[Cites 12, Cited by 0]
Karnataka High Court
State Of Karnataka vs Ramesha @ Sakkare on 17 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 787 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 787 OF 2018
BETWEEN:
STATE OF KARNATAKA
BY METAGALLI POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU.
...APPELLANT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
AND:
1. RAMESHA @ SAKKARE
S/O ELUMALAI
Digitally
signed by AGED ABOUT 28 YEARS
ANJALI M RESIDING OF BEHIND SANITORIUM
Location: KUMBARKOPPAL, MYSURU.
High Court
of Karnataka 2. ELUMALAI
AGED ABOUT 54 YEARS
PUDUPETE VILLAGE
SHIVASHAKTHI NAGAR
KANNAMANGALAM POST
ARANI TALUK
THIRUVANAMALAI DISTRICT
TAMIL NADU STATE.
3. SUSHEELA
W/O ELUMALAI
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CRL.A No. 787 of 2018
HC-KAR
AGED ABOUT 49 YEARS
PUDUPETE VILLAGE
SHIVASHAKTHI NAGAR
KANNAMANGALAM POST
ARANI TALUK
THIRUVANAMALAI DISTRICT
TAMIL NADU STATE.
...RESPONDENTS
(BY SRI. R LOKANATHA, ADVOCATE FOR R1 TO R3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGEMENT AND ORDER OF ACQUITTAL DATED 30.10.2017
PASSED IN S.C.NO.307 OF 2014 ON THE FILE OF VI
ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU
ACQUITTING THE RESPONDENTS/ACCUSED NO.1 TO 3 OF THE
OFFENCES P/U/S 366 AND 376(2)(i) AND (n) AND 506 OF IPC
AND ALSO U/S 5(i) R/W 6 AND 17 OF POCSO ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard learned Addl. SPP Smt. Rashmi Jadhav, appearing
for the appellant/State.
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Learned counsel appearing for respondent Nos.1 to
3/accused Nos.1 to 3 is absent.
This appeal is filed by the State challenging the judgment
of acquittal dated 30.10.2017 passed in S.C.No.307/2014 on
the file of VI Addl. District and Special Judge, Mysuru acquitting
respondents Nos.1 to 3/accused Nos.1 to 3 of the offences
punishable under Sections 366, 376(2) (i) & (n) and 506 IPC
and also under Sections 5(1) r/w 6 & 17 of POCSO Act and prayed
this Court to set aside the judgment of acquittal and convict
respondent Nos.1 to 3/accused Nos.1 to 3 for the charges
levelled against them.
2. The case of the prosecution before the trial court is
that on 18.05.2014 at 3.10 p.m., accused No.1 induced minor
girl C.W.2, who is examined as PW.1 to accompany him, stating
that he would marry her and when PW.1 did not agree for the
same, accused No.1 threatened PW.1 with dire consequences
and forcibly kidnapped her and took her to his native place at
Pudupete village, Shivashakthinagar in Thiruvannamalai District
of Tamil Nadu, where his parents accused Nos.2 and 3 were
residing. That on 20.05.2014, the accused committed rape on
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PW.1 in the bedroom of his house and then on 01.06.2014,
accused No.1 got married PW.1 at Ganesha Temple of
Paduvedu Village. It is also the charge that after marriage also,
accused No.1 committed rape on PW.1 in his house at Pudupete
and accused Nos.2 and 3 knowing fully well that PW.1 is still a
minor permitted accused No.1 to remain in the house with
PW.1 and aided accused No.1 in committing the offence and
hence, the case was registered, matter was investigated and
chargesheet was filed against the accused persons. The trial
judge having considered the material of charge sheet took
cognizance and also framed charges against the accused
persons and also recorded the evidence of PW Nos.1 to 13 and
Exs.P1 to 16 were marked. On closure of the evidence of
prosecution case, the trial judge recorded the statement of the
accused persons under Section 313 Cr.P.C. and accused did not
choose to adduce any defence evidence of their behalf.
However, the document Ex.D1 is marked during cross
examination of PW.2. The trial Judge having considered both
oral and documentary evidence comes to the conclusion that
the prosecution has not proved the kidnapping of PW.1 and
also causing threat on PW.1 and so also subjecting her for
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sexual act against her wish and that accused Nos.2 and 3 aided
accused No.1 knowing fully well that PW.1 is a minor and
allowed to marry her and made her to stay in the house along
with accused No.1. So also, it is the conclusion that the
prosecution has not proved that accused No.1 has got married
PW.1 on 01.06.2014, illegally took her to Ganesha Temple and
accused Nos. 2 and 3 aided accused No.1 to marry PW.1 and
they also performed the marriage and all these points were
answered considering the evidence available on record and
comes to the conclusion that the prosecution has not proved
the case beyond reasonable doubt. Being aggrieved by the
acquittal order, present appeal is filed by the appellant/State.
