[Cites 11, Cited by 0]
Karnataka High Court
Sri. Dyamanna Alias Devappa S/O. ... vs The State Of Karnataka on 26 March, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2026:KHC-D:4761-DB
CRL.A No. 100599 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 26TH DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
CRIMINAL APPEAL NO.100599 OF 2024 (C)
BETWEEN:
SRI. DYAMANNA @ DEVAPPA S/O. BALADANDAPPA,
AGE: 54 YEARS, OCC. AGRICULTURE,
R/O. JANGAMARAKALGUDI VILLAGE-583224,
TAL. GANGAVATHI, DIST. KOPPAL.
...APPELLANT
(BY SRI. VISHWAPRAKASH UPPIN, ADVOCATE FOR
SRI. SRINAND A. PACHHAPURE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH RURAL POLICE STATION,
GANGAVATHI, NOW REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD,
BENCH AT DHARWAD-580011.
VINAYAKA
BV 2. KUMARI LAXMI D/O. BETTAPPA KUBBER,
AGE: 19 YEARS, OCC. HOUSEHOLD WORK,
Digitally signed R/O. 2ND WARD, JANGAMARKALGUDI-583224,
by VINAYAKA B
V TAL. GANGAVATHI, DIST. KOPPAL.
Date: 2026.03.28
10:16:55 +0530
...RESPONDENTS
(BY SRI. M.B. GUNDAWADE, ADDITIONAL SPP FOR R1;
SRI. S.P. KANDAGAL, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., (SECTION 415 (2) OF BNSS), PRAYING TO CALL FOR THE
RECORDS IN SPL. S.C. POCSO NO.37/2020 AND SET ASIDE THE
JUDGMENT OF CONVICTION DATED 20.06.2023 AND ORDER OF
SENTENCE DATED 22.06.2023 PASSED BY THE COURT OF THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1, AT KOPPAL IN
SPL.S.C. POCSO NO.37/2020 AND ACQUIT THE APPELLANT FROM THE
OFFENCES PUNISHABLE UNDER SECTION 376(3) AND 506 OF IPC AND
SECTION 4(2) AND 6 OF POCSO ACT, IN THE INTEREST OF JUSTICE.
-2-
NC: 2026:KHC-D:4761-DB
CRL.A No. 100599 of 2024
HC-KAR
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard the learned counsel for the appellant, learned Addl.
SPP for the respondent No.1/State as well as learned counsel for
the respondent No.2/Complainant.
2. This appeal is filed against the judgment of conviction
dated 20.06.2023 and order of sentence dated 22.06.2023
passed in SPL.S.C. POCSO NO.37/2020 by the Additional District
and Sessions Judge, FTSC-1, at Koppal (for short, 'Trial Court') for the
offence punishable under Section 376(3) and 506 of IPC and
Sections 4(2) and 6 of POCSO Act, 2012.
3. The factual matrix of the case of prosecution is that
PW3-victim is a minor girl aged about 15 years and accused No.1
and 2 are the residents of Jangamarakalgudi Village, Gangavathi
Taluk, Kappal District, which comes within the limits of
Gangavathi Rural Police Station. When the victim was going to
house of accused No.1 to watch TV, accused No.1 used to touch
NC: 2026:KHC-D:4761-DB
HC-KAR
her body, hands and chin. That on 01.01.2020 at about 11.00
a.m., Accused No.1 forcibly had sexual intercourse with the
victim for the first time, despite her resistance and threatened
her life with dire consequences, if she discloses the same to
anybody and further warned her to come to his house whenever
he calls upon her. The accused No.1 often called her to watch TV
and had forcible sexual intercourse with her several times in his
house. Though in the charge sheet, an allegation is made against
accused No.2 and accused No.2 is acquitted by the trial Court
and hence, no appeal against the acquittal and therefore, the
other factual aspects in respect of accused No.2 is not mentioned
in the present case. The police investigated the matter in respect
of both the incident of accused No.1 and 2 and filed the charge
sheet and after filing of the charge sheet, both accused No.1 and
2 were tried before the trial Court, since both of them claims trial
and they did not plead guilty.
4. The prosecution in order to prove the charges,
examined PW1 to PW17 and got marked on Ex.P1 to P55 and
MOs 1 to 22. On behalf of the defence, accused No.1 examined
himself as DW1 and got marked document D1 to D3. The trial
Judge after completion of the prosecution evidence, examined
NC: 2026:KHC-D:4761-DB
HC-KAR
both accused Nos.1 and 2 by invoking Section 313 of Cr.P.C.
