[Cites 13, Cited by 0]
Karnataka High Court
Muthu vs The State By Hal Police on 13 January, 2026
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CRL.A No.2207 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.2207 OF 2022
BETWEEN:
MUTHU
S/O POOMALE,
AGED ABOUT 48 YEARS,
R/AT MUNI NANJAPPA HOUSE,
2ND CROSS, JAGDISH NAGAR, HAL,
BENGALURU-560075.
...APPELLANT
(BY SRI. RAKSHITH R., ADV.)
AND:
1. THE STATE BY HAL POLICE
REP. BY THE GOVT. PLEADER
HIGH COURT OF KARNATAKA
BENGALURU - 560001.
2. SMT THULASI
W/O SRI RAJA,
AGED ABOUT 22 YEARS ,
R/AT NO.26, MUNI BACHAPPA COLONY,
JAGADISH NAGARA, HAL,
BENGALURU-560008
...RESPONDENTS
(BY SRI. B. LAKSHMAN, HCGP FOR R1,
R2 - SERVED AND UNREPRESENTED.)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 30.03.2022
AND ORDER OF SENTENCE DATED 31.03.2022 PASSED BY THE
ADDL. CITY CIVIL AND SESSIONS JUDGE, FTSC-II,
BANGALORE IN SPL.C.C.NO.546/2015 - CONVICTING THE
-2-
CRL.A No.2207 of 2022
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376,506 OF
IPC AND SEC.6 OF POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.11.2025 AND COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
Appellant is before the court in this appeal, challenging
the judgment of conviction dated 30th March 2022 and order on
sentence dated 31st March 2022, passed in Special CC No.546
of 2015 by the Additional City Civil and Sessions Judge-FTSC-
II, Bengaluru (for short "the trial Court").
2. For the sake of convenience, the parties herein are
referred to as per their status and rank before the trial court.
3. Brief facts leading to this appeal are that Police
Inspector of HAL Police Station, filed charge-sheet against the
accused for the offences punishable under Sections 376 and
506 of Indian Penal Code and Section 6 of Protection of
Children from Sexual Offences Act, 2012 (for short "the POCSO
Act"). It is alleged by the prosecution that CW1 is the wife of
CW3 and the victim minor girl who is aged 8 years and
studying in 2nd standard, is the daughter of CW1 and CW3. The
said family is residing in the house No.26, Munibachappa
Colony, Jagadish Nagar, HAL. The house of the accused is
situated opposite to the house of CW1. On 2nd September
2015, the Government had declared a holiday on account of
Bharat Bandh. The victim was in her house on that day. At
about 2.00 pm when the victim minor girl was playing in front
of her house, the accused took her to the house, closed the
main door and forcibly had physical contact with the minor girl
without her consent, and he also asked her not to disclose the
said fact to anybody and posed a life threat to the victim minor
girl. Thus, the accused committed the alleged offences. After
filing charge-sheet, case was registered in Special CC No.546 of
2015. Accused was enlarged on bail.
4. Upon hearing on charges, the trial court framed
charges against the accused for the commission of alleged
offences. The same were read over and explained to the
accused. Having understood the same, accused pleaded not
guilty and claimed to be tried. To prove the guilt of the
accused, the prosecution has examined thirteen witnesses as
PWs1 to 13, seven documents were marked as Exhibits P1 to
P7 and 12 material objects were marked as MOs1 to 12. On
closure of prosecution evidence, statement of the accused
under Section 313 of Code of Criminal Procedure was recorded.
Accused has totally denied the evidence of prosecution
witnesses appearing against him. However, he did not choose
to lead any defence evidence on his behalf. Having heard the
arguments on both sides, trial court has convicted the accused
for the offence punishable under Sections 376 and 506 of
Indian Penal Code and Section 6 of POCSO Act and passed
sentence to undergo rigorous imprisonment for a period of 20
years with fine of Rs.10,000/-, in default of payment of fine,
the accused shall undergo simple imprisonment for a period of
six months. Further, the accused is sentenced to undergo
simple imprisonment for a term of one year for the offence
punishable under Section 506 of Indian Penal Code. Being
aggrieved by the impugned judgment of conviction and order
on sentence, the appellant has preferred this appeal.
