Sri Abhilash @ Abhi Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO, SET ASIDE THE ORDER OF CONVICTION DATED 01.06.2024 AND SENTENCE DATED 03.06.2024 PASSED BY THE LEARNED ADDL. CITY CIVIL AND SESSIONS JUDGE, FTSC-V, BENGALURU IN SPL.C.C.NO.909/2019, FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 366(A), 376(D) OF IPC, SECTION 67(B)(E) OF THE I.T. ACT AND UNDER SECTION 5(G), 6 AND 14 OF POCSO ACT 2012.

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IN CRIMINAL APPEAL NO.1156 OF 2024

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BETWEEN:

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SRI. ABHILASH @ ABHI S/O PURUSHOTHAM, AGED ABOUT 27 YEARS, R/AT NO.2, GROUND FLOOR, 9^TH MAIN, K.P. AGRAHARA, BENGALURU – 560 023.

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… APPELLANT

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(BY SRI.VEERANNA G.TIGADI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY JAGAJEEVANRAM NAGAR POLICE STATION, REP. BY SPP, HIGH COURT OF KARNATAKA, BENGALURU – 560 001.

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XXX VICTIM (SINCE MINOR) AGED ABOUT 17 YEARS REPRESENTED BY HER NATURAL GUARDIAN FATHER NOW 21 YEARS D/O PANDYAN, AGED 57 YEARS, R/AT. DASARAHALLI, ANJENEYA TEMPLE BEHIND BENGALURU – 562 114 .

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…RESPONDENTS

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(BY SMT. PUSHPALATHA B., ADDL. SPP FOR R1; NOTICE TO R2 IS SERVED)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED BY THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, FTSC-V, BENGALURU BY JUDGMENT DATED 01.06.2024, IN SPL. C.C. NO.909/2019, ON 03.06.2024 SENTENCING HIM TO UNDERGO RIGOROUS IMPRISONMENT FOR 20 YEARS AND SHALL ALSO PAY FINE OF RS.10,000/-, IN CASE TO DEFAULT TO PAY THE FINE AMOUNT, HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(D) OF IPC, HE FURTHER CONVICTED AND FOR THE OFFENCE PUNISHABLE UNDER SECTION 5(G), 6 OF POCSO ACT AND SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 20 YEARS AND ALSO WITH FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF FINE AMOUNT SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE YEARS, OF 1 YEAR, FURTHER CONVICTED AND FOR THE OFFENCE PUNISHABLE UNDER SECTION 14 OF POCSO ACT AND SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 5 YEARS WITH FINE OF RS.5,000/- IN DEFAULT OF PAYMENT OF FINE AMOUNT SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE YEARS, AND ALSO CONVICTED AND SENTENCED FOR THE OFFENCE PUNISHABLE UNDER SECTION 67(B)(E) OF IT ACT 14 OF POSCO ACT AND SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 3 YEARS WITH FINE OF RS.50,000/- IN DEFAULT OF PAYMENT OF FINE AMOUNT SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF ONE YEARS, AND ACQUIT HIM IN THE ENDS OF JUSTICE AND EQUITY.

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IN CRIMINAL APPEAL NO.1276 OF 2024 BETWEEN:

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YATHISH KUMAR @ YATISH S/O MAHADEV PRASAD, AGED ABOUT 30 YEARS, R/AT NO.78, 1^ST MAIN, NEW BINNYPETE, BANGALORE – 560 023.

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… APPELLANT

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(BY SRI.VEERANNA G.TIGADI, ADVOCATE)

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AND:

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STATE OF KARNATAKA

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BY JAGAJEEVANRAM NAGAR P.S., REP. BY STATE PUBLIC PROSECUTOR, BANGALORE – 560 001.

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SUMAN

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W/O ANBUPANDIAN AGED ABOUT 47 YEARS ANJANEYA TEMPLE, DASARAHALLI, BANGALORE – 560 057.

