act']
is under challenge.
2. Parties would be referred with their ranks, as
they were before the Trial Court for sake of convenience
and clarity.
3. The case of prosecution in nutshell is that
accused was usually going to the house of victim girl often
whenever her parents were not in the house and even
though she was minor, he developed intimacy with her. He
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used to say that, he would marry her and only with the
intention to have sexual intercourse with her on
25.10.2017, accused had been to the house of victim and
told her that, he would marry her and had forcible sexual
intercourse with her and caused penetrative sexual assault
on her in the hall of her house situated at Dharennavar
Street, Kadaravalli Village. He did the said act continuously
not only on 25.10.2017, but also subsequently and because
of that, she became pregnant and gave birth to a male child
on 01.09.2018 and thereby accused has committed the
Offences punishable under Sections 376(2)(h)(i)(n) of IPC
and Sections 4, 5(j)(ii) and 5(l) read with Section 6 of the
POCSO Act.
4. The criminal law was set into motion, when the
victim lodged the complaint on 29.08.2018 and afterwards,
she gave birth to a male child on 01.09.2018.
5. After completion of investigation, the
Investigation Officer filed charge-sheet against accused
alleging the offences punishable under Sections
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376(2)(h)(i)(n) of IPC and Sections 4, 5(j)(ii) and 5(l) read
with Section 6 of the POCSO Act.
6. After taking cognizance, the learned Sessions
Judge framed the charge against accused/appellant for the
offences punishable under Sections 376(2)(h)(i)(n) of IPC
and Sections 4, 5(j)(ii) and 5(l) read with Section 6 of the
POCSO Act.
7. On behalf of prosecution, 14 witnesses were
examined as PWs.1 to 14, got marked Exs.P1 to P.82 and
got marked MO.1 and closed its side before the Special
Court. Afterwards, statement of accused under Section 313
Cr.P.C. was recorded wherein, the accused has denied all
the incriminating substances alleged against him and he has
not let any defence evidence.
8. After recording the statement under Section 313
Cr.P.C. and hearing arguments of both sides, the Trial Court
by passing the judgment of conviction dated 05.02.2021
and order of sentence dated 06.02.2021 has convicted the
accused for the offences punishable under Sections
376(2)(h)(i)(n) of IPC and Sections 4, 5(j)(ii) and 5(l) read
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with Section 6 of the POCSO Act and sentenced him to
undergo imprisonment for life and to pay fine of ₹10,000/-
in lieu of payment of fine amount to undergo default
sentence.
9. Aggrieved by the said judgment of conviction and
order of sentence, appellant/accused has preferred the
present appeal.
10. Learned counsel for appellant Sri. K.L. Patil
would submit that there is an inordinate delay in lodging the
complaint. Even though, the alleged incident had taken
place on 25.10.2017, the complaint was lodged on
29.08.2018 i.e., after lapse of about 8 months. The victim
was not minor as on the date of alleged incident because no
admissible document is produced to prove that she was a
minor as on the date of alleged incident. In the cross-
examination, the victim has deposed that she studied up to
S.S.L.C. and she is having Birth Certificate and she can
produce the same. However, no such birth certificate or her
S.S.L.C. marks card are produced to prove that she was
minor as on the date of alleged incident. Only the certificate
CRL.A NO.100029 OF 2021
issued by the school headmaster based on admission
register is produced as per Ex.P.19. Even though, said
document was marked with consent, it is the burden of
prosecution to establish that the victim was minor at that
point of time. The age of complainant is not established, as
per the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (For short, hereinafter
referred to as 'the J.J. Act'). Furthermore, the D.N.A. test of
victim, her child and accused was conducted, wherein it was
held that, accused is not the biological father of the child.
The marriage of victim was already engaged with another
person and he was having access to enter the house of
victim. Further, there was enmity between the family of
complainant and accused. Under these circumstances, the
learned Sessions Judge ought to have acquitted the accused
by giving benefit of doubt to accused, because the case of
prosecution is not established beyond reasonable doubt.
