State appeal against acquittal under IPC Sections 366/376 and POCSO Sections 4/8 for alleged kidnapping and sexual assault of a 15-year-old girl. The High Court found age proof contrary to Rule 12 JJ Rules, ossification test inconclusive with two-year margin, and victim's testimony lacking confidence; dismissed the appeal.
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:22629-DB CRL.A No.719/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.719/2017 (A)
BETWEEN:
THE STATE OF KARNATAKA BY TURUVANURU POLICE INSPECTOR REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU. …APPELLANT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
AND:
Digitally signed by K S RENUKAMBA Location: High Court of Karnataka
W/O SANNA BORAIAH R/O. HAIKAL VILLAGE, CHITRADURGA TALUK CHITRADURGA DISTRICT MOTHER OF VICTIM
[AMENDMENT CARRIED OUT AS PER ORDER DATED 25.03.2024] … RESPONDENTS
(BY SRI. S.G. RAJENDRA REDDY, ADV., FOR R1 SRI. ANTONY IGNATIUS M.J. ADV., FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT AND ORDER DATED 11.11.2016 PASSED BY THE II ADDL. DIST. AND SESSIONS AND SPL. JUDGE, CHITRADURGA IN SPL.C.(POCSO) NO.21/2015 IN ACQUITTING THE
NC: 2024:KHC:22629-DB CRL.A No.719/2017
RESPONDENT - ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC AND SECTIONS 4 AND 8 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 in Spl.C.(POCSO) No.21/2015 passed by II-Additional District and Sessions Judge, Chitradurga suffers patent illegality or perversity?” is the question involved in this case.
(i) That PW.7 the victim as on 29.11.2014 was aged 15 years. Accused/respondent No.1 was stalking her since four years prior to 29.11.2014 claiming that he was in love with her
and was pestering her to marry him. He was blackmailing her
saying that if she does not agree for marriage, he will commit suicide.
(ii) On 29.11.2014 at 10:00 a.m. when PW.7 was standing in front of her house, threatening that if she does not follow him, he will commit suicide, he kidnapped her from the lawful custody of her parents. From there he took her to the house of PW.5 situated in B.G.Kere village. PW.5 is the relative of the father of PW.7. Thus PW.5 happens to be the aunt of PW.7. The accused confined her in the said house between 01.12.2014 to 03.12.2014. During night of 01.12.2014, 02.12.2014 and 03.12.2014 he committed penetrative sexual assault on PW.7.
(iii) Later at the intervention of the elders, the victim and the accused were brought to Gudekote police station. On assurance of marriage given in the police station, the victim and the accused were sent to their respective houses.
(iv) Later on 10.04.2015, PW.6 filed complaint before the Child Welfare Committee as per Ex.P5. PW.4 the Chairman of the Child Welfare Committee along with his letter Ex.P6 forwarded the said statement to Turuvanur police. Based on that FIR Ex.P7 was registered against the accused for the offences punishable under Sections 363 and 376 IPC and
NC: 2024:KHC:22629-DB CRL.A No.719/2017
Sections 4 and 6 of the POCSO Act. On conducting the investigation, accused was chargesheeted.
Submissions of Smt. Rashmi Jadhav, learned Additional SPP and Sri.Antony Ignatius, learned counsel for respondent No.2 :
the school certificate, ossification test report and the evidence of PWs.18 and 19 the authors of Exs.P16 and 17. The allegation
of forced sexual intercourse was proved by the evidence of victim. The Trial Court without appreciating the evidence in judicious manner acquitted the accused, which is unsustainable.
Submissions of Sri. S G Rajendra Reddy, learned Counsel for respondent No.1:
Analysis:
with her and if she does not accompany him, he commits suicide. He allegedly took her to the house of PW5 situated in B.G.Kere Village, lodged her there and between 01.12.2014 to 03.12.2014 he committed penetrative sexual assault on her three times, thereby he has committed the offences punishable under Sections 366 and 376 of IPC and Sections 4 and 8 of the POCSO Act. The Trial Court has acquitted the accused holding that the prosecution has failed to prove beyond reasonable doubt that the victim-PW7 was the child, the accused kidnapped her and committed forced sexual assault.
