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Karnataka High Court
Raju S/O Papu Rathod @ Lamani vs The State Of Karnataka on 6 March, 2026
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CRL.A No. 200064 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 200064 OF 2022
(374(Cr.PC)/415(BNSS))
BETWEEN:
RAJU S/O PAPU RATHOD @ LAMANI
AGE: 35 YEARS, OCCU: COOLIE,
R/O UPPALADINNI TANDA,
TQ: BASAVANA-BAGEWADI,
DIST: VIJAYAPURA-586213
...APPELLANT
(BY SRI. R. S. LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE SHO.,
Digitally signed by
SHIVALEELA BASAVANA-BAGEWADI P.S.,
DATTATRAYA
UDAGI REP. BY THE ADDL. STATE PUBLIC PROSECUTOR
Location: HIGH HIGH COURT OF KARNATAKA
COURT OF
KARNATAKA KALABURAGI BENCH -585102
2. VICTIM REP. BY HER FATHER
BASAVARAJ S/O PUNAPPA RATHOD
AGE: 61 YEARS, OCC: PENSIONER
R/O INDIRA NAGAR
BASAVAN BAGEADI
DIST: VIJAYAPUR-586203.
...RESPONDENT
(BY SRI.JAMADAR SHAHABUDDIN, HCGP FOR R1;
R2 SERVED)
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CRL.A No. 200064 of 2022
HC-KAR
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
(OLD) U/SEC. 415 OF BNSS (NEW) PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DT. 07.07.2021
AND 08.07.2021 PASSED IN SPECIAL CASE (POCSO.)
NO.16/2016 BY THE HONOURABLE ADDL. SESSIONS JUDGE
AND FTSC-I (POCSO), VIJAYAPURA AND ACQUIT THE
APPELLANT OF ALL THE CHARGES.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
The appellant/accused has preferred this appeal
against the judgment of conviction dated 07.07.2021 and
order on sentence dated 08.07.2021 in Special Case
(POCSO) No.16/2016 by the Addl. Sessions Judge/FTSC-I
(POCSO), Vijayapura (for short, 'the Trial Court').
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. The brief facts leading to filing of this appeal is
that, Basavana Bagewadi Police have laid charge-sheet
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against the accused for the offence punishable under
Sections 344, 366, 376 of IPC and Section 5(l) of the
Protection of Children from Sexual Offences Act, 2012 (for
short, 'the POCSO Act').
4. It is alleged by the prosecution that on
01.10.2015 at about 12 hours the victim was allowed to
accompany the accused to marry him and thereby
depriving the custody of victim who is minor from her
parents, the guardian of the victim, and thereby
committed offence of kidnapping and thereafter detained
the victim from the custody of the accused from
01.10.2015 to 08.01.2016 (exceeding 10 days) thereby
committed the offence of wrongful confinement. Further it
is alleged that during the stay under the custody of
accused, the accused has occasioned sexual intercourse 3
to 4 times a week knowing that the victim is minor. Thus,
the accused has committed the offence punishable under
Section 376, 366, 344 of IPC and Section 5(l) read with 6
of POCSO Act.
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5. After filing the charge-sheet, case was
registered in Special Case (POCSO) No.16/2016. Accused
appeared before the Trial Court and enlarged on bail. The
Trial Court has framed the charges for the alleged
offences. The same was read over and explained to the
accused. Having understood the same, accused pleaded
not guilty and claimed to be tried.
6. To prove the guilt of the accused, the
prosecution, in all, has examined 19 witnesses as PWs.1 to
19; and got marked 19 documents as Exs.P1 to P19. On
closure of prosecution side evidence, statement under
Section 313 of Cr.P.C. was recorded. Accused has denied
the charges leveled against him. However, he did not
choose to lead any defence evidence on his behalf.