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…RESPONDENTS

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(BY SMT. PUSHPALATHA B., ADDL. SPP FOR R1; NOTICE TO R2 IS SERVED)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 01.06.2024 AND SENTENCE DATED 03.06.2024, PASSED BY THE LEARNED ADDL. CITY CIVIL AND SESSIONS JUDGE, FTSC-V, BANGALORE IN SPL.C.C. NO.909/2019, FOR THE OFFENCE PUNISHABLE UNDER SECTION 366(A), 376(D) OF IPC, SECTION 67(B)(E) OF THE I.T. ACT. AND SECTION 5(G), 6 AND 14 OF POCSO ACT, 2012.

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THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED ON 08.09.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED THE FOLLOWING:

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HC-KAR

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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These appeals are filed by accused Nos.1 to 3 separately arising out of the same judgment and same crime numbers. Therefore, taken up together for disposal.

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Factual matrix of the case:

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The case of the prosecution is that accused Nos.1 to 3 are well-known to P.W.1 from past three years. The accused No.1 was loving her since one and half years. The accused Nos.2 and 3 are friends, they used to go together whenever the occasion arises. The accused No.1 took the victim to his house to introduce to his mother. The mother of accused No.1 informed the complainant that accused No.1 was not taking care either her or her daughter who is pregnant, such being the fact, even if she married him, there would be a problem to her. On hearing the said information the victim gradually trying to detach from the company of accused No.1. The accused No.1

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being enraged by the said detachment, hatched a plan to commit rape on her. Accordingly, on 05.06.2019, he called

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accused Nos.2 and 3 to his house and hatched a plan. The accused No.3 called P.W.1 from his mobile and informed her that he was going to his native and he wanted to meet her. Accordingly, the victim was waiting near the place where she had been instructed. He went to the spot on his scooter and took her and dropped her near one place and asked her to wait till he returns back. Again, he took her on his scooter and proceeded towards the house of accused No.1. At that time, P.W.1 asked accused No.3 as to why she had been brought to the house of accused No.1, by that time, accused Nos.1 and 2 caught hold the victim by closing her mouth and took her inside the house and forcibly made her to consume alcohol and committed sexual assault on her. After, the incident, she was scot-free and asked her to go to her home. In the mean time, they snatched the mobile phone of P.W.1 and sent her outside the house. When she was going on the street, she was crying. On hearing the crying of the victim, public asked her as why she was crying, victim narrated the incident, and they called the Police. The Police took her to the place where she had been subjected to sexual assault and arrested the accused persons

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and recorded statement of the victim. The respondent-Police after conducting the investigation submitted the charge-sheet.

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The prosecution in order to prove its case had examined 15 witnesses as P.W.1 to P.W.15 and got marked 53 documents as Ex-P.1 to Ex-P.53 and also identified 23 material objects and marked as M.O.1 to M.O.23.

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Heard Sri. Veeranna G. Tigadi, learned counsel for appellants and Smt. Pushpalatha B. learned Additional State Public Prosecutor for respondent No.1 and Sri. Ramesha H.N., learned counsel for respondent No.2.

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It is the submission of learned counsel for the appellants that the judgment of conviction passed by the Trial Court is highly erroneous and contrary to the facts and evidence on record. Therefore, the same is liable to be set aside. It is further submitted that the evidence of P.W.1 – victim is having contradictions and omissions. Based on her evidence, recording the conviction is erroneous and irrelevant.

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It is further submitted that P.W.3 – Dr. Prabhavathi

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who was working as Doctor at Vani Vilas Hospital, conducted

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medical examination of P.W.1 and submitted a report as per Ex-P.12. The said report would indicate that she had not been sexually assaulted recently. When P.W.1 was subjected to medical examination on the same day, the Doctor opined that there was no recent sexual intercourse, the allegations made against accused Nos.1 to 3 certainly creates doubt. However, the Trial court ignored the said medical report and appreciated the evidence of prosecutrix which is improper.