11. In support of his contention, the learned counsel
for the appellant would rely upon the following citations:
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i) Nirmal Premkumar and another vs. State,
represented by Inspector of Police1.
ii) Shekhar and Another vs. State, represented
by the Inspector of Police2.
iii) P. Yuvaprakash vs. State, represented by
the Inspector of Police3.
12. Learned counsel for respondent-Additional
S.P.P./State would submit that there is ample material to
prove the guilt against accused. Evidence of prosecutrix-
victim cannot be brushed aside. Nothing was elicited in her
cross-examination to disbelieve her version. Only because
the D.N.A. report is negative, it cannot be held that accused
has not committed the offences alleged against him. In this
regard, he relied upon the judgment of learned Bombay
High Court in the case of Dashrath vs. State of
Maharashtra and Another4 and also relied upon the
Criminal Appeal No.1098/2024
(2011) 7 SCC 715
Criminal Appeal No.1898/2023
2021 SCC OnLine Bom 2921
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judgment of Sunil vs. State of Madhya Pradesh5. Thus,
contended that the conviction passed by the learned Special
Judge is in accordance with law and it is based on proper
appreciation of evidence and hence, prayed for dismissal of
appeal.
13. Smt.Surabhi Kulkarni advocate appointed as
amicus curiae for victim, assisted the Court properly and
she relied on Sunil and Dashrath (supra) judgments, and
would submit that the Birth Certificate of victim was not at
all disputed by the appellant before Trial Court and only for
the first time in the appeal at the time of arguments, the
accused is disputing the Birth Certificate. According to said
document, the victim was minor and if it was disputed
before the Trial Court, there would be an occasion for the
prosecution to examine the Headmaster who has issued
that document and would have produced the register, based
on which, said document was issued. In view of giving
consent to mark said document, it was not done. Now, in
the appeal, appellant is estopped from denying the date of
(2017) 4 SCC 393
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birth of the victim. She would further submit that Ex.P.19
is issued by a competent school authority and thus,
admissible in evidence.
14. She would further submit that formal proof of
Ex.P.19 is not required, as per Section 294 of Cr.P.C. and in
this regard, she relied on the judgment of Hon'ble Apex
Court in the case of Shyam Narayan Ram vs. State of
U.P. and Another6.
15. She would further submit that even though the
D.N.A. report is not helpful, the evidence of victim-
prosecutrix is to be accepted. Considering these aspects,
the learned Special Judge has properly convicted the
accused and sentenced to undergo imprisonment. Hence,
prayed for dismissal of appeal. The learned amicus curiae
would further submit that the victim is entitled for
compensation under Victim Compensation Scheme.
16. Having heard the arguments of both sides and
verifying the appeal papers and Trial Court records, the
points that arise for consideration are:
2024 SCC OnLine SC 2988
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i) Whether the prosecution has proved beyond
reasonable doubt that the victim was minor
as on the date of alleged incident?
ii) Whether the delay in filing the complaint is
fatal to the case of prosecution?
iii) Whether the judgment of conviction and
order of sentence passed by the Trial Court
and reasons assigned for it, are justifiable?
iv) What order?
17. Finding on Point Nos.1 and 2 is in Affirmative
and Point No.3 is in Negative for the following reasons:
18. It is the case of prosecution that, victim was
aged about 15 years at the time of alleged incident dated
25.10.2017, and her date of birth is 20.06.2002.
19. Ex.P.19 is the certificate issued by the
Headmaster of Higher Primary School, Kadaravalli Taluk,
Kittur wherein it is stated that the victim was admitted to
the said school as per the admission register No.4225/16
and her admission date was 09.06.2008. Her date of birth
mentioned in that document is 20.06.2002 at Nesaragi and
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she studied in said school up to 7th standard and left the
school on 03.06.2015.
20. This document was marked with consent. That
means the author of the document need not be examined.
In POCSO cases, the date of birth of the victim is to be
established as per Section 94 of the J.J. Act.
