[Cites 14, Cited by 0]
Karnataka High Court
Modin vs The State Of Karnataka And Anr on 11 March, 2026
-1-
NC: 2026:KHC-K:2305
CRL.A No. 200335 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.200335 OF 2024 (U/S 14 (A))
BETWEEN:
MODIN S/O IBRAHIM MUKTEDAR,
AGE: 24 YEARS, OCC: LABOUR,
R/O INDRA NAGAR, HUDGI VILLAGE,
TQ: HUMNABAD, DIST: BIDAR-585329.
...APPELLANT
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH HUMNABAD POLICE STATION,
DIST: BIDAR-585401,
Digitally signed by R/BY ADDL. SPP,
SHIVALEELA HIGH COURT OF KARNATAKA,
DATTATRAYA UDAGI
Location: HIGH KALABURAGI BENCH.
COURT OF
KARNATAKA
2. SMT. MAHANANDA W/O SHIVARAY,
AGE: 37 YEARS, OCC: COOLIE,
R/O INDRA NAGAR, HUDGI VILLAGE,
TQ: HUMNABAD, DIST: BIDAR-585329.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1;
NOTICE TO R2 IS SERVED, UNREPRESENTED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14(A)
OF SC/ST (POA) ACT, PRAYING TO ADMIT THIS APPEAL, CALL
-2-
NC: 2026:KHC-K:2305
CRL.A No. 200335 of 2024
HC-KAR
FOR THE RECORDS FROM THE COURT BELOW AND SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 08.10.2024 PASSED BY THE II ADDL. DISTRICT AND
SESSIONS JUDGE, BIDAR SITTING AT BASAVAKALAYAN IN
SPL. C. NO.5015/2022 AND CONSEQUENTLY ACQUIT THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 366(A), 376(2)(N) OF IPC AND UNDER SECTION 6
OF POCSO ACT AND SECTIONS 3(1)(W), 3(2)(VA) OF SC/ST
ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
The appellant has preferred this appeal against the
judgment of conviction dated 08.10.2024 and order of
sentence dated 09.10.2024, passed in Special Case
No.5015/2022, by the II Additional District and Sessions
Judge, Bidar, Sitting at Basavakalyan.
2. The parties are referred to by the same rank
what they had before the trial Court.
NC: 2026:KHC-K:2305
HC-KAR
3. The brief facts leading to this appeal are that:
The Deputy Superintendent of Police, Humnabad
Circle laid the chargesheet against the accused for the
commission of offences under Sections 366A and
376(2)(n) of the Indian Penal Code (for short, 'the IPC'),
Sections 4 and 6 of the Protection of Children from Sexual
Offences Act (for short, 'the POCSO Act') and Sections
3(1)(w), 3(2) (va) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act (for short, 'the SC/ST
(POA) Act').
4. It is alleged by the prosecution that the accused
and victim girl are residents of Indra Nagar, Hudgi village,
Humnabad Taluk. The accused knowingly well that the
victim girl is a minor and belong to the Scheduled Tribe
community, seduced her stating that he is loving her since
three years and for the past one year, he used to commit
penetrative sexual assault on the victim girl when nobody
was in the house. Lastly, the accused has forcible sexual
NC: 2026:KHC-K:2305
HC-KAR
intercourse with the victim on 25.12.2021. The accused
used to instigate the victim to run away from house to get
married. On 07.02.2022 at about 03.00 p.m., when the
victim came to Humanabad bus stand to go to Kanakatta
village, accused called her through phone, seduced and
forcibly took her to Hyderabad, Bengaluru and then to
Karwar and on 27.02.2022 at about 10.00 a.m., left her at
Humnabad. Because of sexual assault upon victim girl, she
became two months pregnant. Thus, the accused has
committed the offences punishable under Sections 366A
and 376(2)(n) of the IPC, Sections 4 and 6 of the POCSO
Act and Sections 3(1)(w), 3(2) (va) of the SC/ST (POA)
Act.
5. During the course of investigation, accused
was arrested and remanded to judicial custody. Till date,
the accused is in judicial custody.