3. The main contention of Smt. Rashmi Jadhav, learned
Addl. SPP appearing for the appellant/State is that the trial
Judge committed an error in coming to the conclusion that the
prosecution has not proved the case and committed an error in
acquitting the accused and also failed to take note of the
evidence of PW.1 to PW.13 and documents which have been
marked on behalf of the prosecution; it is the case of the victim
girl while deposing before the Court that accused No.1, who
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was working with her father as his assistant, induced her and
forcibly took her to his native place and subjected her to sexual
act and married her knowing fully well that she was a minor;
that the trial Judge committed an error in not appreciating the
evidence of the Doctor PW.4 and the evidence of PW.4 supports
the case of the prosecution and PW.8, who is none other than
the wife of accused No.1 also supported the case of the
prosecution and also there is a presumption under Sections 29
and 30 of POCSO Act to raise a presumption against the
respondents/accused Nos.1 to 3 and in spite of all these
materials available on record, the trial Court committed an
error in acquitting accused Nos.1 to 3 and the judgment of the
trial Court suffers from infirmity and the victim girl's evidence is
compared to that of an injured witness and as the injured
witness does not spare the actual assailants and falsely
implicate the innocent person, similarly the victim also will not
implicate the accused falsely and hence it requires interference
of this Court.
4. Though respondent Nos.1 to 3/accused persons is
represented by learned counsel Sri. R. Lokanatha, he did not
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choose to appear and assist the Court even when this Court
heard the matter at the first instance in the morning and
passed over to post-lunch session to hear learned counsel
appearing for the respondents/accused Nos.1 to 3. However,
considering the grounds, which have been urged in the appeal
memo and also the arguments of learned Addl. SPP, the points
that arises for consideration of this Court are:-
1. Whether the trial court committed an error in
acquitting the accused?
2. Whether it requires interference of this Court?
5. Having reassessed both oral and documentary
evidence available on record, particularly the complaint, at the
first instance, a missing complaint was given by the father of
the victim girl as per Ex.P4, wherein in the missing complaint, it
is stated by him that his daughter (PW.1) is missing from
17.05.2014 from 3.10 p.m., when he went to attend the work
and in spite of search made, she was not found and hence
suspected the role of the accused that he might have taken her
and hence, a complaint was given on 21.05.2014 at 7.00 p.m.
and hence, a case was registered as missing complaint in terms
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of Ex-P4. Thereafter, one more complaint was filed on
27.05.2014 in terms of Ex.P5 stating that accused No.1 had
kidnapped her by enticing her though she was aged about 14
years and hence invoked the offence under Section 366A of
IPC. Thereafter, when accused No.1 and victim PW.1 were
apprehended at Tamil Nadu, other offences were invoked. The
victim's statement under Section 164 Cr.P.C. was also recorded
in terms of Ex.P2 before the learned Magistrate at Mysuru,
wherein, she(PW.1) says that accused No.1 was behind her
from last one year and when he expressed that if she fails to
love him, he would take away the life of her parents, she
expressed over phone that she also loves him and requested
not to kill her parents. Again on 18th May, when she called
accused No.1, he called her to come out and she consented to
go out and thereafter she went alongwith him and visited three
to four villages and ultimately he took her to his house and
family members also allowed and thereafter on June 1st, he
married her in Ganesha temple and both of them were sleeping
separately.
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6. Having perused Ex-P2- statement of the victim girl, it
goes to show that no allegation was made against accused No.1
with regard to subjecting the victim to sexual act before
marriage and even after marriage also and the evidence given
by her before the Court is against Ex.P2. PW.1 in her evidence
when she was examined as PW.1 reiterated that she was
having acquaintance with accused No.1 and also both of them
were talking over phone and frequently he was also visiting the
house of her and whenever he used to call her, he was asking
her to accompany him and he asked her to come behind
Ramamandira, which is located in Kumbarakoppal and
accordingly, she went to that place and accused No.1 came in
the autorickshaw to the said place and thereafter he took her in
a bus to Bengaluru and to Tamil Nadu in a train and in Tamil
Nadu, he took her to his house and his family members were
there and the family members also allowed them to stay in the
house and they also performed the marriage of the victim girl
with accused No.1 in a temple and 3-4 persons were also
present during the marriage and both of them were living in a
room together and inspite of her resistance, he subjected her
for sexual act for two days and he had removed the mobile SIM
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belonging to her and inspite of her request, he did not give the
same, and ultimately when he gave, she made a call to the
mother and before she could speak to her mother, he snatched
the mobile and destroyed the SIM, however, accused No.1
spoke to one Naveen, who was working under her father and
thereafter, the police came and apprehended both of them.