7. Having heard the arguments of both sides, the
Trial Court has convicted the accused for the offence
punishable under Section 366, 344, 376 of IPC and
Section 5(l) read with Section 6 of the POCSO Act and
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passed sentence. Being aggrieved by the judgment of
conviction and order on sentence, the appellant has
preferred this appeal.
8. The learned counsel for the appellant would
submit that the judgment of conviction and order on
sentence passed by the Trial Court is legally incorrect and
suffers from non-application of mind, as same is against
the facts, evidence and materials on record. The Trial
Court has ignored the elementary principles of evidence
and the finding recorded by the Trial Court is against the
basic points of criminal jurisprudence. The Investigating
Officer has not complied the mandatory provisions of
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (for short, 'the J.J.Act'). The
Investigating Officer has not produced the birth
certificate/SSLC certificate/ossification certificate. The
Investigating Officer has not explained anything as to non
production of these materials before the Court. The
Investigating Officer has produced a school certificate,
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which is at Ex.P11. On the basis of Ex.P11, Ex.P10 is
issued, which is not permissible under law and also same
does not come under the provisions of Section 94 of
J.J.Act.
9. To substantiate his arguments, he relied on the
decision of the Hon'ble Supreme Court in the case of
P.Yuvaprakash v. State Rep. by Inspector of Police
reported in AIR 2023 SC 3525. Further he would submit
that while recording statement under Section 164(5) of
Cr.P.C. which is marked at Ex.P5, the victim has not
whispered anything as to the alleged commission of rape.
The evidence of PW.3-victim is not consistent with the
statement under Section 164 of Cr.P.C. The medical
evidence is also not supported the case of the prosecution.
The Trial Court has not properly appreciated the evidence
on record in a proper perspective. On all these grounds,
sought to allow the appeal.
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10. The learned High Court Government Pleader
would submit that, the Trial Court has properly
appreciated the evidence on record in a proper perspective
and there are no grounds to interfere with impugned
judgment of conviction and order on sentence passed by
the Trial Court and sought for dismissal of appeal.
11. Having heard the arguments on both sides, the
following points would arise for consideration:
1) Whether the prosecution proves beyond all
reasonable doubt that as on the date of
commission of offence, the victim was a
child as defined under Section 2(d) of the
POCSO Act?
2) Whether the prosecution proves beyond all
reasonable doubt that the accused has
committed the offence under Section 5(l)
read with Section 6 of POCSO Act?
3) Whether the prosecution proves beyond all
reasonable doubt that the accused has
committed the offence under Section 344,
366 and 376 IPC?
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4) What order?
12. My answer to the above points are as under:
Point No.1: In the Negative
Point No.2: In the Negative
Point No.3: In the Negative
Point No.4: As per final order
13. Point No.1: It is the case of the prosecution
that the date of birth of the victim was 01.06.1999 and as
on the date of offence, her age was 16 years 4 months. To
substantiate this, the Investigating Officer has produced
Exs.P10 and 11. Ex.P10 is the caste and birth certificate
issued by the Headmaster, New High School, Basavana
Bagewadi. Ex.P11 is the Admission Register Extract. To
substantiate these documents, prosecution has examined
PW.7-Prema Bhagat, Head Master, New High School,
Basavana Bagewadi. She has deposed as to the issuance
of Exs.P10 and P11. During her cross-examination, she
has clearly admitted that the parents of the victim has not
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informed as to the date of birth of the victim. The
Investigating Officer has not explained anything as to non-
production of birth certificate, SSLC certificate or
ossification certificate. The Investigating Officer has not
complied with the mandatory provisions of Section 94 of
J.J.Act.