5. Sri Rakshit R, learned Counsel appearing for the
appellant would submit that the prosecution has failed to prove
that the appellant had physical contact with the victim girl.
Though the prosecution has not established the said fact, the
trial Court has the convicted the appellant and sentenced him
for aforesaid offences. He would submit that in order to convict
the accused under Section 6 of POCSO Act, the prosecution has
to prove that the accused was involved in the commission of
offence as per the provisions of the said act, i.e. the
penetrative aggravated sexual assault. He would submit that
the prosecution has utterly failed to prove the said offence as
prescribed under law. Though there is no cogent, convincing,
corroborative evidence, the trial court has convicted the
accused which is not sustainable under law. There is no medical
evidence to prove the guilt of the accused. The Doctor who has
conducted the medical examination of the accused, is not
examined before the court. The trial court has convicted the
accused only on the evidence of interested witnesses. The trial
court has failed to follow the guidelines issued by the Hon'ble
Apex Court while dealing with such cases. The entire evidence
placed by the prosecution is not sufficient to punish the
appellant for the aforesaid offences, and the prosecution has
failed to prove the guilt of the accused beyond all reasonable
doubt. The learned Counsel would also submit that Section 6 of
POCSO Act came into force on 16th August, 2019. Prior to
amendment, the punishment for the offence under Section 6 of
the POCSO Act was 10 years, which may extend to
imprisonment for life. In the case on hand, the incident took
place in the year 2015. However, the trial court has passed the
sentence for a period of 20 years which is unconstitutional in
view of Article 20 clause 3 of the Constitution of India. During
the course of cross-examination of PW2, she has clearly
admitted that she has not taken the child for medical
examination. The investigating officer has not explained
anything regarding non-examination of the child by the
concerned medical practitioner. On all these grounds he sought
for allowing the appeal.
6. On the other hand, Sri B Lakshman, learned High
Court Government Pleader appearing for the respondent-State
would support the judgment of conviction and order on
sentence passed by the trial court. He would submit that the
trial court has considered all the material and oral evidence in
accordance with law and has passed the impugned judgment,
which does not call for interference in this appeal. Hence, he
sought for dismissal of the appeal.
7. Having heard the learned Counsel appearing for the
parties, the point that would arise for consideration is:
1) Whether the trial court is justified in convicting
the accused for the offence under Sections
376 and 506 of Indian Penal Code and Section
6 of POCSO Act?
8. I have examined the materials placed before this
Court. It is alleged by the prosecution that on 2nd September
2015 at 2.00 pm in house No.26, situate at Munibhachappa
Colony, Jagadish Nagar, HAL, Bangalore, CW2 was at home
since it was declared holiday for the school on account of
Bharat Bandh. At about 2.00 pm, when the victim, minor girl
was playing in front of her house, accused took her into his
house, closed the main door and committed aggravated
penetrative assault on the minor girl and also posed life threat
to the victim. Thus, the accused committed the offence
punishable under Sections 376 and 506 of Indian Penal Code
and Section 6 of POCSO Act.
9. This Case arise out of the complaint-Exhibit P2 filed
by the complainant Smt. Thulasi-PW2. In the complaint, it is
stated as under:
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ಕ ಮ ಜರು ಸTೇ ೆಂದು ೋ_ ೆ."
10. On the basis of the complaint lodged on 2nd
September 2015 at 16:30 hours, the concerned police
registered a case in Crime No.641 of 2015 for the offence
under Sections 376 and 506 of Indian Penal Code and Section 6
of POCSO Act and submitted FIR to the court on 3rd September
2015 at 11.00 hours as endorsed by the learned Magistrate
through PC number 12268 of HAL Police Station, Bangalore.