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It is further submitted that, the victim was aged about 17 years and she had not undergone any medical examination for the purpose of determination of her age nor produced any authenticated documents to determine her age that she was minor. It is further submitted that as the Trial Court has committed error, resulted in passing the impugned judgment, which is liable to be set aside. Making such submissions, the learned counsel for the appellants prays to allow the appeal.

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Per contra, the learned High Court Government

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Pleader, vehemently, justified the judgment of conviction and submitted that, the findings of the Trial Court in recording the

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conviction are proper and relevant. P.W.1 being a victim has supported the case of the prosecution. All the accused persons are well-known to the victim. Immediately, after the incident, she lodges a complaint before the respondent-Police and she had been subjected to medical examination. The act of sexual intercourse is proved through the medical examination and the same has been corroborated by the evidence of P.W.1.

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It is further submitted that the F.S.L report would indicate that seminal stains was present in the Article 20. It was collected at the time of examination of the victim on 06.06.2019. Such being the fact, findings of the Trial Court in recording the conviction is proper and appropriate. There is no reason to interfere with the said findings. Hence, the appeals are required to be dismissed.

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Having heard the learned counsels for the respective parties and also perused the findings of the Trial Court in recording the conviction, it is appropriate to re-appreciate the evidence of all the witnesses.

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P.W.1 is the victim, she has supported in her

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evidence that she knew accused Nos.1 to 3 through the

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daughter of her maternal aunt. As such they acquainted with each other since two years. Accused No.1 – Krishna was loving her and she was also loving him. After three months from the date of liking each other, accused No.1 took her to his house to introduce to his mother. His mother instructed her that accused No.1 was not working properly and he was not taking care of them properly. Such being the fact, even though she married him, she would not be stayed in a good position. Having heard the said instructions, she started avoiding him and it was not liked by him. He started having grudge on her to destroy her life. As per the evidence of P.W.1, she was raped by accused No.1. Accused Nos.2 and 3 assaulted her and they were witnessing the incident. Further, she stated that she was aged about 17 years as on the date of the incident and thereafter, immediately, she lodges a complaint against all the three accused persons. She supported the case of the prosecution.

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Further, P.W.2 is the Doctor who conducted the medical examination of accused Nos.1 to 3 and gave opinion as per Ex-P.5 to P.7.

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Further, P.W.3, was working as Doctor at Vani Vilas Hospital, Bengaluru, she conducted medical examination of the victim and submitted report as per Ex-P.9 and P.10.

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Further P.W.4, was working at Private Factory and was a resident of Binnypet, Bengaluru. He has turned hostile.

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Further P.W.5, was working as Head Master of Sangamitra Women’s P.U.College, Vijayanagar. He is stated to have submitted report as per Ex-P.15. According to him, the date of birth of the victim is 13.02.2002. Further, in the cross-examination, he admitted that he did not produce admission register extract.

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Further P.W.6, is the witness to the spot mahazar which is marked as Ex-P.17, he has not supported the case of the prosecution.

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Further P.W.7, is the mother of the victim. She is stated that the age of the victim is 17.02.2002 and her daughter had been subjected to sexual assault by the accused Nos.1 to 3. She supported the case of the prosecution.

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Further P.W.8, is stated to be the witness to Ex-P.21, he supported the case of the prosecution.

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Further P.W.9, is stated to the witness to Ex-P.21 and 22, he supported the case of the prosecution. However, he was treated as hostile and examined by the prosecutor.

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Further P.W.10, was working as P.S.I and he is stated to have registered a case in Crime No.75/2019, on receiving the complaint by the complainant.

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Further P.W.11, was working as Nodal Officer, Jio Company. He is stated to have issued 65(b) certificate as per Ex-P.33.

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Further P.W.12, was working as Women Police Constable. According to her, she was present at the time of conducting Mahazar and taken photographs and recorded videos.

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Further P.W.13, was working as Head Constable. According to him, he was deputed to arrest accused Nos.1 to 3. Accordingly, on 07.06.2019, he and other colleagues have

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arrested accused Nos.1 to 3 and produced them before the Investigation Officer.

