Srikantha @ Ambu Vs the State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2025)

Srikantha @ Ambu Vs the State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Appeal allowed; the judgment of conviction and order on sentence dated 10.03.2017 in Special C.C.No.198/2013 set aside; accused/appellant acquitted of the offences under Sections 323, 366 and 448 IPC; fine amount, if any deposited, to be returned to him in accordance with law; Registry directed to send a copy of the judgment with trial Court records to the concerned Court.

Issue for consideration

Whether the conviction under Section 448 IPC (house-trespass) was sustainable, given that the prosecution produced no document showing the complainant's house belonged to him and the witnesses, including the victim, did not depose to trespass by the accused. +2 more

Court's answer

The conviction under Section 448 IPC cannot stand: the prosecution produced no document to show the complainant's house belonged to him, the Investigating Officer said nothing about the non-production of the Khata/assessment extract, and there is no cogent, clinching, corroborative evidence that the accused trespassed into the house.

Ratio / Principle

The conviction under Section 323 IPC cannot stand: although Ex.P1 stated that the accused and two others assaulted PW1 with hands, PW1 did not so depose in evidence and there is no evidence placed before the Court to sustain the conviction.

Key takeaways

The conviction under Section 366 IPC cannot stand: the victim deposed that the accused took her in an autorickshaw and her examination discloses nothing attracting Section 366; on careful examination of the entire record the Court finds no evidence constituting the offences under Sections 323, 448 and 366 IPC, the prosecution case being uncorroborated by legal evidence, making the trial Court's convictions unsustainable in law.ratio¶27
As the State did not prefer any appeal against the acquittal of the accused under Section 376 IPC and Section 4 of POCSO Act, 2012, the Court held there was no need to discuss those accusations and confined its review to the convicted offences.ratio¶14

Detailed headnote1 paragraphs

Criminal appeal allowed — convictions under Ss.448, 323 and 366 IPC set aside. The High Court of Karnataka (G Basavaraja, J.), in an appeal under S.374(2) Cr.P.C against the judgment and sentence dated 10.03.2017/14.03.2017 passed by the LIV Additional City Civil and Sessions Judge, Bengaluru (Spl.C.C.No.198/2013), set aside the convictions under Ss.448, 323 and 366 IPC and acquitted the accused. The State had not appealed the trial Court's acquittal under S.376 IPC and S.4 of the POCSO Act, 2012, so those accusations were not discussed. On merits: (i) no document proved the complainant's house belonged to him, the Investigating Officer gave no explanation for non-production of the Khata/assessment extract, and PW8 (victim) did not depose to any trespass — S.448 conviction unsustainable; (ii) PW1 did not depose to being assaulted though Ex.P1 said so — S.323 conviction unsustainable; (iii) the victim spoke of being taken in an autorickshaw and nothing in her examination attracted the ingredients of S.366 — conviction unsustainable; the entire prosecution case was uncorroborated by legal evidence. Any fine deposited (Rs.5,000/- imposed under S.366) to be returned to the accused.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20^TH DAY OF NOVEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE G BASAVARAJA

CRIMINAL APPEAL NO. 686 OF 2017 (C)

BETWEEN:

SRIKANTHA @ AMBU S/O JAVARAPPA AGED ABOUT 21 YEARS R/AWT NO.6, 1^ST CROSS 1^ST MAIN ROAD IN FRONT OF COUNCILLOR SHARADAMMA'S HOUSE ABBIGERE, BENGALURU CITY - 560 090.

…APPELLANT (BY SRI. K B K SWAMY.,ADVOCATE) AND:

Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA

THE STATE OF KARNATAKA REPRESNTED BY RAJAGOPALA NAGARA POLICE STATION BENGALURU CITY - 560 058 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE - 560 001.

…RESPONDENT (BY SRI. B. LAKSHMAN, HCGP)

THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 10.03.2017 AND SENTENCE DATED 14.03.2017 PASSED BY THE LIV ADDL. CITY CIVIL AND S.J., BANGALORE IN

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SPL.C.C.NO.198/2013 - CONVICTED THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 448,323 AND 366 OF IPC.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

ORAL JUDGMENT

Appellant has preferred this appeal against the judgment of conviction and order on sentence dated 10.03.2017 passed in Special C.C.No.198/2013 by the LIV Additional City Civil and Sessions Judge, Bengaluru City (for short 'the trial Court').

For the sake of convenience, the parties herein are referred to as per their rank before the trial Court.

Brief facts leading to this appeal are that, the Police Inspector, Rajagopalanagar Police, Bengaluru has submitted charge sheet against the accused for the offence under sections 448, 323, 363, 366 and 376 of Indian Penal Code and section 4 of POCSO Act.