Though the police have registered the casebgh on 2nd
September 2015 at 16:30 hours, the same was not submitted
to the court on the same day. However, in Column No.13 of the
FIR, it is submitted that the date and time of dispatching the
FIR is 2nd September 2015, 17:54 hours. In the FIR at Column
3(c), the investigating officer has not mentioned anything as to
the delay in filing the complaint. CW17-Guru Prasad, Sub-
Inspector of Police, has registered the case. The said CW17 has
not been examined by the prosecution. The other investigating
officers who have been examined before the court, have not
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whispered anything as to delay in submitting the FIR to the
court. The FIR is not marked before the court. However, I have
examined the FIR, as it is part and parcel of the prosecution
papers and the same is endorsed by the learned magistrate
who has received the same. In the FIR, the name of the
accused is mentioned. But the investigating officer has not
taken the signature or LTM of the complainant, in column 12 of
FIR. The prosecution papers reveal that on 2nd September
2015, Police have recorded the statement of the victim. The
Police officer who has recorded the statement of the victim, has
not been examined before the court.
11. PW10-Lakshmamma, Head constable has deposed
in her evidence that on 2nd September 2015, when she was on
duty in the police station, the Police Inspector-CW17, Sri Guru
Prasad (who is not examined before the court), has instructed
her to submit requisition for examination of the victim to
Bowring and Lady Curzon Hospital. Accordingly, she took the
victim along with her mother to Bowring and Lady Curzon
Hospital. After examination, she has produced the victim along
with her mother before the Station House Officer. Further, she
has deposed that on 8th September 2015, as per the direction
of CW1-Sri Ashwath Narayan, who is examined before the court
- 11 -
as PW13, she brought one sealed cover from Bowring and Lady
Curzon Hospital and submitted the report in this regard as per
Exhibit P7. Sri Guru Prasad who had deputed PW10
Lakshmamma, Head constable, has not been examined before
the court. Even the investigating officer has not collected any
material in this regard. Additionally, the prosecution has not
produced the medical examination report of the victim before
this court. Additionally, PW10 has deposed in her evidence that
she has produced Exhibit P7 on 8th September 2015, which
reveals that the medical officer of Bowring and Lady Curzon
Hospital has handed over one pair of black jeans pant and one
pink shirt of the victim. After production of these clothes on 8th
September 2015, the investigating officer has inserted the
same in PF No.166 of 2015 and submitted the property form
before the court on 9th September 2015. The victim-PW1 or
PW2-mother of the victim, have not deposed anything as to the
production of jeans pant or pink shirt belonging to the victim
before the medical officer. The investigating officer has not
whispered anything regarding production of medical
examination report of the victim. Even during the trial, the
prosecution has not taken any steps to produce the material
documents before the court.
- 12 -
12. The mother of the victim-PW2 has deposed in her
evidence that the police sent her daughter to Bowring and Lady
Curzon Hospital. The medical officer has examined her
daughter. Thereafter, the police took her daughter to the
Magistrate. During the course of cross-examination of PW1, it
was categorically denied that her daughter was produced
before the medical officer. Though the victim was examined by
the concerned medical officer, the investigating officer has not
collected any material in this regard. This material lapse
committed by the investigating officer will create reasonable
doubt as to the commission of alleged offence by the accused.
When the prosecution has failed to produce the best evidence
before the court, adverse inference has to be drawn against the
prosecution under Section 114(g) of Indian Evidence Act.
13. Though The Police took the victim to the hospital on
2nd September 2015, the victim was not produced before the
Magistrate on the same day or even the next day of the alleged
incident for recording statement under Section 164 of Code of
Criminal Procedure. Instead, the investigating officer has
produced the victim before the jurisdictional magistrate on 30th
October 2015. The statement recorded under Section 164 of
Code of Criminal Procedure which is marked as Exhibit P1, in
- 13 -
which the age of the victim is not mentioned. The investigating
officer has not whispered anything as to production of the
victim for recording statement and Section 164 of Code of
Criminal Procedure, immediately after the alleged incident.
