THE STATE OF KARNATAKA vs ABHIJIT AND ORS
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
ST
DATED THIS THE 1 DAY OF OCTOBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
CRIMINAL APPEAL NO.200054 OF 2018
(378(Cr.PC)/419(BNSS))
BETWEEN:
THE STATE OF KARNATAKA,
THROUGH JALANAGAR POLICE STATION, VIJAYAPUR,
REPRESENTED BY,
ADDL. STATE PUBLIC PROSECUTOR.
…APPELLANT
(BY SRI. ANILKUMAR NAVADAGI, ADDL.SPP,)
AND:
1. ABHIJIT S/O ASHOK BIRADAR,
AGE: 28 YEARS, OCC: BUSINESS.
PIN-586103.
2. ASHOK S/O RAYAGONDAPPA BIRADAR,
PIN-586103.
3. MEENAXI W/O ASHOK BIRADAR,
ALL ARE R/O. BANJARA NAGAR,
VIJAYAPUR-586103.
…RESPONDENTS
(BY SRI. S.S. MAMADAPUR, ADVOCATE FOR R1;
V/O DATED 19.01.2023 APPEAL DISMISSED AGAINST
R2 AND R3)
Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA
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THIS CRL.A. IS FILED UNDER SECTION 378 (1) & (3) OF
THE CR.P.C PRAYING TO:
A) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER DATED 14.08.2017 PASSED BY THE II ADDL. SESSIONS
AND SPECIAL JUDGE, VIJAYAPUR IN SPECIAL POCSO CASE
NO.8/2014 THEREBY ACQUITTING THE ACCUSED/
RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 363, 366, 376, 109 R/W SECTION 34 OF IPC AND
SECTION 3(a) R/W SECTION 4 OF POCSO ACT 2012.
B) SET ASIDE THE JUDGMENT AND ORDER DATED 14.08.2017
PASSED BY THE II ADDL. SESSIONS AND SPECIAL JUDGE,
VIJAYAPUR IN SPECIAL POSCO CASE NO.8/2014 THEREBY
ACQUITTING THE RESPONDENTS-ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 363, 366, 376, 109,
R/W SECTION 34 OF IPC AND SECTION 3(a) R/W SECTION 4
OF POCSO ACT 2012.
C) CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 366,
376, 109, R/W SECTION 34 OF IPC AND SECTION 3(a), R/W
SECTION 4 OF POCSO ACT 2012.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
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ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. This appeal is filed by the State under Section 378 (1)
and (3) of the Code of Criminal Procedure challenging
the judgment and order of acquittal dated 14.08.2017
passed by the learned II Additional Sessions and
Special Judge, Vijayapura in Special (POCSO) Case
No.8 of 2014 for the offences punishable under
Sections 363, 366A, 376, 109 read with Section 34 of
IPC, and Section 3(a) and 4 of POCSO Act, 2012.
2. The brief facts giving rise to filing of this appeal are as
follows:
It is the case of the prosecution that daughter of
complainant was kidnapped by accused No.1. On
14.02.2014 at about 10:00 a.m. she went to the
school but did not return and when it was enquired, it
was made known that the victim went to the school,
but left the school by 11:30 a.m., she was not traced
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out. Accused No.1 was known to the family of the
complainant and he was visiting often to the house of
the complainant. It was revealed that he is also
missing. When enquired, it was informed that the said
accused was wandering near the school of the victim.
So when called him on the phone it was switched off
and the parents of the accused were giving evasive
answers. The relatives came to know that accused
was going to Bengaluru. The complainant suspected
accused No.1 and his parents for kidnapping of his
daughter and lodged a complaint on 15.02.2014 at
10:00 p.m. On the basis of the complaint, the police
registered a case in Crime No.15 of 2014 of Jalanagar
Police Station, Vijayapura. Thereafter, accused No.1
was arrested along with the victim and they were
produced before the Court. After medical examination,
accused was remanded to the judicial custody. The
statement of the victim was recorded and based on
the statement, police have added another Section of
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POCSO Act. The police after investigation filed a
charge sheet against the accused for the offences
punishable under Sections 109, 376, 363, 366A read
with Sections 3(a) and 4 of POCSO Act 2012. A copy
of the charge sheet was supplied to the accused. The
Trial Court after hearing, framed the charges which
are read over and explained to the accused. The
accused denied the charges and pleaded not guilty
and claimed to be tried.
