State appeal against acquittal in a POCSO rape case. The court held the victim's minority was not proved per Rule 12(3) JJ Rules criteria since the matriculation certificate was withheld, disqualifying POCSO charges, and found the prosecutrix's evidence inconsistent with unexplained delays, so dismissed the appeal upholding acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:25236-DB CRL.A No.1825/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL CRIMINAL APPEAL NO. 1825/2018 (A)
BETWEEN:
THE STATE OF KARNATAKA BY POLICE INSPECTOR KUNIGAL POLICE STATION TUMAKURU DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU …APPELLANT
(BY SMT.SOWMYA R, HCGP)
AND:
Digitally signed by K S RENUKAMBA Location: High Court of Karnataka
TUMKURU DISTRICT – 572 101 … RESPONDENTS
(BY SRI.GNANESH H KEMPANNA, ADVOCATE FOR R1; SRI.NAGENDRA A, ADVOCATE FOR R2 (AUTHORISED BY HCLSC))
NC: 2024:KHC:25236-DB CRL.A No.1825/2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)&(3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 10.04.2018, PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU IN SPL.C.NO.508/2016, ACQUITTING THE RESPONDENTACCUSED OF THE OFFENCES PUNISHABLE UNDER SECTIONS 376, 506 OF IPC AND SECTION 6 OF POCSO ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
“Whether the impugned judgment and order of acquittal passed by the Trial Court for the offences punishable under Sections 376, 506 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short) suffers patent illegality or perversity?” is the question involved in this case.
parties are referred to henceforth according to their ranks before the Trial Court.
Accused owned two tractors and one Santro Car. Accused developed friendship with PW.1 as he was ploughing the land of PW.1 with his tractor bearing registration No.K.A06-T.B-3446. The accused was parking his car and tractor near the house of PW.1. As on 12.07.2016, victim/PW.2 was aged 16 years. Accused in the guise of dropping her to the college, between 12.07.2016 and 20.08.2016 took her in his Santro Car bearing registration No.K.A-03-M.A-5044 six times to the eucalyptus grove on the way and committed aggravated sexual assault on her. When she raised resistance, the accused intimidated her at the point of knife and threatened her not to reveal the incident to others.
After his examination under Section 313 Cr.P.C the accused did
not lead any defence evidence. But on his behalf by way of confrontation, Ex.D1 was marked.
Therefore, they submit that the impugned judgment and order is illegal and liable to be set aside.
Analysis:
the guise of dropping the victim to her college in his Santro Car bearing registration No.K.A-03-M.A-5044 took her from her house in Shettigere village, on the way to the college near Ranganatha Swamy Temple, he took her to eucalyptus grove
1 AIR 2020 SC 985
and under the criminal intimidation committed penetrative
sexual assault on her six times. It is further the case of the prosecution that accused had threatened the victim not to reveal the incident to others. On 23.08.2016 when he was harassing the victim demanding to accompany him, PW.3 the grandmother enquired the victim and the accused went away. Thereafter, the victim revealed the incident to her. Then PW.1 filed complaint/Ex.P1 on 05.09.2016. Based on which, FIR Ex.P11 was registered and investigation was conducted. During the course of investigation, victim said to have given statement as per Ex.P5 before the Magistrate under Section 164 Cr.P.C and was also subjected to medical examination. In proof of victim’s age, Ex.P10 school certificate was collected. The Trial Court holding that, the victim being child was not proved and the allegations of sexual assault were not proved beyond reasonable doubt, has acquitted the accused.
2(2013) 14 SCC 88
the judgment suffers patent illegality or perversity and merely
on the ground that on assessment of the evidence two views are possible. In such case the view which is favourable to the accused has to be considered and shall be given benefit of doubt.
(ii) That the accused committed aggravated sexual
assault on her.