Both of them have denied the incriminating evidence. Accused
No.2 submits that no defence evidence but accused No.1 has
been examined. However, accused No.1 submitted his defence
evidence and filed written statement stating that he had been
intentionally implicated in the case. The accused No.1 is having a
wife, children, daughter-in-law and grandchildren, who were
residing along with him in a small house. It is contended that in
the said situation, it is impossible to commit alleged rape on
victim on several occasions, that too in his house. The trial Judge
having considered both oral and documentary evidence acquitted
accused No.2 and convicted accused No.1. The trial Judge
imposed a sentence of rigorous imprisonment for the remainder
of his natural life, along with fine of Rs.25,000/-. Being
aggrieved by judgment of conviction and sentence, the present
appeal is filed before this Court.
5. The main contention of the counsel appearing for the
appellant before this Court is that the trial Court committed an
error in accepting the evidence of PW-2 with regard to her age is
concerned, believing the documents marked as Exs.P25 to P27.
The counsel further submits that the very approach of the trial
NC: 2026:KHC-D:4761-DB
HC-KAR
Court is erroneous. The counsel in support of his argument relies
upon the judgment of the Hon'ble Apex Court in the case of
P. Yuvaprakash V/s. State represented by Inspector of
Police1, decided on 18.07.2023. The counsel brought to the
notice of this Court the paragraph No.13 and so also the
paragraph No.14. The counsel also relies upon the judgment of
the Hon'ble Apex Court in the case of Kiran V/s. State of
Karnataka2 and brought to notice of this Court paragraph
No.13.
6. The counsel referring this judgment would contend
that only Constitutional Courts can impose a sentence for the
remainder of natural life, when the life imprisonment was
imposed. The power to impose punishment of imprisonment for
life without remission was conferred only on the Constitutional
Courts and not on the Sessions Court and hence, the conviction
and sentence requires interference. The counsel also submits
that the evidence of PW-3 also not inspires the confidence of the
Court to come to a conclusion that she was subjected to the
sexual act and only the trial Court can consider the evidence of
2023 SCC Online SC 846
2025 SCC Online SC 2863
NC: 2026:KHC-D:4761-DB
HC-KAR
PW-3- victim, if it is consistent and reliable and if the same is not
found reliable and consistent, the question of convicting the
accused does not arise and hence, it requires interference of this
Court.
7. Per contra, Sri. M.B. Gundawade, learned Additional
S.P.P appearing for the respondent No.1/State and Sri. S.P.
Kandagal, learned counsel appearing for respondent No.2 submit
that in order to prove that the victim was aged about 15 years,
the documents marked as Exs.P25 to P27 were produced. Those
documents are certificates issued by the school, that too based
on the admission application as well as the admission register
and so also the same is spoken by PW-12-Headmaster. The
counsel further submits that when these documents are proved
that victim is aged about 15 years and the same is taken note of
by the trial Court to come to a conclusion that she is a minor, it
attracts the offences under Sections 4 and 6 of POCSO Act, 2012
having considered the other evidence available on record.
8. Learned Additional S.P.P appearing for the
respondent No.1/State and also learned counsel appearing for
respondent No.2 further submits that the victim was examined
NC: 2026:KHC-D:4761-DB
HC-KAR
as PW-3 before the trial Court. Her evidence clearly establishes
that whenever she used to go to the house of accused No.1, he
used to touch her and ultimately subjected her to sexual acts
and threatening her by stating that not to reveal the same to
anybody and so also repeatedly subjected her for sexual act. As
a result, she became pregnant and gave birth to a male child.
The counsel further submits that the DNA test is also positive
that the accused No.1 is the biological father of the child as per
Ex.P45. The counsel also submits that the mother of the victim
was also examined as PW-4 and she also supported the case of
the prosecution. Learned counsel further submits that medical
evidence and also the evidence of PW-3 corroborates with FSL
report and the trial Court rightly comes to the conclusion that
accused has committed a heinous offence of rape on the minor
girl and rightly convicted and sentenced the accused. Hence, it
does not require any interference.