14. The Hon'ble Supreme Court in the case of
P.Yuvaprakash (supra), at paragraph Nos.18 and 19 has
held as under:
"18. Reverting to the facts of this case, the
headmaster of M's School, CW-1, was summoned by
the court and produced a Transfer Certificate (Ex.C-
1). This witness produced a Transfer Certificate
Register containing M's name. He deposed that she
had studied in the school for one year, i.e., 2009-10
and that the date of birth was based on the basis of
the record sheet given by the school where she
studied in the 7th standard. DW-2 TMT Poongothoi,
Headmaster of Chinnasoalipalayam Panchayat
School, answered the summons [2012] 9 SCR
224 served by the court and deposed that 'M' had
joined her school with effect from 03.04.2002 and
that her date of birth was recorded as 11.07.1997.
She admitted that though the date of birth was
based on the birth certificate, it would normally be
recorded on the basis of horoscope. She conceded to
no knowledge about the basis on which the
document pertaining to the date of birth was
recorded. It is stated earlier on the same issue, i.e.,
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the date of birth, Thiru Prakasam, DW-3 stated that
the birth register pertaining to the year 1997 was not
available in the record room of his office.
19. It is clear from the above narrative that
none of the documents produced during the trial
answered the description of "the date of birth
certificate from the school" or "the matriculation or
equivalent certificate" from the concerned
examination board or certificate by a corporation,
municipal authority or a Panchayat. In these
circumstances, it was incumbent for the prosecution
to prove through acceptable medical
tests/examination that the victim's age was below 18
years as per Section 94(2)(iii) of the JJ Act. PW-9,
Dr. Thenmozhi, Chief Civil Doctor and Radiologist at
the General Hospital at Vellore, produced the X-ray
reports and deposed that in terms of the
examination of M, a certificate was issued stating
"that the age of the said girl would be more than 18
years and less than 20 years". In the cross-
examination, she admitted that M's age could be
taken as 19 years. However, the High Court rejected
this evidence, saying that "when the precise date of
birth is available from out of the school records, the
approximate age estimated by the medical expert
cannot be the determining factor". This finding is, in
this court's considered view, incorrect and erroneous.
As held earlier, the documents produced, i.e., a
transfer certificate and extracts of the admission
register, are not what Section 94 (2) (i) mandates;
nor are they in accord with Section 94 (2) (ii)
because DW-1 clearly deposed that there were no
records relating to the birth of the victim, M. In these
circumstances, the only piece of evidence, accorded
with Section 94 of the JJ Act was the medical
ossification test, based on several X-Rays of the
victim, and on the basis of which PW-9 made her
statement. She explained the details regarding
examination of the victim's bones, stage of their
development and opined that she was between 18-
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20 years; in cross-examination she said that the age
might be 19 years. Given all these circumstances,
this court is of the opinion that the result of the
ossification or bone test was the most authentic
evidence, corroborated by the examining doctor, PW-
9."
15. In the case on hand, the victim herself has
stated her age as '18' years. The Medical Officer has not
complied the mandatory provisions of Section 164-A of
Cr.P.C. and also Section 34 of POCSO Act. Viewed from
any angle, the prosecution has failed to place any cogent,
corroborative or acceptable legal evidence to prove the
age of the victim. Accordingly, prosecution has failed to
prove beyond all reasonable doubts that the victim come
under the definition of "child" as defined under Section
2(d) of POCSO Act. Hence, I answer point No.1 in the
Negative.
16. Point No.2: Since the prosecution has failed to
prove that the victim was a child as defined under Section
2(d) of POCSO Act as on the date of commission of
offence, the question of committing offence under the
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penal provision of POCSO Act, does not arise. Accordingly,
I answer point No.2 in the Negative.
17. Point No.3: With regard to the offence under
Section 344, 366 and 376 are concerned, the Investigating
Officer has produced the victim before the jurisdictional
Magistrate. The Magistrate has recorded the statement of
victim under Section 164(5), which is at Ex.P5. The same
is recorded on 11.01.2016. In this statement under
Section 164(5) of Cr.P.C., the victim has not whispered
anything as to her wrongful confinement or rape said to
have been committed by the accused. On the contrary,
she has clearly deposed on oath that the accused has not
given type of ill-treatment to her.