PW.1 victim girl states that her date of birth is 23.07.2001 and
also identifies her signatures as Exs.P1(a) and P2(a) and so
also Ex.P3. This witness was subjected to cross-examination.
But in the cross-examination, she categorically admits that she
is still a spinster and accused No.1 had not developed any
sexual contact with her and also not had any sexual act. She
also categorically says that in terms of Ex.P2 made a statement
that both of them were sleeping separately and in between
2013 to 2015, she was not using any mobile and that she is not
aware of the mobile number of accused No.1 and categorically
admits that for the first time she is deposing that at the time of
her marriage with accused No.1, his parents, brother, sister-in-
law and his sister were all present and the same was not stated
before the police. Further, with regard to the aspect of rape is
concerned, PW.1 says that she is not aware of the meaning of
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the rape and suggestions was made that she is falsely deposing
before the Court. No doubt, this witness was also subsequently
further examined by the learned Public Prosecutor and
suggestions were made, wherein, once again improvement was
made in the evidence of PW.1.
7. PW.2 is the mother of the victim girl PW.1 and she also
reiterates in line with the evidence of PW.1. PW.2 identifies the
signatures found at Exs.P4 and P5 and also categorically says
that PW.1 had already left the education. But in the cross-
examination also, suggestion was made that on 18.05.2014 as
victim was alone, she thought of getting her to the shop and on
the way to home with her husband's friend Venkatesh, she saw
accused No.1 going with her daughter PW.1 near
Kumbarakopalu and when she called them, they did not hear
and later accused No.1 took PW.1 in an autorickshaw and she
do not know which side the accused and PW.1 gone. But the
said suggestion was denied and hence said portion of PW.2 was
marked as Ex.D1. This witness categorically deposes that
accused No.1 forcefully kidnapped her and there is an
improvement in the evidence of PW.2 that there was a
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kidnapping of her daughter and that accused No.1 had called
up Naveen, who was working under her husband alongwith
accused No.1 and he is also a witness to the seizure Mahazar
Ex.P1 and his evidence is only a hearsay evidence.
8. PW.4 Doctor, in her evidence, says that she examined
victim girl PW.1 and hymen was not intact and also seized
articles and the same was sent to FSL and she gave the opinion
in terms of Ex.P7. PW.4 deposed that she conducted the
examination of the victim girl on 10.06.2014 and she found
traces of vaginal penetration. But this witness was subjected to
cross-examination and in the cross-examination, the
suggestion was made that the victim girl did not disclose
anything. But in the cross-examination, it is elicited that FSL
report is negative and seminal stains are also not detected and
also admits that if a girl involves in sports, swimming and
cycling and if any work is done in the agricultural land, chances
of hymen not being intact can be ruled out. But the report is
negative, but witness PW.4 says that based on the FSL report,
he has given the final report. But this evidence is contrary to
the FSL report. Since, FSL report is negative, the medical
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evidence also does not support the case of the prosecution.
Even though PW.4 Doctor says that there are traces of vaginal
penetration and hymen was not intact and spermatozoa was
not detected in vaginal smear and also that as the evidence of
PW.4 Doctor is very clear that for other reasons also, hymen
may not be intact, but in order to substantiate that PW.1 was
subjected to vaginal penetration is concerned, nothing is placed
on record. Except the evidence that there is sign of subjecting
PW.1 for sexual act, when the FSL report is negative and based
on the FSL report, PW.4 has given the final report, the evidence
of PW.4/ Doctor cannot be believed.
9. Now the issue is with regard to proving the date of
birth of PW.1 and witness PW.5 Assistant Teacher is examined.
She says that the date of birth of the victim is 23.07.2001 and
she was admitted to Government Higher Primary School for
5th Standard on 01.07.2011 and issued the document as per
Ex.9 and hence, it is clear that the first standard admission
records are not produced before the Court, which ought to have
been produced as per the juvenile rules. No substantive piece
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of evidence is produced before the Court to come to the
conclusion that the victim was aged about 13 years 10 months.
10. PW.9 Doctor, who conducted physical, mental and
also radiological examination of PW.1 victim deposes that the
victim was in between the age of 16 to 17 years and not 13
years 10 months as stated and this evidence also does not
corroborate the case of the prosecution with regard to the date
of birth of the victim girl.