9. Having heard the counsel appearing for the
appellant, the counsel appearing for the respondent No.1/State
and the counsel appearing for respondent No.2 and having
considered the grounds urged in the appeal memo as well as oral
NC: 2026:KHC-D:4761-DB
HC-KAR
submissions made by counsels, the points that would arise for
the consideration of this Court are:
i. Whether the trial Court committed an error in
convicting the accused for the offence
punishable under Section 376(3), 4 and 6 of
POCSO Act and so also under Section 506 of
IPC and whether it requires interference of
this Court?
ii. Whether the appellant has made out the
ground to modify the sentence as contended
and whether it requires interference of this
Court or it requires any modification of the
sentence?
iii. What order?
Point No.(i):
10. Having heard the respective counsel and perused the
material on record, particularly the charges levelled against the
accused, and so also the oral and documentary evidence
available before the Court including the material objects which
have been marked, we have given our anxious consideration to
the same and re-appreciated the same in keeping the grounds
urged in the appeal memo and so also in view of the principles
NC: 2026:KHC-D:4761-DB
HC-KAR
laid down in the judgments referred supra by the counsel
appearing for the appellant.
11. The first and foremost limb of argument of the
counsel for the appellant is that the trial Court committed an
error in accepting that the victim was a minor, considering the
documents marked as Exs.P25 to 27 and ought not to have
relied upon the same. The counsel also would submit that though
PW-2 has been examined in order to prove those documents and
the same has not been proved. The counsel relying upon the
judgment in the case of P. Yuvaprakash referred supra
particularly brought to the notice of this Court paragraph No.13
and hence, this Court extracted paragraph No.13 and 14 with
regard to the accepting of the date of birth is concerned.
"13. It is evident from conjoint reading of the
above provisions that wherever the dispute with
respect to the age of a person arises in the context
of her or him being a victim under the POCSO Act,
the courts have to take recourse to the steps
indicated in Section 94 of the JJ Act. 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 concerned examination Board, if available; and
in the absence thereof;
- 10 -
NC: 2026:KHC-D:4761-DB
HC-KAR
(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."
14. Section 94(2)(iii) of the JJ Act clearly
indicates that the date of birth certificate from the
school or matriculation or equivalent certificate by
the concerned examination board has to be firstly
preferred in the absence of which the birth
certificate issued by the Corporation or Municipal
Authority or Panchayat and it is only thereafter in
the absence of these such documents the age is to
be determined through "an ossification test" or "any
other latest medical age determination test"
conducted on the orders of the authority concerned
i.e. Committee or Board or Court. In the present
case, concededly, only a transfer certificate and not
the date of birth certificate or matriculation or
equivalent certificate was considered. Ex. C-1 i.e.
the school transfer certificate showed the date of
birth of the victim as 11-7-1997. Significantly, the
transfer certificate was produced not by the
prosecution but instead by the court summoned
witness i.e. CW 1. The burden is always upon the
prosecution to establish what it alleges; therefore,
the prosecution could not have been fallen back
upon a document which it had never relied upon.
Furthermore, DW 3, the Revenue Official (Deputy
Tahsildar) concerned had stated on oath that the
records for the year 1997 in respect to the births
and deaths were missing. Since it did not answer to
the description of any class of documents mentioned
in Section 94(2)(i) as it was a mere transfer
certificate, Ext. C-1 could not have been relied upon
to hold that 'M' was below 18 years at the time of
commission of the offence."
- 11 -
NC: 2026:KHC-D:4761-DB
HC-KAR
12. Having considered paragraph No.13, which have
been referred above, it is evident that in order to prove the date
of birth of the victim, three documents are to be taken note of as
per Section 94 of the Juvenile Justice Act and having considered
the discussions made above in paragraph No.13 and 14, it is
very clear that an ossification test or any other latest medical
age determination test is required, if the case does not fall within
the purview of (i) and (ii) referred above, that has been
discussed in the judgment in point No.3. If the document
discloses that age proof of the victim girl is proved by examining
the witness of the document marked as Exs.P25 to 27 and in the
case on hand, it is very clear that date of birth certificate from
the school is produced, that too the school certificate of the
admission to 1st standard and also documents are very clear that
an application as well as birth certificate issued by the school are
produced before the Court. Even though the said document is
not a matriculation document, but it is very clear that Date of
Birth certificate issued by the school is produced before the Court
and also the said document is in respect of 1st standard and
studied in the very particular school from 1st standard to 8th
standard and when such material is available before the Court in
- 12 -
NC: 2026:KHC-D:4761-DB
HC-KAR
compliance with Section 94(2) of J.J. Act, it is proved that she is
aged about 15 years as on the date of the incident. Hence, the
very first contention of the counsel that no ossification test is
conducted, cannot be accepted. But the certificate issued by the
school i.e., with regard to the date of birth certificate, which was
entered in the school is produced and proved and the same is
first admission record. Hence, the very first contention of the
counsel appearing for the appellant cannot be accepted and the
same is rejected.