14. The contents of Exhibit P2 reveal that PW2 is not an
eye-witness to the incident. When she visited the spot by
forcibly opening the door of the house of the accused, she
heard screaming of her daughter and she went there and found
that the accused was sleeping without his undergarment, and
her daughter was lying on him without pant and undergarment,
and on seeing the same, she made hue and cry and the
neighbours came and assaulted the accused. Thereafter, she
enquired with her daughter as to the incident and the victim
has told as to the rape committed by the accused. PW1-victim
has deposed the same in her evidence. During her cross-
examination, she has stated "C¥Àà ZÉÃgï ªÉÄÃ¯É ºÉýPÉÆlÖAvÉ £Á£ÀÄ
ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸Àj".
15. PW2-Thulasi has deposed in her evidence that on
the said date, after attending her regular work, she came back
home at about 2.00 pm and at that time victim was not found
in the house. She searched for her every where and when she
- 14 -
could not find her daughter, she called her daughter loudly. At
that time, she heard the sound of the victim from the house of
the accused, hence she knocked the door and forcibly entered
the house of the accused and saw that the victim minor girl in
the house of the accused without any dress on lower part of the
body. Accused was also seen only with a shirt and was without
clothes to the lower part of his body. The accused was in
drunken state at that time. She enquired with the victim girl.
Victim girl stated that the accused took her to his house,
removed the dress and inserted his penis into her vagina. PW2
has also deposed that the accused was under the influence of
alcohol at that time. On enquiry he did not give any reply.
PW2 has not deposed anything in the complaint-Exhibit P2 as
to the accused being under the influence of alcohol. For the
first time before the court, she has stated that the accused had
consumed alcohol.
16. PW3-Raja, father of the victim, is a hearsay
witness. In his cross-examination, he has clearly admitted that
on the day of the incident, accused had consumed alcohol.
17. PWs 4 and 5 are hearsay witnesses.
- 15 -
18. PW11-Sardar Pasha has deposed that on 2nd
September 2015, CW17 has deputed him to trace the accused.
He went to Jagdish Nagar, HAL where the public had assaulted
the accused and handed him over to the police. On enquiry, he
came to know the name of the accused who has committed
sexual assault. Exhibit P4, the physical examination report of
accused issued by the Bangalore Medical College and Research
Institute, reveals that on 3rd September 2015, the accused was
produced before the medical officer for medical examination
pertaining to Crime No.641 of 2015. During the course of
examination, the accused denied the alleged act. He has stated
that he has only removed her undergarment as it was soiled
and let her to go to the toilet located nearby. After
examination of this accused, the medical officer has given his
opinion that there is nothing to suggest that the person is
incapable of performing sexual intercourse.
19. PW8-Dr. K.V. Satish, who has examined the
accused, has not deposed anything as to the commission of
offence.
20. The order sheet maintained by the trial court in
crime No.641 of 2015 reveals that the accused was produced
before the court on 3rd September 2015 at 2.00 pm through PC
- 16 -
No.8854 and he was remanded to custody. The remand
application filed by the investigating officer before the court in
crime No.641 of 2015, reveals that the accused was arrested
on 2nd September 2015 and was produced before the Bowring
and Lady Curzon Hospital on the same day. The outpatient slip
issued by the said hospital reveals that the accused was
referred to forensic department and as the patient was alleged
to have been assaulted by the public, he was referred to OPD.
In this document it is also mentioned as to the alleged history
of assault by mob at 3:30 pm at Jagadish Nagar. It also
reveals that the accused was under the influence of alcohol,
and no external injuries were seen. This evidence placed by
the prosecution reveals that on the date of the incident, the
accused has consumed alcohol and as per the statement given
by the accused before the medical officer which is recorded by
the medical officer, it is stated that he only removed her
undergarment as it was soiled and let her to go to the toilet
located nearby.
21. As already discussed above, it is clear that though
the police have produced the victim before the medical officer,
the investigating officer has not produced the report of medical
examination of the victim. However, the prosecution has
- 17 -
produced the certificate of examination of the jeans pant and
shirt of the victim girl which are shown in certificate of
examination issued by the Deputy Director, Regional Forensic
Science Laboratory, Mysore in which it is clearly opined that
seminal stain was not detected on items 1 and 2.