3. The prosecution to prove its case examined 15
witnesses as PW.1 to PW.15 and marked 30
documents as Ex.P1 to P30 and MO Nos.1 to 8. The
defence got marked 2 documents as Ex.D1 and D2.
The Trial Court has recorded the statement of the
accused under Section 313 Cr.P.C., Accused denied all
the circumstances arising against them and submitted
that they have no defence evidence. The trial Court
after hearing the learned counsel for the parties
framed the following points for consideration:
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“1. Whether prosecution proves beyond
reasonable doubt that on 14.2.2014 at about
10.00 am at Hemaraddi Mallamma School,
Vijaypur, the accused No.1 has kidnapped the
victim and accused No.2 and 3 have supported
and thereby committed an offence punishable
U/s.363 r/w Sec.34 of IPC?
2. Whether prosecution proves beyond
reasonable doubt that on above said date, time
and place, the accused No.1 has kidnapped the
victim with an intention to force for illicit
intercourse and accused No.2 and 3 have
supported and thereby committed an offence
punishable U/s.366 r/w Sec.34 of IPC?
3. Whether prosecution proves beyond
reasonable doubt that the accused in
furtherance of common intention kidnapped the
victim, took her to Bengaluru and committed
rape at Royal Lodge and thereby committed an
offence punishable U/s.376 r/w Sec.34 of IPC?
4. Whether prosecution proves beyond
reasonable doubt that accused No.2 and 3 have
abetted the accused No.1 for kidnap, sexual
assault against minor girl by accused No.1 and
thereby committed an offence punishable
U/s.109 r/w Sec.34 of IPC?
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5. Whether prosecution proves beyond
reasonable doubt that the accused No.1
kidnapped the victim, took her to Bengaluru and
committed penetrative sexual assault by
committing rape on her at Royal Lodge and
thereby committed an offence punishable
U/s.3(a) which is punishable U/s.4 of POCSO
Act?
6. What order?”
4. After appreciating the entire evidence on record, the
trial Court, answered point Nos.1 to 5 in the negative
and point No.6 as per the final order. The accused
persons were acquitted for the above said offences by
judgment dated 14.08.2017. The State being
aggrieved by the impugned judgment of acquittal has
filed this appeal.
5. Heard the arguments of the learned Additional State
Public Prosecutor for the appellant-State.
6. Learned Additional State Public Prosecutor submits
that the impugned judgment of acquittal passed by
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the trial Court is contrary to the facts, law and
material on record. He submits that while passing the
judgment, the trial Court has not properly appreciated
the evidence of the victim girl who was examined as
PW.9. She has clearly deposed that accused had taken
her forcibly to Bengaluru and there he took a room in
a Royal Lodge and there he had forcible sexual
intercourse with her against her will and consent.
Despite such supportive evidence, the trial Court has
acquitted the accused persons. He also submitted that
the victim girl was a minor aged about 16 years at the
time of incident. Hence, the provisions of POCSO Act
are applicable and the accused is liable for the offence
punishable under the provisions of POCSO Act. He also
submits that there is a presumption under Section 29
of the POCSO Act. Hence on these grounds, he prays
to allow the appeal.
7. Perused the records and considered the submissions
of the learned Additional State Public Prosecutor.
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8. The points that would arise for our consideration are:
i. Whether the Trial Court was justified in
passing the impugned judgment of acquittal
and the same is perverse, arbitrary and
without appreciation of entire evidence on
record?
ii. What Order?
9. The prosecution to prove its case examined PW.1, who
is the pancha for seizure mahazar i.e., Ex.P1. His
signature is marked as Ex.P1(a). PW.1 has turned
hostile.
10. PW.2 is a Police Constable who has deposed that on
21.03.2014, as per the direction of the PSI, he has
brought two wheeler bearing registration No.KA-
28/EA-0621. During the cross-examination, it is
elicited that said vehicle was parked in front of BLDE
Hospital and he brought the said vehicle to the police
station and he admits that he has not deposed that he
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has brought the said vehicle parked in front of BLDE
Hospital.
11. PW.3 is the father of the victim, i.e., complainant. He
has deposed that he had three children, two sons and
one daughter. Victim girl is the first daughter and her
date of birth is 01.06.1998 and he identified the
accused persons before the Court stating that they are
his distant relatives. He has deposed that on
14.02.2014, the victim left the house at 10:00 a.m. to
go to school but she did not return home on that day.