21. As per Section 94 of the J.J. Act, the presumption
and determination of age is relevant. It reads as follows;
"14. In view of Section 34(1) of the POCSO Act,
Section 94 of the JJ Act, 2015 becomes relevant, and
applicable. That provision is extracted below:
"94. Presumption and determination
of age.--(1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act (other
than for the purpose of giving evidence) that
the said person is a child, the Committee or
the Board shall record such observation
stating the age of the child as nearly as may
be and proceed with the inquiry under Section
14 or Section 36, as the case may be, without
waiting for further confirmation of the age.
(2) In case, the Committee or the Board
has reasonable grounds for doubt regarding
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whether the person brought before it is a
child or not, the Committee or the Board, as
the case may be, shall undertake the process
of age determination, by seeking evidence by
obtaining--
(i) the date of birth certificate
from the school, or the
matriculation or equivalent
certificate from the
examination Board concerned,
if available; and in the
absence thereof;
(ii) the birth certificate given by a
corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i)
and (ii) above, age shall be
determined by an ossification
test or any other latest
medical age determination
test conducted on the orders
of the Committee or the
Board:
Provided such age determination test
conducted on the order of the Committee or the
Board shall be completed within fifteen days from
the date of such order.
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(3) The age recorded by the Committee or
the Board to be the age of person so brought
before it shall, for the purpose of this Act, be
deemed to be the true age of that person."
The three documents in order of which the Juvenile
Justice Act requires consideration is that the court
concerned has to determine the age by considering the
following documents:
(i) The date of birth certificate from the
school, or the matriculation or equivalent
certificate from the examination Board
concerned, if available; and in the absence
thereof;
(ii) The birth certificate given by a corporation
or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest
medical age determination test
conducted on the orders of the
Committee or the Board.
16. The Co-Ordinate Bench of this Court in the case
of Haji Kareem vs. The State of Karnataka7 held at
paragraph No.40 as follows:
"40. The Hon'ble Apex Court in Mahadeo Vs.
State of Maharashtra, reported in (2013) 14 SCC
637 has observed that rules applicable for
Crl.A.No.200128/2017 dated 23.09.2021
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determination of the age under the Juvenile Justice Act,
2000 would be relevant to determine the age of victims
in the context of sexual assault as well. Under Rule 12
of the Juvenile Justice (Care and Protection of Children)
Rules 2007, the Court may consider the following to
determine the age of the victim.
i) The matriculation or equivalent
certificates, if available; and in the
absence whereof;
ii) The date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;
iii) The birth certificate given by a
corporation or a municipality or a
panchayat.
In the absence of these three records, the Courts
may look at the medical opinion regarding the age of
the victim."
22. The Co-Ordinate Bench of this Court in the case
of Mr. Rajesh S/o Erappa vs. The State of Karnataka8
held at paragraph No.27 as follows:
"27. It is useful to refer to the relevant portion of the
Judgment of the Hon'ble Apex Court in the case of Jarnail
Singh Vs. State of Haryana, reported in (2013)7
Supreme Court Cases 263. Para 22 of the said Judgment
is extracted hereunder:
Crl.A.No.1423/2018 dated 16.12.2021
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"22. On the issue of determination of age of a
minor, one only needs to make a reference to Rule 12 of
the Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as "the 2007 Rules").
The aforestated 2007 Rules have been framed under
Section 68(1) of the Juvenile Justice (Care and Protection
of Children) Act, 2000. Rule 12 referred to hereinabove
reads as under:
"12. Procedure to be followed in
determination of age.-(1) In every case
concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may
be, the Committee referred to in Rule 19 of
these Rules shall determine the age of such
juvenile or child or a juvenile in conflict with
law within a period of thirty days from the date
of making of the application for that purpose.
(2) x x x x x
(3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by
the court or the Board or, as the case may be,
the Committee by seeking evidence by
obtaining -
(a)(i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;
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(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either (i),
(ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly constituted
Medical Board, which will declare the age of
the juvenile or child. In case exact assessment
of the age cannot be done, the court or the
Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may,
if considered necessary, give benefit to the
child or juvenile by considering his/her age on
lower side within the margin of one year.
and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or
the medical opinion, as the case may be, record a finding
in respect of his age and either of the evidence specified
in any of the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive proof of the
age as regards such child or the juvenile in conflict with
law.
