Sri Babu @ Chandrababu Vs State of Karnataka

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1 - NC: 2025:KHC:18957 CRL.A No. 1665 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2025

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1665 OF 2024 (C)

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BETWEEN:

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SRI. BABU @ CHANDRABABU S/O. LATE SRI. DORESWAMY, AGED ABOUT 52 YEARS, R/AT. C/O. NEAR PANDIYAN'S, LABOUR SHED, NEAR AMBEDKAR STATUTE, DEVARABISANAHALLI, BENGALURU - 560 103.

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…APPELLANT

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(BY SRI. VINAY SHREYAS K.V., ADVOCATE)

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AND:

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STATE OF KARNATAKA REP. BY MARATHAHALLI PS, BENGALURU - 560 037. REP. BY STATE PP, HIGH COURT BUILDING, BENGALURU - 560 001.

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Digitally signed by SWAPNA V Location: High Court of Karnataka

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MRS. SHIPRA W/O. MR. NABAKANT HAZARIKA, AGED ABOUT 32 YEARS, C/O CHALAPATIS SHEET HOUSE, (ENGINEER) NEAR AMBEDKAR STATUE, DEVARABISANAHALLI, BENGALURU - 560 103.

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…RESPONDENTS

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(BY SRI. HARISH GANAPATHY, HCGP FOR R1

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SMT. MANORANJINI, ADVOCATE FOR R2)

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THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED 06.10.2023 FOR THE OFFENCE P/U/S 342 OF IPC AND SEC. 7, 8 AND SEC. 9(M) OF POSCO ACT AND ORDER OF SENTENCE DATED 09.10.2023, PASSED BY THE COURT

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NC: 2025:KHC:18957 CRL.A No. 1665 of 2024

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OF FTSC-1, ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN SPL.C.NO.394/2019. ACCUSED IS HEREBY CONVICTED AS PER SEC. 235(2) OF THE CR.P.C. FOR THE OFFENCE P/U/S 342 OF IPC AND HE IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 6 MONTHS WITH FINE OF RS.1,000/- IN DEFAULT OF WHICH HE SHALL UNDER GO 1 MONTH OF RIGOROUS IMPRISONMENT ACCUSED IS HEREBY CONVICTED AS PR SEC. 235(2) OF CR.P.C. FOR THE OFFENCE P/U/S 8 OF POCSO ACT AND HE IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 3 YEARS WITH FINE OF RS.25,000/- IN DEFAULT OF WHICH HE SHALL UNDER GO 6 MONTHS OF RIGOROUS IMPRISONMENT. ACCUSED IS HEREBY CONVICTED AS PER SEC. 235(2) OF THE CR.P.C. FOR THE OFFENCE P/U/S 9(M) OF POCSO ACT AND HE IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 5 YEARS WITH FINE OF RS.25,000/- IN DEFAULT OF WHICH HE SHALL UNDERGO 6 MONTHS OF RIGOROUS IMPRISONMENT. ALL THE ABOVE SENTENCE SHALL RUN CONCURRENTLY. AND THE APPELLANT PRAYS THAT HE BE ACQUITTED.

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THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant being the accused in Special Case

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No.394/2019 on the file of the learned FTSC-1 Additional City Civil and Sessions Judge, Bengaluru, is impugning the Judgment of conviction and order of Sentence dated 06.10.2023, convicting him for the offences punishable under

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Section 342 of the Indian Penal Code (for short 'the IPC') and Sections 8 and 9(m) of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act) and sentenced to undergo rigorous imprisonment for a period of 6 months with a fine of Rs.1,000/- for the offence punishable under Section 342 of IPC, to undergo rigorous imprisonment for a period of 3 years with a fine of Rs.25,000/- for the offence punishable under Section 8 of the POCSO Act, to undergo rigorous imprisonment for a period of 5 years with a fine of Rs.25,000/for the offence punishable under Section 9(m) of the POCSO Act, with default sentences.

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For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

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Brief facts of the case are that, PW1 is the victim, aged 3 years. It is the contention of the prosecution that on 08.10.2018, the accused, who was aged 52 years, induced her of giving chocolate, took her to his house and committed penetrative sexual assault and thereby committed offences punishable under Section 342 of IPC and Section 4 of the

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POCSO Act. The accused has appeared before the Trial Court and pleaded not guilty for the above said offences.

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The prosecution examined PWs1 to 13, and got

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marked Exs.P1 to 12 and identified MOs.1 to 10 in support of its contention. The accused has denied all the incriminating materials available on record, but has not led any evidence in support of his defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution has proved the commission of the offences punishable under Section 342 of IPC and under Section 8 and 9(m) of the POCSO Act, while holding that the prosecution has not proved commission of the offence punishable under Section 4 of the POCSO Act. Accordingly, the accused was convicted and sentenced as stated above. Being aggrieved by the same, the accused is before this court.