He made an enquiry with her friends and they have
stated that his daughter left the school at 11:30 a.m.
to go to house. He even contacted all his relatives in
Vijayapur, but could not trace her. It is stated in his
evidence that he suspected accused No.1 about
missing of his daughter as he used to visit his house
frequently and talking to his daughter. He was
wandering near the school in the morning hours
around 10:00 a.m. to 11:00 a.m. On 15.02.2014 he,
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his wife, his brother Ravi went to Jalnagar Police
Station and gave a written complaint and the
complaint was confronted to him. The said complaint
was marked as Ex.P4 and his signature is marked as
Ex.P4(a). On 17.02.2014, police summoned the
complainant and his wife to the Jalnagar Police
Station. In the police station, he saw his daughter and
accused No.1 and on enquiry to his daughter, she
informed that at the instigation of accused No.2 and
3, accused No.1 took her to his house on a motorcycle
and thereafter, took her to Bengaluru in a TATA
Sumo.
12. It is stated that accused No.1 took the victim to Royal
Lodge and they stayed there and his statement was
recorded. During the course of cross-examination, it is
elicited that his mother and mother of accused No.2
are from Koppad family of Yakkundi village and they
belong to Panchamsali caste. it is further elicited that
P.W.5, Siddeshwar is his cousin sister’s son. It was
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suggested to PW.1 that he arranged the marriage of
his daughter i.e. victim with Siddeshwar on
28.02.2016, but he voluntarily says that marriage
cards were printed but marriage did not take place
since his mother expired on 25.02.2016. It is also
elicited that the victim's school timing was from 07:30
a.m. to 12:30 p.m. He admits the said fact and he had
been to the school on that day at 12:30 p.m. and he
did not know the name of the teacher to whom he had
enquired about his daughter and he has admitted that
he has not stated before the police, the name of the
teacher to whom he had enquired about his daughter.
He also admitted that as on the date of filing the
complaint, the victim was aged 16 years. It is elicited
that he has mentioned the mobile numbers of accused
Nos.1 to 3 in the complaint. The police have not
informed him as to whether they have trapped the
mobile calls of accused No.1 to 3 to know their
location. He admitted that he has given house address
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of the accused in the complaint as “Banjara Cross,
Solapur Road, Vijayapur”. He admitted that the
distance between his daughter's school and the house
of the accused is about 4 to 5 kilometers. He also
admits that BLDE College is near Banjara Cross.
13. Roopsingh Lonari was examined as PW.4/CW2. He has
deposed that he knows the victim girl, her father,
PW.3 and CW.3. On 16.02.2014, evening about 05:00
to 06:00 p.m., Jalanagar Police had summoned him,
and Satish (CW.3) near Hemareddy Mallamma school,
victim was present and showed the place where she
was taken by accused No.1 and the spot where the
police have drawn the panchanama and took his
signature and photograph. Spot panchanama is
marked as Ex.P5 and the signature of the witness is
marked as Ex.P5(a). During the course of cross-
examination, it is elicited that his house is situated in
Ramanagar and it is admitted that he is doing a real
estate business. He was in his house when he was
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summoned by the Jalanagar Police. Police constable
had telephoned him to come to the police station by
the time, Satish was there in the police station and he
admits that in the photograph Ex.P6, Hemareddy
Mallamma school is not visible. But the name of police
constable is not disclosed.
14. Siddeshwar Bagewadi was examined as PW.5. He is
the relative of PW.3 and victim. He has deposed that
on 23.03.2014, the Jalnagar Police had summoned
him and CW.9 Raju Parshetty and police asked them
to accompany to Bengaluru along with victim and she
has shown the lodge in Bengaluru where she was
alleged to have been raped. They reached Bengaluru
at 08:30 a.m. on the next day and victim showed the
room No.117 stating that in the said room, accused
No.1 has committed rape. The police has enquired the
Manager of the said lodge and he produced the CCTV
camera footage, Register Book and Cash Bill Book and
police seized the said documents and panchanama
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was drawn and marked as Ex.P7, signature of the
witness is marked as Ex.7(a). photograph is marked
as Ex.P8.
15. During the course of cross-examination, he admitted
that the victim's father is the relative. It is suggested
that if he had married the victim, but he had denied
the said suggestion. On 23.03.2014, when the police
summoned to Jalnagar Police Station, at 06:45 p.m.,
he along with CW-9, Raju went to the house of PW.3,
father of the victim, then they all went with the victim
to the police station. It is denied that the victim has
showed room No.117 in the Royal Lodge and told that
in the said room, accused No.1 committed rape on
her. He admits that in Ex.P8 i.e., photograph, there is
no identity to show that this room is situated in the
Royal Lodge of Bengaluru and further admitted that
neither the Manager nor any worker of Royal Lodge
are there in the photograph. He also admits that in
Ex.P8, photograph, actual handing over of Ex.P9 to
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P13 by the Manager of the Royal Lodge is not visible.