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It is alleged by the prosecution that, the father of the victim girl lodged a complaint on 25.03.2013 alleging that the appellant has entered into his house and assaulted him and forcibly kidnapped his daughter on motorbike. The victim girl was a minor and aged about 16 years as on the date of the alleged incident. On the basis of complaint, First Information Report was registered in Crime No.144/2013 for the offence punishable under sections 448, 323, 366(A) R/w. section 34 of IPC. After 3 months after the complaint lodged, the victim girl was traced with the appellant. Thereafter, the victim was sent for medical examination and her statement was also recorded. After the conclusion of the investigation, the charge sheet was filed against the appellant for offences punishable under sections 448, 323, 366(A), 376 of IPC R/w. Section 4 of POCSO Act, 2012. The accused was in judicial custody.

Thereafter, he was enlarged on bail. Upon hearing on charges, the trial Court has framed charges for the alleged commission of offences. Same was read over and

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explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.

To prove the guilt of the accused, prosecution has examined 9 witnesses as PWs.1 to 9, 11 documents were marked as Exs.P1 to 11 and 3 material objects were marked as MOs.1 to 3. On closure of prosecution side evidence, statement under Section 313 was recorded. Accused has denied the evidence of prosecution witnesses, however, did not choose to lead any defense evidence on his behalf. In his statement, it is stated that he has not committed any sexual assault on the victim and there is enmity between the victim family and themselves, for that reason, a false complaint has been filed against him.

Having heard the arguments on both sides, the trial Court acquitted the accused for the offences punishable under Section 376 of IPC and under Section 4 of POCSO Act, 2012. The trial Court convicted the accused and sentenced to undergo Simple Imprisonment for a period of

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6 months for the offence under Section 448 of IPC.

Further the accused is sentenced to undergo Simple Imprisonment for a period of 6 months for the offence under Section 323 of IPC. Further the accused is sentenced to undergo Simple Imprisonment for a period of 3 years for the offence under 366 of IPC and shall pay a fine of fine of Rs.5,000/-. Being aggrieved by the judgment of conviction and order on sentence, the accused/appellant has preferred this appeal.

Learned counsel for the appellant Sri K.B.K.Swamy would submit that judgment of conviction and order on sentenced passed by the trial Court is contrary to law and evidence. The trial Court has not properly appreciated the evidence on record in accordance with law and facts.

The learned Sessions Judge ought have looked into the aspect of non-tendering of medical evidence pertaining to the alleged assault committed on the complainant and

his wife. It was only on the oral statement of the

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complainant, the learned Sessions Judge has convicted the accused. Though the complainant, in his complaint, states that the appellant and two others have entered into the premises with deadly weapons such as choppers/longs, no recovery is made at the behest of the accused or any attempt made to recover the weapons. It is also important to note that two others stated in the complaint, were not identified and arrested. The whole investigation is a stage-managed, done with a sole intention to implicate the accused as he do not belong to the caste of the complainant. The vehicle alleged to have been used to obduct the victim was also not seized and identified in the

course of trial. Without tendering such valuable piece of evidence, the prosecution has failed to prove the case beyond all reasonable doubts. The victim in her evidence has clearly stated that she was not kidnapped and she left

her house on her own for which the witness was treated hostile and cross-examined by the prosecution. As there was no incriminating evidence against the accused, he did

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not cross-examine the witness. Due to non crossexamination of the victim, the trial Court has come to the wrong conclusion that the accused has accepted the prosecution version of kidnapping. As the burden of proof is always on the prosecution, the accused need not prove or disprove anything. Without following the principle of criminal jurisprudence, the trial Court has convicted the accused erroneously.

Further he would submit that in para No.30 of the judgment, the trial Court has observed that, unless contrary is proved, the evidence of victim has to be accepted by this Court as per provision of Section 29 of POCSO Act, 2012 and the same will be pressed into the service only if an offence under the provisions of POCSO Act is proved. Since the trial Court has acquitted the accused for the offence under Section 4 of the POCSO Act, Section 29 is not applicable to the case on hand. On the

strength of Section 29 of the POCSO Act, the trial Court has convicted the accused for the offence under Section

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366 of Indian Penal Code, which is not sustainable under

law. On all these grounds, it is sought for allowing this appeal.

As against this, the learned HCGP Sri Lakshman.B, submits that the trial Court has properly appreciated the evidence on record in accordance with law and facts. There are no materials to interfere with the impugned judgment of conviction and order on sentence and sought for dismissal of the appeal.

I have examined the materials placed before this Court.

On the basis of the complaint filed by ShivannaFather of the victim examined as PW1, Rajagopala Nagar Police have registered the case against accused No.1Srikantha @ Ambu and others for the offence under sections 448, 323 and 366(A) R/w Section 34 of IPC. After investigation, the Investigating Officer has submitted charge sheet against the accused for the offence under

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sections 448, 323, 363, 366, 376 of IPC and Section 4 of POCSO Act, 2012.