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Heard Sri. Vinay Shreyas K.V., learned counsel for the appellant and Sri.Harish Ganapathy, learned HCGP for respondent No.1 and Smt. Manoranjini, learned counsel for respondent No.2. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

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My answer to the above point is 'negative' for the following:

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REASONS

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It is the contention of the prosecution that the victim, who is examined as PW1 was aged 3 years and the accused was aged 52 years. He was residing in the same locality. On the date of incident i.e., 08.10.2018, taking advantage of the situation that the child was all alone, he lured her by giving chocolates and took her to his house, where he committed penetrative sexual assault. This fact was informed by the child to her mother-PW2, who noticed soiling of the clothes of the child and questioned the accused. The neighbours have gathered and caught hold of the accused. Later, the mother took the victim to the hospital, where she

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was physically examined. The clothes of the victim, which were worn at the time of commission of the offence were collected. The accused was also taken to the doctor for examination. In the meantime, the statement of the victim and also other witnesses were recorded.

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The investigating officer, after completing the investigation, filed the charge sheet for the offences punishable under Sections 354 and 342 of IPC and Section 4, 7 and 8 of the POCSO Act. The Trial Court took cognizance of the offence and summoned the accused. The accused has appeared before the Trial Court and pleaded not guilty. The Trial Court framed the charge for the offences punishable under Section 342 of IPC and Section 4 of the POCSO Act.

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In order to prove the guilt of the accused, the prosecution has examined the victim girl as PW1. Even though the child was aged about 4 years at the time of her examination, the Trial Court on questioning, satisfied itself that the witness is capable of understanding the question and giving rational answers and therefore, examined the witness.

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During the chief-examination of PW1, witness refers to the accused as an old man (Budda) and states that he had taken her to his house by giving a chocolate, removed her pant, gagged her mouth, laid on her body and put his private part into her private part. The version of the victim, who is a child aged 4 years, was recorded by the Trial Court as it is in Hindi. Witness stated that as the accused has committed the act as narrated, she started screaming and thereafter, the accused had left her. She came to the house weeping and narrated the fact to her mother. Witness also states that thereafter, her mother took her to the doctor. It is interesting to note that even the victim identified the clothes worn by the accused on that day as MOs6 and 7. She identified the accused before the Court and stated that he is the person, who misbehaved with her. She also stated that she complained about the accused to the police. It is important to note that the accused has never cross-examined the material witness-PW1.

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PW2 is the mother of the victim girl. She is a maid servant. She narrated the incident stating that on the date of incident, she found that her daughter was missing. She

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searched for her and enquired the neighbourers. Later she noticed the victim girl coming out of the house of the accused and found that her clothes were soiled. On enquiry, the victim stated about the act, committed by the accused. The localities have caught hold of the accused, who was trying to run away from the spot. The victim was taken to the hospital for examination. She filed the first information as per Ex.P1.

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PW2 - the mother, stated that her daughter knows only Assamese language and she translated the version of the victim in Hindi. Even though this witness was cross examined by the learned counsel for the accused, nothing has been elicited from her, except denying the version given by her in the chief examination.

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PW3 is the Doctor, who examined the victim to determine her age and stated that she was aged between 3 to 5 years. Accordingly, he has given Ex.P4. This witness was also not cross-examined by the accused.

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PW4 is the Doctor, who examined the victim and the accused and collected the clothes, which were worn by them. He identified the clothes as Mos1 to 5. It is suggested to

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the witness that he had not examined the victim or the accused as stated by him and the same was denied by the witness. There is no further cross examination to deny about any of the facts stated.

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PW5 is the father of the victim girl. He is only a circumstantial witness. PW6 and 7 are the neighbourers, who are also circumstantial witnesses. PW8 is the person who employed the accused in his shop and is a hearsay witness.

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PW9 is the Police Inspector, before whom the accused was produced by the public, and he was in turn produced before the medical officer.

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PW10, recorded the statement of the victim-child as per Ex.P3. PW11 is the Doctor, who examined the victim and issued Ex.P2. She also identified Mos.6, 7, 8 and 10. It is suggested to the witness that she has concocted Ex.P2. The same has been denied by the witness.

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PW12 is the Police Inspector, who received the first information from PW2 and registered the FIR. He conducted

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initial investigation. Nothing has been elicited from him during cross examination.

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PW13 is the Investigating Officer, who completed the investigation and filed the charge sheet. Even this witness was not cross examined by the learned counsel for the accused.

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Ex.P1 is the first information filed by PW2-the mother of the child. This first information was registered against the accused on the very date of commission of the offence i.e., on 08.10.2018 at 5.30 p.m. Ex.P2 is the medical report pertaining to the victim, according to which, the evidence of signs of recent sexual intercourse was absent and the child was not used to an act like that of sexual intercourse.

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Ex.P4 is the Child Age Estimation Certificate, according to which, the child was aged above 3 years and below 5 years.

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From the above materials, it is clear that PW1victim is the material witness to the prosecution. Even though she was aged between 3 to 5 years, she was capable of explaining the act committed by the accused. The evidence of

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the victim girl recorded by the Trial Court discloses that, she not only explained the act committed by the accused in her own way, but also identified the accused as Budda.