18. PW.3-victim, in her evidence has deposed that
accused informed that he loves her. For that she refused.
Accused used to torture her stating that he loves her.
Then he threatened that if she does not have love affair
with him, he would tell each and everyone that he is loving
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her and would spoil her name in the society. So under
fear, she started to love him. Accused used to come to her
house when nobody was there in the house and committed
penetrative sexual assault on her. She told him that he
should not come to her house. Then accused told that we
should not stay here and told her to come over to Almatti.
Accordingly, she went to Almatti. When she was in Almatti
railway station, accused came there and took her to
Bagalkot in an auto. Then they went to Belagavi by bus.
From Belagavi they went to Kudal in Maharashtra. He told
that, he has friends at Kudal and took her there. They
stayed in a room near railway station for 10-12 days.
When she was at Kudal, accused has committed
penetrative sexual assault on her. He did not get any job,
so, he took her to Telegaon area at Pune. He took a room
on rent, which belongs to Shelke. They stayed there for
two months. Accused has committed penetrative sexual
assault on her against her will. Again when he did not get
any job, once again accused took her to Kudal. At Kudal
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once again they stayed 10-12 days. During this period also
once again accused harassed her. So she called her father
on phone. Accused told that she should not inform where
exactly staying to the parents. She did not tell where she
was. Then, when she was about to inform, he has
snatched the phone. Later, the police came to the spot.
Accused ran away from the spot leaving her, when he saw
the police. Police took her back to the police station. The
incident has occurred about three years ago. Her parents
came to know about her and arrived to the police station.
She told everything to her parents. She narrated all the
incidents to the parents and the police. She gave
statement as per Ex.P4. Then she was taken to the
hospital for medical examination. She gave her statement
before the Magistrate as per Ex.P5.
19. On careful examination of the evidence of PW.1,
it is crystal clear that admittedly she was having love affair
with the accused and she voluntarily went along with him
and stayed at Kudal for 8-10 days and at Talegaon for a
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period of two months. The statement under Section
164(5) Cr.P.C., which is marked as Ex.P5 has not been
disputed by the victim. She has clearly deposed in her
evidence during trial, that she has given statement before
the Magistrate as per the contents of Ex.P5. When the
victim herself has admitted the statement under Section
164(5) of Cr.P.C., that the accused has not committed any
offence, the Investigating Officer ought not to have filed
the charge sheet against the accused. However, on the
basis of the school certificate, the Investigating Officer has
considered that the victim was minor at the time of
incident and filed the charge sheet for the alleged
commission of offences. The prosecution has failed to
place cogent, convincing, clinching, corroborative and
acceptable credible evidence before the Court to prove the
guilt of the accused for the offence under Sections 344,
366 and 376 IPC. Further, the prosecution has failed to
prove that the accused has committed the alleged
offences. Hence, I answer point No.3 in negative.
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20. Point No.4: For the aforestated reasons and
discussions, I proceed to pass the following:
ORDER
(a) The appeal is allowed.
(b) The judgment of conviction dated 07.07.2021
and order and sentence dated 08.07.2021
passed in Special Case (POCSO) No.16/2016
by the Addl. Sessions Judge/FTSC-I (POCSO),
Vijayapura, is hereby set aside.
(c) Consequently, the appellant-accused is
acquitted of the offences punishable under
Sections 366, 344 376 of IPC and Section 6 of
Protection of Children from Sexual offence
Act.
(d) Bail bond of the accused and that of his
sureties, if any, shall stand cancelled.
(e) Fine amount, if any, deposited by the
appellant/accused is ordered to be refunded
to him on due identification after appeal
period is over.
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Registry to send back the Trial Court records along
with certified copy of this judgment to the concerned Court
forthwith.
Sd/-
(G BASAVARAJA)
JUDGE
SDU,MSR
List No.: 1 Sl No.: 26
CT-BH