22. A careful examination of the entire evidence on
record makes it crystal clear that there is no sufficient cogent,
corroborative, clinching or believable evidence before the court
to convict the accused for the offence under Section 6 of
POCSO Act and Sections 376 and 506 of Indian Penal Code.
However, the evidence of victim and her mother, is that the
accused has removed the undergarment of the victim and when
the victim screamed, upon hearing the scream of her daughter,
PW2-mother of victim, entered the house by forcibly opening
the door and found the victim there. Thereafter, the public
gathered, dragged the accused and assaulted him. Since the
investigating officer has not produced the medical examination
report of the victim, the non-production of said examination
report will create doubt as to the alleged commission of
aggravated penetrative sexual assault by the accused.
23. On careful examination of the materials placed
before this court, absolutely there is no evidence to constitute
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the offence punishable under Section 6 of POCSO Act.
However, the evidence placed by the prosecution reveals that
the accused has committed offence of sexual assault which is
punishable under Section 8 of POCSO Act. In the case on
hand, accused was arrested on 2nd September, 2015 and was
released on bail on 2nd February, 2016. Again, accused was
arrested and sent to custody on 3rd July, 2017 and was
released on 8th April, 2021. In the judgment of the trial Court,
it is stated that the period undergone by the accused in judicial
custody as three years, nine months and five days. The
judgment was pronounced on 31st March 2022 and the accused
was remanded to judicial custody and till this date the accused
is in judicial custody. On calculation of the days in
incarceration, it could be gathered that the accused is in judicial
custody for a period of 7 years, 10 months and 15 days.
24. When the accused has produced before the medical
officer, he has stated that, he has only removed her
undergarment as it was soiled and let her to go to the toilet
nearby, he ought to have produced the rebuttal evidence to the
statutory presumption under Sections 29 and 30 of POCSO Act.
But in the case on hand, the accused has not placed any
material to discard the presumption under Sections 29 and 30
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of POCSO Act pertaining to offence under Section 8 of the said
Act. Under Section 8 POCSO Act, whoever, commits sexual
assault, shall be punished with imprisonment of either
description for a term which shall not be less than three years
but which may extend to five years, and shall also be liable to
fine. Considering the period of sentence undergone by the
accused and the nature and gravity of offence, I am of the
opinion that it is just proper to impose punishment for the
offence punishable under Section 8 of POCSO Act and to
sentence the accused for a period of five years with fine of
Rs.1,000/-. Accordingly, I answer the point that arose for
consideration, partly in the affirmative.
25. In the result, I proceed to pass the following:
ORDER
i) Appeal is allowed in part;
ii) The judgment of conviction and order on
sentence passed in Special CC No.546 of
2015 by the Additional City Civil & Sessions
Judge-FTSC-II Bengaluru under Section 506
of Indian penal code, is confirmed;
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iii) The judgment of conviction dated 30th March
2022 and order on sentence dated
31stMarch, 2022 passed in Special CC No.546
of 2015 by the Additional City Civil &
Sessions Judge-FTSC-II, Bengaluru
convicting the accused under Section 376 of
Indian Penal Code and Section 6 of the
POCSO Act, is modified;
iv) Accused is convicted for the offence
punishable under Section 8 of POCSO Act;
v) Accused shall undergo simple imprisonment
for a period of five years for the offence
punishable under Section 8 of POCSO Act,
2012 and to pay a fine of Rs.1,000/-, in case
of default of payment of fine, the accused
shall undergo simple imprisonment for a
period of three months;
vi) The sentence passed by the trial court in
respect of offence under Section 506 of
Indian Penal Code to undergo simple
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imprisonment for a term of one year, is
confirmed;
vii) Both the sentences shall run concurrently;
viii) The period of imprisonment undergone by
the accused shall be given set off under
Section 428 of Code of Criminal Procedure;
ix) Since the accused has already completed the
sentence, Registry is directed to send the
intimation to the concerned Jail authority to
release the accused, if he is not involved in
any other case.
Sd/-
(G BASAVARAJA)
JUDGE
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