(4) x x x x x
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of section 7-A,
Section 64 of the Act and these Rules, no further inquiry
shall be conducted by the court or the Board after
examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this Rule.
(6) x x x x x ."
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At para 23 of the said Judgment, the Hon'ble Apex Court has
held that even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, the
aforesaid statutory provision should be the basis for
determining the age, even of a child who is a victim of
crime."
23. In the instant case, the date of Birth Certificate
from the school or the matriculation or equivalent certificate
from the Examination Board concerned is not produced. As
discussed above, the certificate issued in this case is a
Certificate stating the school admission register number and
mentioning the date of birth of the victim.
24. Admittedly, the accused has not disputed the age
of victim. Furthermore, Ex.P.16 is the medico-legal
examination report of sexual violence issued by P.W.13.
Ex.P.16 is marked with consent. In this document, the
doctor by examining the teeth of the victim has mentioned
the approximate dental age as 14-16 years.
25. The reading of Exs.P.19 & P.16 marked with
consent shows that as the school admission register of the
victim was not produced and her birth certificate from the
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concerned municipality was not available, as an abundant
caution, the Investigation Officer has obtained the medical
opinion from the doctor.
26. As discussed above, both these documents are
marked with consent. That means, accused accepts the
contents of those documents.
27. The above discussion clearly and categorically
establishes that the victim was minor as on the date of
alleged incident.
28. With this background, the oral evidence is to be
analyzed.
29. The Prosecutrix in her evidence has deposed
that, she was studying in 10th standard and on 25/12/2017
she came from school at 02.30 p.m. She was not well and
she was alone in her house; her parents had been to landed
properties. At that time, accused entered her house and
made her to believe that he would marry her and he is
loving her and he intended to have physical contact with
her, but she refused to do so, stating that her parents
would abuse her and told him to go back, but he assured
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that nothing will happen and had physical contact with her
and went back to his house. Further, accused used to come
to her house to talk with her parents and was talking with
her with love and had physical contact with her several
times.
30. According to the evidence of P.W.2, prosecutrix
was taken to Mukunda Hospital at Parishwada about 6
months prior to prosecutrix gave birth to the child.
31. According to P.W.3, when her daughter was
carrying for four months, she came to know that victim was
pregnant and accused is the cause for it.
32. Even though, P.Ws.1 to 3 were aware about the
incident at least about four months after the alleged
incident, they have not made any efforts to lodge the
complaint against accused. On the other hand they have
lodged the complaint on 29.08.2018 and on 01.09.2018 the
victim gave birth to a child. No acceptable reason is given
for lodging the complaint so belatedly. The say of mother
of victim that she was not aware about the pregnancy of
her daughter cannot be believed. It is highly improbable
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that pregnancy could be hidden by the victim till 2 days
prior to she gave birth to the child.
33. The cross-examination of victim and her parents
reveals that there is enmity between their family and
accused since one year prior to the alleged incident. She
admitted that there was a quarrel between the accused and
her sisters and since then accused was not talking to them
properly. The same is elicited even in the cross-examination
of PW3, victims mother.
34. The father of victim in his cross-examination has
deposed that there was proposal of marriage of victim with
his nephew and he was coming to their house till his
daughter was studying in 9th standard and then he stopped
coming to their house without any quarrel or without any
incident.
35. The victim in her cross-examination has admitted
that about 8 months prior to lodging of complaint in this
case she was engaged to one Adrushtappa, the son of her
maternal aunt and he used to visit her house with her aunt.
She has deposed that during Sankranti festival in January,
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one day said Adrushtappa stayed in their house. He was
coming to their house on Deepawali and Panchami. After
Sankranti, till registration of the case, he did not visit their
house.