11. Having considered both oral and documentary
evidence available on the record particularly Ex.D5- Kidnap
complaint and 164 statement made before the magistrate,
wherein PW.1 did not disclose that she was subjected to sexual
act even prior to the marriage as well as after the marriage and
also the marriage was not proved, except making an allegation
that the marriage of accused No.1 and victim PW.1 was
performed on 01.06.2014 in Ganesha Temple, even the priest
of the said temple was also not examined and apart from that,
the medical evidence, though PW.4 Doctor deposes before the
Court that traces of vaginal penetration is found and that
opinion is given based on FSL report, which is negative and
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when such being the case, the evidence of PW.1 does not
supports the medical evidence. Apart from that, in the cross-
examination, PW.1 categorically admits that accused No.1 and
herself were sleeping separately and she was not subjected to
sexual act and the said admission is elicited in the cross-
examination of PW.1 and the evidence of PW.1 is inconsistent
and Ex.P4 is contrary and there was no allegation against
accused No.1 that PW.1 was subjected to sexual act and the
statement made by PW.1 victim girl was made before the
Magistrate under Section 164 Cr.P.C, but while giving the
evidence, there is improvement and even in the evidence of
PW.2/mother, there is an improvement that accused No.1
kidnapped the victim/PW.1. But the evidence of PW.1 is very
clear that she only accompanied accused No.1 and accused
No.1 had requested her to come behind Rama Mandira,
Kumbarakoppulu and thereafter they travelled to Bangalore
and then to Tamil Nadu, and hence question of invoking of
ingredients of offence of kidnap and also subjecting her for
forceful sexual act does not arise. So also, the age of the
victim/PW.1 is also not proved and the preliminary documents
of either the birth certificate or the document of admission of
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PW.1 victim girl, at the first instance, are not produced and the
document-Ex.P9, which is copy of admission extract of the
victim to 5th standard is produced and when the same is not
proved in terms of Section 94 of Juvenile Justice(Care and
Protection of Children) Act, 2015 and the same is not
established before the trial Court by placing on record and so
also as per Section 34 of the POCSO Act, which also reads as
'Procedure in case of commission of offence by child and
determination of age by Special Court'. So also in view of
Section 34(1) of the POCSO Act, Section 94 of Juvenile
Justice(Care and Protection of Children) Act, 2015 becomes
relevant and applicable. In order to determine the age of the
victim, the documents which are required by the concerned
Court is the date of birth certificate from the school or
equivalent certificate of the concerned examination board, if
the same is available and in the absence thereof, birth
certificate issued by a corporation or a Municipal Authority is
required to be produced. In the instant case, except producing
the document Ex.P9 admission to 5th standard, no other
document is placed before the Court in proof of date of birth of
the victim girl/PW.1 and hence, we are of the opinion that the
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prosecution has not proved the age of the victim girl and apart
from that, the Doctor, who conducted the dental, radiological
and physical examination of victim girl PW.1, also says that the
age of the victim girl must be between 16 to 17 years and the
Hon'ble Apex Court having held in several cases that if the
doctor assessed the age of the victim, there would be 1 or 2
years difference and hence, unless positive evidence is placed
before the Court, question of coming to a conclusion that PW.1
victim girl was a minor cannot be accepted.
12. Having considered the evidence of the victim girl
under Section 164 of CrPC, the same cannot be a substantive
piece of evidence, wherein there is no allegation made
subjecting the victim girl for sexual act and only in the evidence
for the first time, she deposes before the Court and also
she(PW.1 victim girl) having admitted that there was no sexual
act on her by accused No.1 and when such evidence is
available before the Court, we do not find any ground to
reverse the finding of the trial Court.
13. It is settled law that while reversing the finding of the
trial Court, the Appellate Court has to come to a definite
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conclusion that there is consistent and corroborative evidence
before the Court and in the absence of cogent evidence before
the Court, question of coming to other conclusion does not
arise and benefit of doubt goes in favour of the accused only
and the trial Court also even extracted the evidence of victim
girl while appreciating the evidence available on record from
paragraph No.12 onwards with regard to 164 statement as well
as the statement made before the Court and also the admission
given by PW.1 in detail in respect of Ex.P2 as well as oral
evidence seen in paragraph No.33 also comes to the conclusion
that evidence of the victim girl does not inspire the confidence
of the Court and the evidence of the victim is inconsistent and
hence we do not find any ground to reverse the same while
exercising the appellate jurisdiction.
14. In the case on hand, one eyewitness Venkatesh has
also witnessed the incident of kidnapping, but this witness is
also not examined before the trial Court and he would have
been the witness with regard to the kidnap is concerned and
when all this material clearly discloses that the prosecution has
not proved the case beyond reasonable doubt and hence, we
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answer points in the negative. In view of the discussion made
above, we pass the following:
ORDER
Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
MN