He admits that on Ex.P9 to P13 he has not signed to
show that on that day they were seized under the
panchanama, Ex.P7 and he admits that below is his
signature but he has not put the date to show that he
has signed it on 24.03.2014.
16. PW.6, Nanjudappa, Cashier and receptionist of the
Royal Lodge was examined by the prosecution. He has
deposed that since 2½ years, he had been working as
cashier and receptionist in the Royal Lodge, Bengaluru
and he was on duty on 14.02.2014 from 09:00 p.m.
to 06:00 a.m. of 15.02.2014. He identified the
accused and he had deposed that accused had come
along with the girl to the Royal Lodge and stayed in
the room. He further stated that they checked in the
lodge in midnight of 14.02.2014 at 12:05 hours falling
on 15.02.2014 and requested to allot two rooms
stating that they require one room for girl and another
for him and another. Accordingly, Room Nos.117 and
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139 were allotted to them as per their request.
Register extract of the Royal Lodge was marked as
Ex.P9 which discloses the statement of arrival and
departure falling on 14.02.2014 and 15.02.2014 and
he had handed over the register to the police. Ex.P10
and P11 are the bills of duplicate copies retained by
them and handed over the same to the police. He also
deposed that in their lodge, they affixed the CC
camera to record the arrival and departure of all those
who come to their lodge and the CCTV footage was
given to the police marked as Ex.P12 and P13. During
the course of cross-examination, he admitted that
Room No.117 is in the first floor and Room No.139 is
situated opposite to Room No.117. Police have not
collected the CCTV footage of first floor of that day.
He also admitted that in Ex.P8 photograph, no room
boys or himself are visible. The police have recorded
his statement in Room No.117. It is elicited that he
had collected the DL particulars of accused No.1 and
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got it scanned but he has not handed over the copy to
the police since the police did not ask him. It is
elicited that he has submitted Ex.P9 to P13 at the
request of the police.
17. The prosecution in order to prove the age of the victim
examined the Headmaster of Hemareddy Malamma
High School, Vijayapura as PW.7. He has deposed that
he is working as a Headmaster of Hemaraddi
Mallamma High School, Vivekanagar, Vijaypur since
20 years and as per the request made by the police,
he has provided the certificate showing the date of
birth of victim who has studied in that school in 2014.
As per the records, her date of birth is 01.06.1998
and he has brought the General Register and the said
original register is marked as Ex.P15 and the entry in
Admission No.956 is marked as Ex.P15(a) and extract
of the same is marked as Ex.P15(b). During the cross-
examination, he admitted that he has issued Ex.P14
on the basis of entries in the original of Ex.P15(b). He
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also admitted that as per the entry, the victim girl has
previously studied in PDJ school, prior to her
admission to the school and admitted that she was
admitted to school on 30.05.2011.
18. Prosecution examined the Assistant Engineer, PWD as
PW.8 who has prepared the sketch map as per the
requisition of Jalnagar Police, the scene of occurrence
was situated near BDA ground and the sketch is
marked as Ex.P17. During the cross-examination, it is
elicited that Ex.P17 is a computerized map and he
prepared a rough sketch map of scene of occurrence,
based on that, he has prepared Ex.P17.
19. The victim was examined as PW.9. She has deposed
that her date of birth is 01.06.1998. During the year
2014, she was studying SSLC in Hemreddy Mallamma
School, Vijayapur. She admitted that she knew the
accused persons present before the Court. On
14.02.2014 at 10:00 a.m. she went to the school as
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usual, and after attending one period, she was
returning home. At that time, accused No.1 was
standing near the school ground with a Scooty and he
called her and told that he is in love with her and
asked her to come along with him, so that both could
go together somewhere. She refused to go with him
saying that her parents will scold her. However, he
forced her to sit on the Suzuki motorcycle and took
her up to BLDE College. From there, he took her in a
TATA Sumo vehicle by parking his motorcycle. Then
he took her to Bengaluru. They reached Bengaluru at
11:00 p.m., It is stated that in the midnight, he took a
room in the Royal Lodge. She further stated that for
first half an hour, they watched TV in the room and
thereafter, he embraced her and asked her to love
him and to have a sex with him. She told to wait till
the marriage, but inspite of that he forcibly committed
a rape on her. He consoled her saying that he would
set right the things. On the next day morning at 8:00
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clock, they left the lodge and left Bengaluru in the
same TATA Sumo vehicle and reached Vijayapura at
10:00 a.m., on the next day. She submits that she
gave a statement before the learned Magistrate
Bijapur and her statement is marked as Ex.P18 and
her signatures are marked as Ex.P18(a) and 18(b).