36. The above evidence of P.Ws.1 and 2 established
the access of another person to the house of victim. This is
more relevant in the case on hand because D.N.A. profile of
the child of victim has not tallied with the D.N.A. profile of
accused. According to D.N.A report as per Ex.P.21, victim
is the biological mother of the child and accused is not the
biological father of the male baby of child of victim. Detailed
reasons are also given for such conclusion. Thus, according
to D.N.A. report, accused is not the cause for pregnancy of
the victim.
37. In the judgment of High Court of Bombay
Dashrath cited (supra) relied by learned S.P.P. and amicus
curie at paragraph Nos.21, 22 and 23 it is held as follows:
"21. The samples of the appellant and the victim were
sent to Forensic Lab, Aurangabad by letter dated 28-06-
2018 (Exh.52). Forensic Lab, Aurangabad on analysis sent
its report (Exh.57) to the Investigating Officer wherein it
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was opined that the victim is concluded to be biological
mother of the child born to her. It is also opined that the
appellant is excluded to be biological father of the child born
to the victim. On the basis of DNA report the learned counsel
for the appellant has vehemently submits that the
prosecution has failed to establish the paternity of child of
the victim. He also submits that there is no clinching
evidence against the appellant that he committed rape due
to which the victim gave birth to female child. He further
submits that the appellant is excluded to be a biological
father of the child born to the victim. He also submits that
by accepting the DNA report the trial court should have
acquitted the appellant from the charges leveled against
him. To substantiate his point, he relied on the ratio laid
down in the case of State of Gujrat v. Jayantibhai Somabhai
Khant in Criminal Appeal Nos. 224 of 2012 along with 863 of
2012, wherein the Division Bench of Gujrat High Court held
as under;
36. We are not unmindful of a decision
of this Court in the case of Premjibhai
Bachubhai Khasiya v. State of Gujarat, 2009
Cri LJ 2888 wherein a Division Bench of this
Court observed that if the DNA report is the
sole piece of evidence, even if it is positive,
cannot conclusively fix the identity of the
miscreant, but if the report is negative, it
would conclusively exonerate the accused
from the involvement or charge. It was
observed that science of DNA is at a
developing stage and it would be risky to act
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solely on a positive DNA report. This decision
was rendered more than four and a half
years back. Science and Technology has
made much advancement, and world over
DNA analysis technology is being relied upon
with greater confidence and assurance. We
do not think that the Indian Courts need to
view the technology with distrust. Of course,
subject to the laboratory following the usual
protocols, DNA result can be of immense
value to the investigators, prosecutors as
well as courts in either including or excluding
a person from involvement in a particular act.
The said decision of this Court must be
viewed in the background of the facts in
which it was rendered. It was a case where
the accused were charged with offence under
sections 363, 366, 376 read with
section 114 of the Penal Code, 1860. All
important witnesses including the prosecutrix
herself had turned hostile and did not support
the prosecution. Despite which, the trial
Court handed down conviction primarily on
the basis of DNA report which opined that the
DNA profiling of the foetus matched with that
of the appellant original prime accused. It
was in this background while reversing the
conviction; the above noted observations
were made. It can thus be seen that mere
establishment of the identity of the father of
the foetus in any case would not be sufficient
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to record conviction of the accused for rape
and gangrape under
section 363, 366 and 376 of the Penal Code,
1860. The said decision, in our opinion,
therefore, cannot be seen as either rejecting
the reliability of the DNA technology or laying
down any proposition that in every case the
DNA result must be corroborated by
independent evidence before the same could
be relied upon."
22. On the other hand learned APP submits that
DNA report is just corroborating piece of evidence to
the testimony of the victim. Even though the DNA
report is negative, it can be ignored and evidence of
victim can be relied upon. To substantiate his point he
relied on the ratio laid down in the case
of Sunil v. State of Madhya Pradesh reported in (2017)
4 SCC 393 dated 08-04-2016 wherein, the Apex Court
held as under:
3. At the very outset, we deal with the
arguments advanced on behalf of the
appellant that in the present case the report
of DNA testing of the samples of blood and
spermatozoa under Section 53-A of
the Criminal Procedure Code, 1973 has not
been proved by the prosecution. The
prosecution has, therefore, failed to prove its
case beyond doubt. Reliance in this regard has
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been placed on the decision of this court
in Krishan Kumar Malik v. State of Haryana.