The Investigating Officer has not stated anything for non-filing of charge sheet against other accused and also regarding provisions of Section 34 of IPC. Even in his evidence, the Investigating Officer has not whispered anything in this regard.

The trial Court has acquitted the accused for the offence under Section 376 and Section 4 of POCSO Act. The State has not preferred any appeal against the judgment of acquittal of the accused for the offence under section 376 of IPC and section 4 of POCSO Act, 2012. Therefore, there is no need to discuss about the accusation made against the accused for the offence under section 376 of IPC and section 4 of POCSO Act.

With regard to the offence punishable under Section

448 of IPC is concerned, the prosecution has to prove the

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essential ingredients to constitute the offence punishable

under section 448 of Indian Penal Code as under:

"(a) the accused committed criminal trespass;

(b) that he trespassed by unlawfully entering into or by remaining on the property unlawfully after initial lawful entry;

(c) that such trespass was in respect of a building tent or vessel

(d) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property."

In the complaint Ex.P1 filed by the complainant-PW1,

Shivanna has stated that on 24.03.2013 at 10.00 pm, when he was in his house, the accused came along with 3 boys and trespassed into his house and dragged his daughter out of the house. When PW1 prevented the accused while dragging his daughter, they have assaulted PW1 with hands and took their daughter on motorcycle.

In the case on hand, the prosecution has not produced any documents to show that the house of

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complainant situate at No.68, 3^rd Cross, Hegganahalli, Shivanandanagar, Bangalore, belongs to him (PW1). The Investigating Officer has not whispered anything as to non-production of the Khata extract/assessment extract in respect of the said house.

The alleged incident took place on 24.03.2013. Complaint came to be filed on 25.03.2013 at 10.30 hours. First Information Report reveals that the learned Magistrate received the FIR on 26.03.2013 at 11.00 am. The delay in filing the complaint has not been explained by the prosecution.

PW1-Shivanna has deposed that, one year back in the month of March at 10.00 pm, three persons entered into the gate of their house by holding longs and made galata. He (complainant) came outside, then they pushed PW1 and took the victim on bike.

PW2-Gowramma has also deposed the same.

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PW7-Pavithra who is the elder sister of the victim has not supported the case of the prosecution.

PW8-Victim girl has not deposed that the accused/appellant and others trespassed into their house and took her on bike. Therefore, it is crystal clear that, absolutely there is no cogent, clinching, corroborative evidence to convict the accused for the offence under section 448 of Indian Penal Code.

With regard to offence under Section 323 of IPC is concerned, in Ex.P1, the complainant-PW1 has stated that the accused-Srikantha and two others assaulted PW1 with hands. PW1-Shivanna has not deposed in his evidence that the accused and two others have assaulted him with hands. Absolutely, there are no evidence placed before this Court to convict the accused for the offence under section 323 of Indian Penal Code.

With regard to offence under Section 366 of Indian Penal Code is concerned, it is relevant to mention here as

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to the essential ingredients to constitute the offence under

said section. The same is as under:

(a) Essential Ingredients.- An offence under this section has following essential ingredients:

(i) Kidnapping or abducting of any woman;

(ii) Such kidnapping or abducting must be-

(i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or

(ii) in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse; or

(iii) by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be, forced or seduced to illicit intercourse.

It is immaterial whether the woman kidnapped is a married woman or not."

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In the case on hand, it is alleged in the complaintEx.P1 that the accused and two others took the victim from their house on bike. PW1-Shivanna and PW2Gowramma, the parents of the victim have deposed the same.

PW8-victim has deposed that, on the alleged date of incident, the accused took her in an autorickshaw. In her examination, the victim has not whispered anything to attract the provisions of Section 366 of Indian Penal Code.

On careful examination of the entire evidence on record, I do not find any evidence to constitute the offence punishable under sections 323, 448 and 366 of IPC. The entire case of the prosecution is not corroborated by legal evidence. However, the trial Court has convicted the accused for the commission of alleged offence under sections 323, 366 and 448 of Indian Penal Code, which is not sustainable under law. Accordingly, I proceed to pass the following:

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O R D E R

(i) Appeal is allowed .

(ii) The judgment of conviction and order on sentence dated 10.03.2017 passed in Special C.C.No.198/2013 by the LIV Additional City Civil and Sessions Judge, Bengaluru City, is set aside.

(iii) Accused/appellant is acquitted of the offence under sections 323, 366 and 448 of Indian Penal Code.

(iv) Fine amount, if any, deposited by the accused shall be returned to him in accordance with law.

(v) Registry is directed to send copy of this

judgment along with trial Court records to the concerned Court.

Sd/(G BASAVARAJA) JUDGE

DHA List No.: 1 Sl No.: 61