During the cross-examination, she deposed that it was
Bharat Hunnime and all the family members used to
go to their family deity temple at Yakkundi village on
every Hunnime and Amavasye and in the month of
January-2014, accused No.2 and 3 had visited her
house. It is suggested that she was in love with him
and she has denied the said fact and it is also denied
that the accused has not forced her to sit on the
Suzuki motorcycle. It is elicited that he took her on a
motorcycle by Jamkhandi bypass road, passing
Jalnagar Main Road. Again she says that he took her
from Vajrahanuman Gate linking to bypass and from
in front of RUDSHET, then reaching to Bableshwara
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naka and passed through the road in front of SP Office
and she has admitted that she did not scream for the
help during the transit while she was sitting on the
motorcycle. She also admitted that every Toll Naka
vehicle is stopped for 5 to 10 minutes to get clearance
from Vijaypur up to Bengaluru. She stated that she
did not get down from the vehicle for tea or tiffin and
she did not alert the security guards in any of the toll
gates stating that she had been kidnapped. She also
admitted that inside the room in the lodge, she did
not scream for help or made an attempt to come out
of the room even after sexual intercourse and
complained about the accused before the Manager of
the lodge. She admitted that PW.5, Siddeshwar is
from Yaranal village and his younger brother’s name is
Shivaraj and said Shivaraj’s marriage was performed
with one Menaka on 28.02.2016 at Sidrameshwar
Temple in Yaranal. She has denied that her marriage
was performed with PW.5 on the same day in the said
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temple. She admitted that marriage invitation cards
as shows to her were printed, and the marriage was
not performed because of this incident. The marriage
invitation card was marked as Ex.D2. It was
suggested that she always wears a Mangal Sutra and
Toe rings and while coming to the Court, she took off
the same. The said suggestion was denied. It is
elicited that she did not try to contact her father on
his phone.
20. Dr.Vijaya Biradar was examined as PW.10. She has
deposed that she was working as a Senior Specialist,
District Hospital, Vijayapur since June-2000. On
16.02.2014 at 06:05 p.m. she received a requisition
from PSI, Jalnagar Police Station, Vijayapur, to
examine the victim girl brought by WPC 1562
accompanied by her mother with a history of
abduction. The victim gave the history to the effect
that victim and accused are known to each other since
three months and she went willingly with accused
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No.1 on 14.02.2014 to Bengaluru in a car and stayed
overnight and had consensual sexual intercourse and
returned back to Vijayapur and she has taken a bath
and changed her clothes. She has deposed that there
are no external injuries over the body and on genital
examination, no injuries were found over the genital
region, white discharge present, hymen had old tear.
She has collected swabs and slides for onward
transmission for chemical analysis and she has
brought the entire case sheet and the same is marked
as Ex.P19. Rape Register is marked as Ex.P20.
Relevant entry is made in page No.45 and 46 marked
as Ex.P20(a) and 20(b). True copies are marked as
Ex.P20(c) and 20(d). She has issued the provisional
certificate and the said certificate is marked as Ex.P21
and her signature is marked as Ex.P21(a). She has
deposed that FSL report is marked as Ex.P22. From
the perusal of Ex.P22, as per the clinical examination
and FSL report signs of recent intercourse are absent
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and she has determined the age of the victim as 17 to
18 subject to confirmation by the radiologist.
21. During the cross-examination, it is elicited that
rupture of hymen may not be due to intercourse. It is
also elicited that it is not necessary that hymen should
get a rupture resulting in swelling of labia majora and
labia minora in an intercourse. She also admits that
rape is associated with greater violence than
associated with the consented intercourse.