4. From the provisions of Section 53-A of
the Code and the decision of this court
in Krishan Kumar it does not follow that failure
to conduct the DNA test of the samples taken
from the accused or prove the report of DNA
profiling as in the present case would
necessarily result in the failure of the
prosecution case. As held in Krishan
Kumar (para 44), Section 53-A really
"facilitates the prosecution to prove its case".
A positive result of the DNA test would
constitute clinching evidence against the
accused if, however, the result of the test is in
the negative i.e. favouring the accused or if
DNA profiling had not been done in a given
case, the weight of the other materials and
evidence on record will still have to be
considered.
23. In the case of State of Gujrat v. Jayantibhai
Somabhai Khant in criminal appeal No. 224 of 2012 the
prosecutrix and her parents did not support the case of
prosecution. But, the accused was convicted on the
basis of DNA report. In view of the said facts, it was
held therein that mere establishment of identity of
father of foetus in any case would not sufficient to
record the conviction of the accused for rape and
gangrape under Section 363, 366 and 376 of the Penal
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Code, 1860. But, in the present case, the victim and
informant have supported the case of the prosecution.
Evidence of victim was supported by the medical
evidence. Therefore, in view of the ratio laid down in
the case of Sunil (supra) it can be said that the other
material brought on record by the prosecution can be
considered. Though, the DNA report exonerated the
appellant, but there is sufficient evidence on record to
hold that the appellant had committed rape on victim.
It is pertinent to note here that the marriage of the
victim was solmenized on 10-06-2018 the victim had
gone for cohabitation with her husband at her
matrimonial home. On the next day the husband of the
victim noticed that the victim was carrying pregnancy.
Therefore, she was sent to parental house on 23-06-
2018 and on the same day, in pursuance of information
given by the victim, her mother lodged the FIR. The
prosecution has proved that the victim is a child within
the meaning of Section 2(d) of the POCSO Act. Her
evidence is unblemished. Therefore, there is no need to
discard it."
38. In the aforesaid judgment of Bombay High Court
relying upon the judgment of Hon'ble Apex Court-Sunil cited
(supra) the Court came to aforesaid conclusion.
39. In the case of Sunil cited (supra) the Hon'ble
Apex Court at paragraph Nos.4 and 5 held as follows:
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"4. From the provisions of Section 53-A of the
Code and the decision of this Court in Krishan Kumar it
does not follow that failure to conduct the DNA test of
the samples taken from the accused or prove the
report of DNA profiling as in the present case would
necessarily result in the failure of the prosecution case.
As held in Krishan Kumar (para 44), Section 53-A
really "facilitates the prosecution to prove its case". A
positive result of the DNA test would constitute
clinching evidence against the accused if, however, the
result of the test is in the negative i.e. favouring the
accused or if DNA profiling had not been done in a
given case, the weight of the other materials and
evidence on record will still have to be considered. It is
to the other materials brought on record by the
prosecution that we may now turn to.
5. Reading the order of the learned trial court, we
find that the trial court has laboriously and
systematically itemised twelve different circumstances
which the prosecution has been able to establish
against the accused on the basis of evidence tendered
inter alia by PW 1 (Kamal), PW 2 (Santosh), PW 3
(Mukesh) PW 4 (Shyamlabai), PW 8 (Dr Saurabh
Borasi) and PW 11 (DVS Nagar)."
40. On this aspect, the learned counsel for accused
relied on the Co-Ordinate Bench of this Court in the case of
Azhar @ Azharuddin @ MD. Azharuddin vs. The State
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by Women Police Station in Crl.A.No.404/2019, decided
on 05.05.2020 held in paragraph Nos.42 and 43 as follows:
"42. Relying on a decision reported in Khali Ram
vs. State of H.P.9 the learned counsel contends that in
a criminal trial, it is for the prosecution to prove the
different ingredients of the offence and unless it
discharges that onus, it cannot succeed. He contends
that if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable
to the accused should be adopted. Relying on the said
decision, he submits that the guilt of the accused has to
be adjudged not by the fact that a vast number of
people believe him to be guilty but whether his guilt has
been established by the evidence brought on record.