1 (2013) 14 SCC 88
that unless the judgment of acquittal suffers patent illegality or perversity, the same cannot be reversed.
of Maharashtra and Another2 has held that the yardstick applicable for the assessment of the age of juvenile in conflict with law under Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as JJ Rules) is applicable to the juvenile victim also. In this case the incident took place in November-December of 2014. Therefore, the parties were governed by the JJ Rules, 2007. The Hon’ble Supreme Court in the above said judgment referring to said 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;
2 (2013) 14 SCC 637
( 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)
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.
Investigating Officer did not make any attempt to collect the same. Secondly, the birth certificate of the school contemplated in Rule 12(3)(a)(ii) is the certificate issued by the first attended school. But Ex-P16 and evidence of PW18 shows that, that was issued by the High school which is not the first attended school. The Investigating Officer has not made any efforts to collect the certificate of the victim from the first attended school. When the matriculation certificate as well as first attended school certificate were available, the prosecution was barred to resort to collect Ex-P16 or to go for ossification test as per Ex.P17 and both of them are contrary to Rule 12 and the aforesaid judgment of the Hon'ble Supreme Court.
3 AIR 2022 SC 4771
held that radiological examination leaves a margin of two years on either side of the age range. As per the evidence of PW19 the age of PW7 was between 16 and 17. Therefore, it could be 18 and 19 also. Under the circumstances, the trial Court was justified in holding that the victim being a child was not proved beyond reasonable doubt. Once the allegation of victim being a child fails, the charges under Section 4 and 8 of the POCSO Act do not sustain.
in Yerralinganahalli village from 01.12.2014 to 03.12.2014. She claims that during that time her aunt's daughter-in-law was present in the house. She had ample opportunity to resist or seek help of the others during such travel in the public place by public conveyance and in the house of her aunt itself. But she has not made any attempt to escape and to seek the help.
investigated in that regard and recorded statements of Gudekote police. Under the aforesaid facts and circumstances, the allegation against the accused that lodging the victim in the house of her aunt for continuously three days, subjected her to forced sexual intercourse does not inspire the confidence of the Court and the same was rightly disbelieved by the Trial Court.
4 (2017) 2 SCC 51
corroboration is not required for the victim’s testimony, but the same was with the qualification that the victim's testimony should inspire the confidence of the Court. In the present case, the victim's testimony is tainted with suspicion. Therefore, the said judgment is not applicable.
ORDER
The appeal is dismissed.
Court places on record its appreciation for the able assistance rendered by Sri.Antony Ignatius M.J., learned Standing Counsel for the High Court Legal Services Committee.
Sd/JUDGE
Sd/JUDGE
PKN/ABK List No.: 1 Sl No.: 4
3 issues framed by the court
Whether the trial court's acquittal suffered patent illegality or perversity warranting reversal in a State appeal against acquittal?
Whether the prosecution proved the victim was below 18 years in accordance with the JJ Rules 2007 age-determination hierarchy?
Whether the victim was kidnapped and subjected to forced penetrative sexual assault?
Colour shows how this judgement treated each authority
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
Vinod Katara v. State of Uttar PradeshApplied¶16
AIR 2022 SC 4771 · Who else cites this
State of Himachal Pradesh v. Sanjay Kumar @ SunnyDistinguished¶20
(2017) 2 SCC 51 · Who else cites this
6 provisions across 4 enactments
State of Karnataka by Turuvanuru Police Inspector represented by State Public Prosecutor
Ramesh S/o Malleshappa
Geethamma W/o Sanna Boraiah
K.S. Mudagal
Vijaykumar A. Patil
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