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The version of the victim child is sufficient to state that the accused had lured her by offering a chocolate and taken her to his house, which was situated nearby, laid on her and committed sexual assault. Of course, the Medical Record Ex.P2 states that the evidence of signs of recent sexual intercourse was absent and the child was not used to an act like that of sexual intercourse, but the evidence of PW1 was never challenged by the accused. She was never cross examined by the learned counsel for the accused. Under such circumstances, I have no hesitation to accept the evidence of the child, who explained the act of the accused innocently, in her own way, which is sufficient to attract Section 342 of IPC and Section 8 and 9 (m) of the POCSO Act.

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Evidence of PW2-the mother of the victim was sufficient to support the contention taken by the prosecution and also to corroborate the evidence of the victim. Even though

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this witness was cross-examined, nothing has been elicited from her to disbelieve her version.

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The statement of the accused under Section 313 of

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Cr.PC was recorded by the Trial Court. In the elaborate examination of the accused, he denied all the incriminating materials, but he has not taken any specific stand nor he has stepped into the witness box. When there is no cross examination to the victim - PW1, when there is no satisfactory cross examination to PW2, I do not have any hesitation to accept the version of the prosecution with regard to the commission of the offence in question.

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Even though the medical record Ex.P2 states that there was absence of evidence of commission of sexual intercourse, the say of PW1 was sufficient to hold that the accused had taken the victim girl to his house, by offering a chocolate and committed sexual assault. It is also proved that the victim was hardly aged between 3 to 5 years at the time of incident. Under such circumstances, the prosecution is successful in proving the guilt of the accused for the offence

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under Section 342 of IPC and Section 8 and 9(m) of the POCSO Act.

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Learned counsel for the appellant contended that the victim was not in a position to understand the difference between the truth and false as recorded by the Trial Court and under such circumstances she cannot be considered as a witness.

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The proviso to Section 4 of the Oaths Act, 1969 provides that, where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

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The deposition of PW1 makes it clear that the Trial Court has questioned the child to form an opinion that the child

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is capable of understanding the question and giving a rational answer. The way in which, the victim has given her evidence before the Trial Court, satisfies the Court that the child was capable of understanding the question and narrated the incident and acts committed by the accused.

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Learned counsel for the appellant placed reliance on the decisions of Hon'ble Apex Court in the case of ' Agniraj & others etc Vs. State through Deputy Superintendent of Police CB-CID'¹ to contend that the Court has not gauged the capacity of the minor to understand the difference between the truth and falsehood and therefore, the evidence of PW1 cannot be taken into consideration. In paragraph 25 of the Judgment of the Hon'ble Apex Court, refers to the settled position of law

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that before proceeding to record the evidence of the minor witness, preliminary questions must be asked by the Court to ascertain whether the witness is able to understand the question and answer the same. The Court must satisfy about the capacity of the minor to understand the questions and answer the same. In the present case, the Trial Court has

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1 2025 SCC online SC 1203

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questioned the victim and satisfied itself about her capacity to understand and give rational answers.

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The second decision relied on by the learned counsel for the appellant is rendered by the Hon'ble Apex Court in State of Madhya Pradesh Vs. Balveer Singh '² to contend that, before the evidence of the child witness is recorded, the Trial Court must record its satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion. The Hon'ble Apex Court has broadly summarized the requirement of law to be followed, while examining a child as a witness and specified that the Evidence Act does not prescribe any minimum age for a witness to examine as a child witness to be a competent witness to depose.

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It also highlighted Section 118 of the Evidence Act to reiterate that, before the evidence of the child witness is recorded, the preliminary examination must be conducted by the Trial Court to ascertain as to whether, the child witness is capable of understanding the sanctity of giving evidence and its

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2 2025 SCC Online SC 390

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importance. All such requirements are satisfied by the Trial Court in the present case and the procedure in recording the evidence of PW1 cannot be found fault with on any ground.

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The third decision relied on by the learned counsel for the appellant is 'Pradeep Vs. the State of Haryana '³ to contend that unless satisfaction of the requirement under Section 118 of the Evidence Act is recorded by the Trial Court, the Court could not have relied on the evidence of PW1. On facts, it is to be noted that the age of the child in the said case was 12 years and therefore, the Court held that the proviso to Section 4 of the Oaths Act is not applicable. However, in view of the requirement of Section 118 of the Evidence Act, it is suggested that the learned Judge was under duty to record his opinion that the child is able to understand the questions put to him and give rational answer. This requirement is satisfied by the Trial Court in the present case. However, the Court has not questioned the child about its duty to speak truth before the Court. It is to be noticed that the child was hardly aged 3 to 4 years and under such circumstances, I am of the opinion that it

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3 AIR 2023 SC 3245

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is not fatal to the case of the prosecution that the Trial Court not questioned the witness about the sanctity of speaking truth before the Court.

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When the victim even though aged 3 to 5 years had spoken before the Court about the acts committed by the accused, in its own way, and it is corroborated by PW2-the mother of the first informant, the first information was lodged promptly without any loss of time, and when the accused has not chosen to cross examine PW1, I do not have any hesitation to hold that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 342 of IPC and Sections 8 and 9(m) of the POCSO Act.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial. It has appreciated the materials on record and arrived at a right conclusion. I do not find any reason to interfere with the same.

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