43. The learned counsel for the appellant, relying
on a decision in the case of Peter Fernandes vs.
State10 has contended that paternity test is inconclusive
and there are inconsistencies in the evidence of the
prosecutrix. Hence, conviction of the accused cannot be
based on such evidence."
41. On careful perusal of principles noted in all the
above said citations, we are of the opinion that merely
because D.N.A. report is negative and is in favour of
AIR 1973 SC 2773
1997 Cr.LJ 954 (Bombay)
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accused, the case of prosecution cannot be thrown away.
However, the other circumstances of the case are also to be
looked into to decide the case on hand.
42. When prosecutrix was examined by the doctor,
she has stated her last menstruation date as January-
2018. But she has stated at the time of complaint that the
first date of incident of plea had taken place on 25.10.2017
and subsequently also, several times accused had physical
relationship with her. It is to be noted here that, the
subsequent dates of incident were not stated by her
anywhere. Further, how the alleged first date of incident
was stated by the victim is not explained, because the
complaint was lodged about 8 months after the alleged
incident. Victim was having regular menstrual cycle, and
when it was stopped, at least within 2-3 months, it would
have been observed by the victim and her mother.
However, till completion of 8 months' pregnancy, no effort
is made to lodge the complaint. Hence, the say of victim
and her parents that they were not aware about it cannot
be accepted.
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43. As discussed earlier, admittedly there was access
to other person to the house of victim other than accused;
admittedly there was enmity between accused and the
family of victim and thus, his access to the house of victim
is not established as per law. There is inordinate delay in
lodging the complaint, which is also not explained. In such
circumstances, assumes importance, which is DNA report
not in favour of prosecution. Hence, in the absence of
cogent evidence against accused, relying on the evidence of
prosecutrix and her parents, the conviction cannot be
recorded against accused.
44. However, the learned Sessions Judge has not
examined these aspects meticulously and only relying on
the examination-in-chief of victim, her parents came to the
wrong conclusion that the prosecution has proved the guilt
against accused and convicted him.
45. Having independently assessed the evidence of
the prosecution witnesses and having carefully examined
the material on record, we are of the considered view that
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the prosecution has failed to establish the guilt of the
accused for the charged offences beyond reasonable doubt.
46. We appreciate the efforts of amicus curie
Smt.Surabhi Kulakarni in assisting the Court.
47. Hence, the following:
ORDER
i) Appeal is allowed.
ii) The impugned Judgment and Order dated
05.02.2021 and 06.02.2021 respectively
passed by the learned III Additional
District and Sessions Judge, Belagavi in
S.C.No.377/2018, convicting and
sentencing the appellant for offences
punishable under Sections 376(2)(h)(i)(n)
of IPC and Sections 4, 5(j)(ii) and 5(l)
read with Section 6 of the POCSO are
hereby set aside.
iii) The appellant/accused is acquitted of the
offences punishable under Sections
376(2)(h)(i)(n) of IPC and Sections 4,
5(j)(ii) and 5(l) read with Section 6 of the
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POCSO. His bail bond shall continue for six
months.
iv) Learned Amicus Curiae, Smt.Surabhi
Kulkarni is entitled for honorarium of
Rs.10,000/-, which shall be paid by the
High Court Legal Services Committee,
Dharwad.
v) The victim is entitled for compensation
under Victim Compensation Scheme.
Hence, the DLSA is hereby directed to
provide appropriate compensation to the
victim, if any such application is filed by
her, by making due enquiry.
Sd/-
(MOHAMMAD NAWAZ)
JUDGE
Sd/-
(GEETHA K.B.)
JUDGE
SSP
CT-MCK