Point No.(ii)
13. The second limb of argument before this Court is that
the Sessions Judge is not having any power to impose the
sentence of life imprisonment, for the remainder of natural life.
In support of this, he relies upon the judgment of Hon'ble Apex
Court in the case of Kiran referred supra, wherein at paragraph
No.8, the Apex Court observed that the question remains as to
whether the Sessions Court is competent to award sentence of
imprisonment for life till the remainder of life and prohibit the
benefit of set off as provided under Section 428 of the Cr.P.C. A
- 13 -
NC: 2026:KHC-D:4761-DB
HC-KAR
specific question was framed by the Apex Court at paragraph-8
and the same is answered in paragraph No.13, which reads as
follows:
"8. Now, the question remains as to whether
the Sessions Court was competent to award a
sentence of imprisonment for life till the remainder
of life and prohibit the benefit of set-off as
provided under Section 428 of the Cr.PC.
13. This Court, hence, as evident from the
extract hereinabove, clearly held that in
appropriate cases as a uniform policy, punishment
of imprisonment for life beyond any remission can
be awarded, substituting the death penalty; not
only by the Supreme Court but also by the High
Courts. The power to impose punishment of
imprisonment for life without remission was
conferred only on the Constitutional Courts and
not on the Sessions Courts."
14. Having considered the paragraph Nos.8 and 13 of
the aforementioned judgment, the question remains for
consideration and question with regard to the imposing of the
imprisonment for life without remission. It is held that the said
power was conferred only on the Constitutional Courts and not
on the Sessions Court. Hence, this Court has to examine the
factual aspects of the case that the victim is minor under Section
2(d) of the POCSO Act, 2012 and subjected to sexual act against
her will.
- 14 -
NC: 2026:KHC-D:4761-DB
HC-KAR
15. The said judgment was in connection with murder
but in the case on hand, the offences are invoked under the
special enactment of the Protection of Children from Sexual
Offences Act, 2012. The trial Judge invoked Section 6 to impose
the sentence. Hence, this Court would like to extract Section 6 of
the POCSO Act, which reads as follows:
6. Punishment for aggravated penetrative
sexual assault.-(1) Whoever commits
aggravated penetrative sexual assault shall be
punished with rigorous imprisonment for a term
which shall not be less than twenty years, but
which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of
natural life of that person, and shall also be liable
to fine, or with death.
(2) The fine Imposed under sub-section (1) shall
be just and reasonable and paid to the victim to
meet the medical expenses and rehabilitation of
such victim.]
16. Having read Section 6 of the special enactment of
POCSO Act, the punishment for aggravated penetrative sexual
acts shall not be less than 20 years with rigorous imprisonment
for a term, which shall not be less than 20 years, but which may
extend to imprisonment for life. Having read this provision, it is
very clear that which may extend to imprisonment for life and
word is used as 'may' and not 'shall'. However, in further
- 15 -
NC: 2026:KHC-D:4761-DB
HC-KAR
proviso, it says that which shall mean imprisonment for the
remainder of natural life of that person and shall also liable to be
fine or with death. Having read the proviso of statutory
punishment provided under Section 6 of POCSO Act and so also
in the case on hand, the accused is aged about 50 years at the
time of committing the offence. Now he is aged about 56 years
and taking note of the said fact into consideration, it is
appropriate to modify the sentence i.e., minimum sentence as
imposed in Section 6 i.e., rigorous imprisonment shall not be less
than 20 years. It is appropriate to modify the same as rigorous
imprisonment of 20 years and we are of the opinion that it could
be modified. Hence, we answered the same accordingly point
No.2 in partly affirmative.
17. In view of the above discussions, we pass the
following:
ORDER
i. Appeal is allowed in part.
ii. The judgment of conviction is upheld
and sentence is modified by imposing
the rigorous imprisonment of 20 years
- 16 -
NC: 2026:KHC-D:4761-DB
HC-KAR
instead of life imprisonment for
remainder of life.
SD/-
(H.P.SANDESH)
JUDGE
SD/-
(B. MURALIDHARA PAI)
JUDGE
JTR/RKM
CT:PA
LIST NO.: 1 SL NO.: 23