PW.2 was admitted into their school for 8th Standard. PW.17
says that the said date of birth was entered in their school record based on Transfer Certificate issued by her Primary School which was her first studied school. He says that, he does not know on what basis in the said transfer certificate, the date of birth was mentioned as 26.06.2000. He admits that when the victim was being admitted into school, he was not the Headmaster of the school and he does not know what records were furnished at the time of admission into the High School about her date of birth. Therefore, to substantiate Ex.P10, the evidence of PW.17 was of no use.
3(2013) 14 SCC 637
Supreme Court in Para 12 of the above said judgment referring to Rule 12(3) held as follows:
"12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
“ 12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking evidence by obtaining—
( a )( i ) the matriculation or equivalent certificates , if available; and in the absence whereof ;
( ii ) the date of birth certificate from the school (other than a play school) first attended ; and in the absence whereof;
( iii ) the birth certificate given by a corporation or a municipal authority or a Panchayat;”
Under Rule 12(3)( b ), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)( a )( i ) to ( iii ), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well."
(Emphasis supplied)
The reading of the above judgment goes to show that, to prove the age of the juvenile victim, the prosecution has to first produce matriculation or equivalent Certificate, if available. Only in the absence of that, date of birth certificate from the school first attended has to be produced. In the absence of the above two, the birth certificate given by the Corporation or Municipal authority or Panchayath has to be produced. Only in the absence of the first three documents, ossification test has to be resorted.
that, if produced that would have gone against prosecution. Therefore, the Trial Court was justified in holding that the victim being child, was not proved.
NC: 2024:KHC:25236-DB CRL.A No.1825/2018
rely on sole testimony of prosecutrix, she should be of a witness of sterling quality and her evidence should inspire confidence of the Court. If her evidence creates doubt, then such evidence needs corroboration and charge has to be proved beyond reasonable doubt.
NC: 2024:KHC:25236-DB CRL.A No.1825/2018
05.09.2016. This four days delay in subjecting the victim for examination through the Magistrate was not explained.
was subjected to sexual abuse six times, in her statement Ex.P5 under Section 164 Cr.P.C, the victim says that the accused subjected her to sexual abuse only once. In her chief examination, she did not whisper anything as to how many times she was subjected to sexual abuse by the accused. Whereas during her medical examination, she said to have revealed that she was subjected to sexual assault 5-6 times within a period of one and half months. There were lot of inconsistencies and improvements in the evidence of prosecutrix herself about the number of times of commission of offence and manner of the same.
revealing the incident there is delay in filing complaint, delay in subjecting her to medical examination, as well as examination under Section 164 Cr.P.C. That probabilises the defence of the accused that the witnesses systematically deliberated and implicated him in the case.
ORDER
The appeal is dismissed.
Court places on record its appreciation for the able assistance rendered by Sri. Nagendra.A, learned Standing Counsel for the High Court Legal Services Committee.
Sd/JUDGE
Sd/JUDGE
PKN List No.: 1 Sl No.: 20
2 issues framed by the court
Does the trial court's acquittal for offences under Sections 376, 506 IPC and Section 6 of the POCSO Act suffer patent illegality or perversity?
Was the victim's status as a child below 18 years proved by legally acceptable evidence?
Colour shows how this judgement treated each authority
Santosh Prasad alias Santosh Kumar Vs. State of BiharRelied on¶17
AIR 2020 SC 985 · Who else cites this
Prem Singh v. State of HaryanaRelied on¶10
(2013) 14 SCC 88 · Who else cites this
Mahadeo v. State of Maharashtra and AnotherRelied on¶13
(2013) 14 SCC 637 · Who else cites this
Raju and others Vs. State of Madhya PradeshReferred¶17
(2008) 15 SCC 133 · Who else cites this
Rai Sandeep alias Deepu Vs State (NCT of Delhi)Referred¶17
(2012) 8 SCC 21 · Who else cites this
5 provisions across 4 enactments
The State of Karnataka by Police Inspector Kunigal Police Station Tumakuru District
Kempanna s/o Nanjundaiah
Nagaraju s/o Nanjaiah
K.S.Mudagal
Vijaykumar A. Patil
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