6. On hearing both sides, the Trial Court framed
the charges for the aforesaid offences. The same was
read over and explained to the accused. The accused,
NC: 2026:KHC-K:2305
HC-KAR
having understood the same, pleaded not guilty and
claimed to be tried.
7. In order to prove the guilt of the accused,
prosecution examined eighteen witnesses as, PW.1 to
PW.18, thirty-six documents were marked as Exhibit P.1 to
Exhibit P.36 and nine material objects were marked as
M.O.1 to M.O.9. On closure of evidence on the prosecution
side, the accused statement under Section 313 of the
Criminal Procedure Code (for short, 'the Cr.P.C.') was
recorded. The accused has totally denied the evidence of
the prosecution witnesses. He did not choose to lead any
defence evidence on his behalf. However, he has stated in
his statement that:
"PW1 gÀªÀgÀÄ vÀ£Àß UÀAqÀ£À PÉÆ É ªÀiÁrzÀÄÝ, £Á£ÀÄ £ÉÆÃrzÉÝãÉAzÀÄ
ªÀÄvÀÄÛ £À£Àß ¨Á¬Ä ªÀÄÄaѸÀ®Ä F jÃw ¸ÀļÀÄî ¥ÀæPÀgÀt £À£Àß ªÉÄà É
zÁR°¹gÀÄvÁÛ¼É."
8. Having heard the arguments on both sides, the
Trial Court has convicted the accused for the offences
NC: 2026:KHC-K:2305
HC-KAR
punishable under Sections 366A, 376(2)(n) of the IPC,
Section 6 of the POCSO Act and Sections 3(1)(w),
3(2)(va) of the SC/ST (POA) Act and sentenced to undergo
simple imprisonment for five years and to pay fine of
Rs.5,000/- for the offence punishable under Section 366A
of the IPC. Further, the accused is sentenced to undergo
rigorous imprisonment for ten years and to pay fine of
Rs.10,000/- for the offence punishable under Section
376(2) (n) of the IPC. Further, the accused is sentenced to
undergo rigorous imprisonment for twenty years and to
pay fine of Rs.20,000/- for the offence punishable under
Section 6 of the POCSO Act. Further, the accused is
sentenced to undergo rigorous imprisonment for six
months and to pay fine of Rs.5,000/- for the offence
punishable under Sections 3(1)(w), 3(2)(va) of the SC/ST
(POA) Act.
9. Being aggrieved by the judgment of conviction
and order of sentence, the accused has preferred this
appeal.
NC: 2026:KHC-K:2305
HC-KAR
10. Heard learned counsel for the appellant and
learned High Court Government Pleader appearing for
respondent No.1/State.
11. The learned counsel for the appellant would
submit that the impugned judgment of conviction and
order of sentence passed by the Trial Court is manifestly
illegal, arbitrary, and against the facts and evidence on
record, and also against the well-established principles
governing the criminal law. Hence, deserves to be set
aside. PW.2, being the victim girl has not deposed about
the sexual intercourse by the accused on her. She has also
denied Exhibits P.6, 7 and 19 DNA report. PW.8, PW.10
and PW.11, who are experts with regard to the medical
examination of the victim and accused, but the evidence
and reports issued by them as per Exhibits P.7, 17 to 19
and 22 to 25 and M.Os.1 to 5 are not admissible when the
mahazar witnesses have not supported with regard to the
alleged blood sample of the accused drawn by the doctor
NC: 2026:KHC-K:2305
HC-KAR
PW.10 at Sub-Jail Humnabad. Therefore, it is fatal to the
case of the prosecution. Therefore, it creates doubt about
the genuineness of the DNA report Ex.P.19. That, looking
into the Ex.P19 and evidence of PW.8, PW.10 and 11,
there are major inconsistencies with regard to dates of
collecting the foetus and forwarding the same to the
concerned authority. Apart from that, the procedure for
DNA test is not followed. So, it appears that there is
tampering with the alleged blood sample of the accused
and no proper procedure is followed for drawing the
alleged blood samples and there was a every possibility of
tampering of alleged blood samples and there is inordinate
delay in reporting the DNA test. Hence, it creates a room
for suspicion about DNA report.