22. The driver of the Tata Sumo was examined as PW.11.
He deposed that on 14.02.2014 accused called him
over the phone to bring a vehicle near Banjara Cross,
saying that he has to attend an examination. He
reached the Banjara Cross at 10:00 a.m., he deposed
that accused No.1 and victim who are present today,
came over there and he took them to Bengaluru via
Hungund, Ilkal, Hosapete, Chitradurga and reached
Bengaluru at midnight 12:00 hours and they went to
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Royal Lodge and booked two rooms. He stated that
accused and victim stayed in Room No.117, whereas
he stayed in Room No.139 and on the next day, they
checked out from the room and went to see Vidhana
Soudha. Thereafter, they left Bengaluru and reached
Vijayapura.
23. Sri.Tuljappa Sulfi, the Deputy Superintendent of Police
was examined as PW.12. He has deposed that he was
working as a CPI in Golgumbaj Circle, Vijaypur from
22.09.2013 to 24.03.2016 and Jalanagar Police
Station was under his circle. On 03.03.2014, he took
up the investigation of the case from CW-26 PSI. On
06.03.2014, he gave a requisition to PWD Engineer to
prepare the sketch map of the scene of occurrence
and recorded the statement of PW.11-driver of TATA
Sumo vehicle and seized both vehicles in the presence
of PW.1-Maruti and CW-7 Vijaykumar and drawn a
panchanama as per Ex.P2 and his signature is marked
as Ex.P2(b) and he gave instruction to PSI to go to
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Bengaluru and prepare the panchanama of the lodge
where accused and victim were resided. On the same
day, he forwarded the seized articles of the victim girl
and accused No.1 which were collected by the doctor
at the time of examination and forwarded to the FSL,
Belagavi and PSI has produced the CCTV footage,
cash bill, admission register, etc.
24. During the course of cross-examination, he has
admitted that he has gone through the investigation
done by the previous Investigating Officer. He
admitted that as per the statement of PW.11, he
picked up accused No.1 and the victim girl from near
BLDE College and during the period, he has not
collected the attendance register from the victim’s
school to ascertain as to whether she had attended
the school on the date of alleged kidnapping i.e. on
14.02.2014. It is elicited that except recording the
statement of PW.11, he has not collected any
document from him regarding his avocation. He
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admits that PW.11 has not stated in his statement to
the effect that the accused had called him on the
phone and asked him to bring his vehicle at 11:00
a.m. near Banjara Cross.
25. Sri.Ravindra Shirur, DSP, DCRB was examined as
PW.13. He stated that he was working as CPI,
Golgumbaj Circle, Vijayapura from 27.03.2014 to
26.05.2014. He has filed a chargesheet against the
accused. He admits that he has not recorded the
statement of the school teachers. He admits that
before filing the charge sheet, he did not send the
victim girl for assessment of age before the
Radiologist.
26. Sri.Ramesh Awaji, the PSI, Jalanagar police station,
Vijayapura, was examined as PW.14. He was in
charge of the police station. Complainant had filed a
written complaint and registered the crime in Crime
No.15 for 2014 and sent FIR to the Court and copies
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to the higher Officers and signature of the witness is
marked as Ex.P4(b). FIR is marked as Ex.P25 and his
signature is marked as Ex.P25(a).
27. From the perusal of the entire evidence on record, it
clearly discloses that the family of the victim and the
accused are relatives and if at all, accused No.1 had
abducted the victim from the school and the victim
and accused No.1 travelled from Vijayapura to
Bengaluru, she has not screamed or she has not
raised a hue and cry while in transit from Vijayapura
to Bengaluru. It is also admitted that while crossing
the toll gates, she did not scream that she was being
abducted. When they checked in the Royal Lodge
Bengaluru, she did not even make any hue and cry or
raised any alarm before the Royal Lodge Manager and
further, she had allowed the accused to have sexual
intercourse with her. Even on the next day, when they
checked out from the Royal Lodge, she did not
complain to the Manager or the staff working in the
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Royal Lodge. Both of them had gone to see the
Vidhan Soudha in the car. Further, the victim girl had
made a confession before doctor PW.10, that she went
voluntarily with accused No.1 and had sexual
intercourse with him. She further admits that she had
changed the clothes and further the doctor has opined
that there are no external injuries on the body and on
the genital region. As per the FSL report, there are no
signs of recent sexual intercourse and she has opined
that the victim might be aged about 17 to 18 years.