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Further P.W.14, was working as Police Inspector of J.J.Nagar Police Station. According to him, he has conducted part of the investigation.

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Further P.W.15, was working as Scientific Officer. He conducted examination of records seized and sent by the respondent – Police. After conducting the investigation, he submitted report as per Ex-P.49.

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On careful reading of evidences of all the witnesses, it appears that the evidence of P.W.1 assumes greater significance. According to P.W.1, in her complaint it is stated that she had been subjected to sexual assault by all the three accused persons. In her statement under Section 164 Cr.P.C., she narrated that all the accused have committed rape on her. However, in her evidence, she deposed that only accused No.1 had committed sexual assault on her, accused No.2 assaulted her and accused No.3 deceived her and took her to the house of accused No.1. The evidence of P.W.1 appears to be unnatural for the reasons that at the first instance she

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implicated all the accused in the complaint. Subsequently, she stated the same facts before the Magistrate. However, in her evidence, she confined only accused No.1 that he had committed rape on her. It is further noticed that P.W.5 – B.V. Ramegowda, who was working as Head Master had produced certificate as per Ex-P.15 and 16. The certificate issued by him though appears to be determined the age of the victim, the said certificate is neither in-consonance with the Juvenile Justice Act nor in-consonance with the settled principle of law.

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In this context, it is appropriate to refer the judgment of Hon’ble Supreme Court in the case of P. Yuvaprakash Vs. State Rep. by Inspector of Police¹ in paragraph Nos.12 to 14, which reads as under:

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12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:

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“94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the

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1 2023 SCC Online SC 846

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Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -

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(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;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(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:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

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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

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that the concerned court has to determine the age by considering the following documents:

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“(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;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(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”.

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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 concerned authority, 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. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW1. 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 concerned Revenue Official (Deputy Tahsildar) 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

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Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

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Though, the age of the victim is 17 years, as per the records, the document of which the prosecution is relied on, is not sufficient to hold that the said documents is conclusive to determine the age of the victim. Such being the fact, it would be very difficult to determine her age without being subjected herself for the medical examination. In this case, the victim had not been subjected to medical examination for the purpose of determining her age. Therefore, whether the victim was minor or not, would be ambiguous. Under such circumstances, the benefit of doubt should be extended to the accused.

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The Trial Court committed grave error in recording the conviction on the basis of the evidence of the sole prosecutrix. Though, her evidence contained contradictions and omissions. It is a settled principle of law that in a case where the entire case rests on sole prosecutrix, the evidence of the said prosecutrix must be of sterling quality.

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In the present case, the evidence of prosecutrix appears to be unnatural and unbelievable regarding the commission of the said offence. Having gone through the evidence of prosecutrix, appreciation of rest of the witnesses in my considered view is not relevant. Therefore, it is appropriate to set aside the judgment of conviction passed by the Trial Court.

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In the light of the observations made above, I proceed to pass the following:

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ORDER

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i. The Criminal Appeals are allowed .

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ii. The judgment of conviction dated 01.06.2024 and order on sentence dated 03.06.2024 passed in Spl.C.C.No.909/2019 of the file of Additional City Civil and Sessions Judge, FTSC-V, Bengaluru, for the offence punishable under Section 366(A), 376(D) of I.P.C read with Section 34 of I.P.C, Section 67(B)(E) of I.T Act and Section 5(G), 6 and 14 of POCSO Act, 2012, is hereby, set aside.

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iii. The appellants/accused Nos.1 to 3, are hereby, acquitted.

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iv. The bails bonds executed, if any, stands cancelled.

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v. The Registry is directed to communicate this order to the jail authorities, forthwith.

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vi. The Superintendent of Jail, Central Prison, Parappana Agrahara, is directed to release the appellants/accused Nos.1 to 3, if they are not required in any other cases.

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Sd/(S RACHAIAH) JUDGE

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NM

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List No.: 19 Sl No.: 1

Sri Abhilash @ Abhi v. the State of Karnataka

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Sri Abhilash @ Abhi v. the State of Karnataka

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