12. It is further contended by the learned counsel
for the appellant that PW.12 Head Master issued Ex.P.26
and Ex.P.27. He entered the date of birth only on the
strength of 'Janma Kundli' and the said document was not
at all collected and produced before the Court and apart
NC: 2026:KHC-K:2305
HC-KAR
from that, Ex.P.33 is not a birth certificate. Hence,
prosecution utterly failed to prove the date of birth of the
victim girl as per the Rule 94 of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 (for short, 'the JJ
Rules').
13. Further, it is contended that the victim girl is
more than 18 years even as per dental report and in view
of the settled proposition of law, the Trial Court ought to
have extended the benefit of two years.
14. It is further submitted that PW.2, being the
victim girl not at all supported the case of the prosecution.
Since the prosecution has failed to prove that the victim
girl was a minor at the time of the alleged offence, the
question of committing an offence under the penal
provisions of the POCSO Act does not arise. It is
contended that absolutely there are no evidence to convict
the accused for the other offences. On all these grounds,
he prays to allow this appeal. To substantiate his
- 10 -
NC: 2026:KHC-K:2305
HC-KAR
arguments, learned counsel for the appellant relied upon
the judgments of the Division Benches of this Court in
Criminal Appeal No.100504/2021, decided on
05.06.2024 in the case of State of Karnataka Vs.
Malleshi and Another and in Criminal Appeal
No.100570/2022, decided on 10.07.2025, in the case
of State of Karnataka Vs. Sri. Nagesh.
15. Per contra, learned High Court Government
Pleader would submit that the Trial Court has properly
appreciated the evidence on record in a proper
perspective. It is submitted that there are no grounds to
interfere with the impugned judgment of conviction and
order of sentence passed by the Trial Court and prays to
dismiss the appeal.
16. Having heard the arguments on both sides and
on perusal of the materials available on record, the
following points would arise for my consideration:
- 11 -
NC: 2026:KHC-K:2305
HC-KAR
"1. Whether the prosecution proves beyond all
reasonable doubt that the victim was minor as
on the date of commission of offence as defined
under Section 2(d) of the POCSO Act?
2. Whether the prosecution proves beyond all
reasonable doubt that the accused has
committed offence under Section 6 of the
POCSO Act?
3. Whether the Trial Court is justified in convicting
the accused for the offences punishable under
Sections 366A, 376(2)(n) of the IPC and
Sections 3(1)(w) and 3(2)(va) of the SC/ST
(POA) Act.
4. What Order?
Point No.1:
17. It is alleged by the prosecution that the
accused and victim girl are residents of Indra Nagar, Hudgi
village, Humnabad Taluk. The accused knowingly well that
the victim girl is a minor and belong to the Scheduled
Tribe community, seduced her stating that he is loving her
- 12 -
NC: 2026:KHC-K:2305
HC-KAR
since three years and for the past one year, he used to
commit penetrative sexual assault on the victim girl when
nobody was in the house. Lastly, the accused has forcible
sexual intercourse with the victim on 25.12.2021. The
accused used to instigate the victim to run away from
house to get married. On 07.02.2022 at about 03.00 p.m.,
when the victim came to Humanabad bus stand to go to
Kanakatta village, accused called her through phone,
seduced and forcibly took her to Hyderabad, Bengaluru
and then to Karwar and on 27.02.2022 at about 10.00
a.m., left her at Humnabad. Because of sexual assault
upon victim girl, she became two months pregnant.
18. To prove the age of the victim girl, the
prosecution has produced Ex.P.26 school admission
extract in which the name of the victim girl is shown and
her date of birth is shown as 23.01.2005. To prove this
document, the prosecution has examined PW.12
Vijayakumar, Head Master of the school, who has deposed
as to the issuance of Exhibits P.26 and 27 at the request
- 13 -
NC: 2026:KHC-K:2305
HC-KAR
of the police. During the course of cross-examination of
PW.12, he has clearly admitted that on the basis of 'Janma
Kundli', the school authorities have entered the date of
birth of the victim. Further, he has deposed that at the
time of admission, the parents of the victim girl have
produced 'Janma Kundli' and after filling up the
application, the school authorities have returned the
'Janma Kundli' to the parents. However, they have not
obtained the Xerox copy of the said document.