28. Further though the prosecution has produced the
photographs to show that the victim and accused have
stayed in a Royal Lodge in Room No.117, during the
course of cross-examination of a charge sheeted
witness, they admitted that the photographs do not
bear the Room number of Royal Lodge and also the
manager of the royal lodge was examined and he has
stated that the photos which are marked as Ex.P7 to
Ex.P13 do not pertain to the Royal Lodge. Further, the
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prosecution has failed to collect the CCTV footage of
first floor of Royal Lodge wherein Room Nos.117 and
139 are situated. Thus, the prosecution has failed to
prove that accused No.1 has committed a rape on the
victim girl by kidnapping her. Admittedly, the victim
girl is aged about 17 to 18 as per the evidence of
PW.10 Doctor and further the DSP, Investigating
Officer has not taken any steps to assess the age of
the victim. The prosecution has produced the school
certificate to show the age of the victim i.e., PW.7
who has produced the certificate marked as marked
as Ex.P14, to show the age of the victim. On perusal
of the records, it is clear that she is more than 16
years. Admittedly, the victim is between 16 to 18
years of age as per the evidence of Headmaster, PW.7
and she was very much in the age of understanding
what was right and wrong for her.
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29. The Hon'ble Apex Court in the case of Tilku Alias
1
Tilak Singh vs. The State of Uttarakhand , held in
para-18 that, which reads as follows:
“it is thus clear that prosecutrix, who according to
the learned Single Judge of the High Court, was
between 16 to 18 years of age was very much in the
age of understanding as to what was right and wrong
for her.”
30. The Hon’ble Supreme Court in the case of The State
2
of Uttar Pradesh vs. Anurudh and Another , held
in paragraph-19, which reads as under:
19. As the conclusions drawn above indicate the
impugned judgment and order of the High Court has
to be set aside on grounds of transgression of the
jurisdiction present and thereby lacking the
appropriate directions. It is to be set aside also
because it goes against the statutory prescription
under the JJ Act. Be that as it may, this Court has
not lost sight of the well-intentioned purport of this
order. The POCSO Act is one of the most solemn
articulations of justice aimed at protecting the
children of today and the leaders of tomorrow. Yet,
when an instrument of such noble and one may even
say basic good intent is misused, misapplied and
used as a tool for exacting revenge, the notion of
1
Crl.A.No.183/2014 disposed of on 02.06.2025
2
2026 INSC 47
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justice itself teeters on the edge of inversion. Courts
have in many cases sounded alarm regarding this
situation. Misuse of the POCSO Act highlights a grim
societal chasm - on the one end children are silenced
by fear and their families are constrained by poverty
or stigma, meaning thereby that justice remains
distant and uncertain, and on the other hand, those
equipped with privilege, literacy, social and monetary
capital are able to manipulate the law to their
advantage. The impugned judgment is one amongst
many where Courts have spoken out. Not only are
instances rife where the age of the victim is
misrepresented to make the incident fall under the
stringent provisions of this law but also there are
numerous instances where this law is used by
families in opposition to relationships between young
people. In Satish alias Chand v. State of U.P. , the
High Court, noted that on few occasions concern had
been expressed by the Court with respect to
application of the Act on consenting adolescence
when it comes to consensual relationships between
teenagers, four factors have been highlighted which,
is crucial for the Courts to consider:
“A. Assess the Context: Each case should be
evaluated on its individual facts and
circumstances. The nature of the relationship
and the intentions of both parties should be
carefully examined.
B. Consider Victim's Statement: The statement
of the alleged victim should be given due
consideration. If the relationship is consensual
and based on mutual affection, this should be
factored into decisions regarding bail and
prosecution.
C. Avoid Perversity of Justice: Ignoring the
consensual nature of a relationship can lead to
unjust outcomes, such as wrongful
imprisonment. The judicial system should aim
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to balance the protection of minors with the
recognition of their autonomy in certain
contexts. Here the age comes out to be an
important factor.
D. Judicial Discretion: Courts should use their
discretion wisely, ensuring that the application
of POCSO does not inadvertently harm the very
individuals it is meant to protect.”
The Delhi High Court in Sahil v. the State NCT of
Delhi the Court noted in para 11 of the order that
POCSO cases filed at the behest of a girl’s family
objecting to romantic involvement with a young boy
have become common place and consequent thereto
these young boys languish in jails. Therein, reference
is also made to an order of the Gujarat High
Court35, where the Court noted that considering the
closeness in age of the prosecutrix and the accused
as also the fact that she had left home of her own
accord observed that the application deserved
consideration.
This chasm between access and abuse is also
mirrored in the misuse of Section 498-A IPC and the
Dowry Prohibition Act, 1961.