19. PW.1, Mahananda, the mother of victim has not
whispered anything about the 'Janma Kundli' said to have
been given to the school authorities. The Investigating
Officer has not whispered anything about the non-
production of 'Janma Kundli'. The Investigating officer has
not produced the birth certificate of the victim and he has
not whispered anything about the non-production of birth
certificate of the victim girl. Accordingly, the Investigating
Officer has failed to comply the mandatory provision of
Rule 94 of the JJ Rules.
- 14 -
NC: 2026:KHC-K:2305
HC-KAR
20. With regard to the medical evidence concerning
the age of the victim, the prosecution has produced Exhibit
P.18, the dental examination report, which indicates the
approximate age of the victim as 18 years. The Dental
Surgeon who issued Exhibit P.18, has not been cited as a
witness. Furthermore, the prosecution has not examined
him before the Court by filing the necessary application.
Therefore, an adverse inference can be drawn against the
prosecution that, had the concerned dentist been
examined before the Court, his testimony would have
been unfavorable to the prosecution's case. The opinion
given by the Dental Surgeon as per Exhibit P18 serves to
falsify the evidence of PW.12. Moreover, mere production
of Exhibit P.26 does not satisfy the requirements of Rule
94 of the JJ Rules. Viewed from multiple angles, the
prosecution has failed to prove that the victim was a
"child" as defined under Section 2(d) of the POCSO Act.
Accordingly, I answer point No.1 in the Negative.
- 15 -
NC: 2026:KHC-K:2305
HC-KAR
Point No.2:
21. Since the prosecution has failed to prove that
the victim was child on the date of the commission of the
offence, the question of committing offence under the
penal provisions of the POCSO Act does not arise.
Accordingly, Point No.2 is answered in the Negative.
Point No.3:
22. With regard to the offences punishable under
Sections 366A and 376(2)(n) of the IPC and under
Sections 3(1)(w) and 3(2)(va) of the SC/ST (POA) Act, the
victim PW.2, has not supported the prosecution's case.
PW.1, the mother, is a hearsay witness. Even as per
Ex.P.5, the statement of the victim under Section 164(5)
of the Cr.P.C., she has not uttered anything against the
accused. The victim herself has stated that the accused
did not commit rape or kidnap her. Therefore, the question
of committing the offences punishable under Sections
366A and 376(2)(n) of the IPC does not arise. Concerning
the penal provisions of the SC/ST (POA) Act also, there is
- 16 -
NC: 2026:KHC-K:2305
HC-KAR
absolutely no evidence to prove that the accused
committed the said offence. Considering the facts and
circumstances of this case, and also bearing in mind the
decisions relied upon by the learned counsel for the
appellant, I am of the opinion that the prosecution has
failed to prove the guilt of the accused for the commission
of alleged offences. Hence, Point No.3 is also answered in
the Negative.
23. For the aforesaid reasons and discussions, I
proceed to pass the following order:
ORDER
i. The Criminal Appeal is Allowed.
ii. The judgment of conviction dated 08.10.2024
and order on sentence dated 09.10.2024
passed by the II Additional District and Sessions
Judge, Bidar, Sitting at Basavakalyan in Special
Case No.5015/2022, is set aside.
- 17 -
NC: 2026:KHC-K:2305
HC-KAR
iii. The accused is acquitted of the offences under
Sections 366A and 376(2)(n) of the Indian
Penal Code, under Section 6 of the Protection of
Children from Sexual Offences Act and under
Sections 3(1)(w) and 3(2)(va) of the Scheduled
Castes/Scheduled Tribes (Prevention of
Atrocities) Act.
iv. The Registry is directed to send intimation to
the concerned jail authorities through E-mail to
release the accused, if he is not involved in any
other cases.
Sd/-
(G BASAVARAJA)
JUDGE
RSP/TIN
List No.: 1 Sl No.: 56