Amongst numerous examples, we may only refer to
Rajesh Chaddha v. State of U.P., where this Court
lamented the use of these Sections without specific
instances or relevant details, among other cases. It
is also to be stated though that no amount of judicial
vigilance against misuse can alone bridge this ever-
widening gap. The first line of defence lies with the
Bar i.e., the body that translates grievance into
action and is the gatekeeper of justice at the point of
entry. When it comes to matters such as these, the
responsibility of the advocate is profound – to
examine the allegations with detachment and
necessary discretion and to counsel restraint when
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grievance masks vengeance and to refuse
participation in litigation when it can be seen that an
ulterior motive is sought to be agitated under the
guise of seeking protection of the law. It is only
when the Bar takes a principled, proactive role, that
the legislation intended as a shield can be stopped
from being twisted into a weapon. A lawyer who
tempers aggression with calm, reason and
rationality, protects not only the opposing party from
unwarranted harm but also the client from the long-
term consequences of frivolous or malicious
litigation, including adverse orders, and judicial
censure. By taking a principled stand, the Bar acts as
a crucial filter, preventing the legal system from
being overwhelmed by abuse masquerading as
enforcement. Such self-regulation strengthens public
faith in the profession, ensures that judicial time is
reserved for genuine disputes, and reinforces the
foundational idea that law is a means of justice, not
a weapon of convenience. In this sense, the ethical
vigilance of lawyers is not ancillary to justice, it is
indispensable to it. When they do not do so, the
chasm alluded to above widens. Society also must
match institutional reform with moral awakening.
The intent and object of these legislations must be at
the forefront when a person wishes to lodge a
complaint thereunder. The misuse of these laws is a
mirror to the opportunistic and self-centered view
that pervades the application of law. It is only
through discipline, integrity and courage that these
problems can be remedied and rooted out. Any
legislative amendment or judicial direction will
remain lack-luster without this deeper change.
We have referred to certain instances of the High
Courts noting the misuse/misapplication of the
POCSO Act, somewhat in line with the indices
appended to the impugned judgment as also its
progenitors.
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Considering the fact that repeated judicial notice has
been taken of the misuse of these laws, let a copy of
this judgment be circulated to the Secretary, Law,
Government of India, to consider initiation of steps
as may be possible to curb this menace inter alia,
the introduction of a Romeo – Juliet clause
exempting genuine adolescent relationships from the
stronghold of this law; enacting a mechanism
enabling the prosecution of those persons who, by
the use of these laws seeks to settle scores etc.”
31. It is thus clear from the material on record that it is a
case of misuse/misapplication of POCSO Act, by
showing the age of the victim as a minor as the family
was opposing to the said relationship between them.
The marriage of the victim was arranged with PW.5.
and Though the wedding card was produced and both
victim and PW.5 have admitted that wedding cards
were printed, their marriage was not performed
because of the death of the grandmother of the
victim. PW.4 has not disclosed the name of constable
who called him. The prosecution has failed to produce
any document to show that there was a bereavement
in the family of the victim and the marriage was
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cancelled. From the perusal of Ex.D2, it is clear that
the marriage of the victim was arranged with PW.5.
32. The scope of interference in the case of acquittal is
very limited in view of the proposition laid down by
the Hon'ble Apex Court in the case of Jafarudheen
3
and others vs. State of Kerala wherein the Hon'ble
Apex Court held at para 25 as follows:
“25. While dealing with an appeal against the
acquittal by invoking Section 378 of Cr.P.C., the
Appellate Court has to consider whether the Trial
Court's view can be termed as a possible one,
particularly when the evidence on record has been
analyzed. The reason is that an order of acquittal
adds up to the presumption of innocence in favour of
the accused. Thus, the Appellate Court has to be
relatively slow in reversing the order of Trial Court
rendering acquittal. Therefore, the presumption in
favour of the accused does not get weakened but
only strengthened. Such a double presumption that
enures in favour of the accused has to be disturbed
only through scrutiny on accepted legal parameters.”
33. Thus, the Trial Court, considering the entire material
on record, was justified in passing the impugned
3
2022 SCC Online SC 495
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judgment. In view of the above discussion, we answer
point No.1 in the negative.
34. Accordingly, we proceed to pass the following:
ORDER
The Criminal Appeal is dismissed confirming the
judgment and order of acquittal dated 14.08.2017 passed
by the learned II Additional Sessions and Special Judge,
Vijayapura in Special (POCSO) Case No.8 of 2014.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(SUBRAMANYA RANGARAO)
JUDGE
VNR
List No.: 2 Sl No.: 15
Ct:pk