JAVEED, vs THE STATE OF KARNATAKA BY
- Court
- Karnataka High Court
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CRL.A No. 127 of 2026
CNR: KAHC010056842026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 14 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.127 OF 2026 (C)
BETWEEN:
JAVEED,
S/O ABBAS SAB,
AGED ABOUT 46 YEARS
R/AT PARK MOHALLA,
SIRA TOWN,
TUMAKURU DISTRICT - 572 137
…APPELLANT
(BY SRI. S VIDYA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY SIRA POLICE STATION
TUMAKURU,
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001
2. XXXXX
MINOR,
REP. BY HER NATURAL GUARDIAN
AREEFA BANU,
W/O SYED SHAKEEL,
AGED ABOUT 46 YEARS,
R/AT SHIRA TOWN,
PARK MOHALLA,
TUMAKURU DISTRICT,
KARNATAKA - 572 137
Digitally signed by
LAKSHMINARAYAN N
Location: High Court
of Karnataka
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CRL.A No. 127 of 2026
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3. XXXXX
MINOR,
REP. BY HER NATURAL GUARDIAN
RAZIYA,
W/O AHAMMED SHARIF,
AGED ABOUT 43 YEARS,
R/AT PARK MOHALLA,
SIRA TOWN, TUMAKURU,
KARNATAKA - 572 137
…RESPONDENTS
(BY SRI. K.NAGESHWARAPPA, HCGP FOR R1;
R2 & R3 ARE SERVED - BOTH ARE MINORS REPRESENTED
BY NATURAL GUARDIAN AND UNREPRESENTED)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C
(U/S 415(2) BNSS) BY THE ADVOCATE FOR THE APPELLANT/S
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED IN SPL.C NO.384/2019 DATED 05.11.2022 &
10.11.2022 BY THE COURT OF THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE (FTSC-I) AT TUMAKURU AND
CONSEQUENTLY ACQUIT THE APPELLANT OF THE OFFENCE
PUNISHABLE UNDER SECTION 363 OF IPC AND SECTION 10
r/w 9(m) OF POCSO ACT, 2012; AND ETC
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 127 of 2026
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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
1. The appellant has preferred this appeal against
the judgment of conviction and order on sentence passed
by the Addl. District and Sessions Judge, (FTSC-I),
Tumakuru in Spl.C No.384/2019 dated 05.11.2022.
2. Brief facts leading to this appeal are that the
Police Inspector, Sira Police Station has laid charge-sheet
against the accused for the offences punishable under
Sections 366A of IPC and Section 4, 11 and 12 of POCSO
Act.
3. On the basis of the first information statement
given by PW2 before Sira Town Police Station on
30.05.2018 at 11.00 a.m., alleging that on 28.05.2018 in
the afternoon at 1.00 p.m, her daughter/PW1 was playing
with PW4 near their house. Around 2.00 p.m. PW1 did not
come home for lunch. When she came out of the house,
she did not see PW1 anywhere. She enquired with PW3
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the mother of PW4 and she thereafter along with PW3
searched for PW1 and PW4 everywhere. At about 3.00 p.m
in the afternoon PW1 to PW4 came crying from the side
burial ground. The accused was coming behind them.
When they enquired with PW1 to PW4, they pointed out
towards the accused and stated that he had taken them to
the burial ground on the pretext of giving chocolate. He
had there afterwards kept his penis in the mouth of PW4
and had bitten the private parts of PW1 with his teeth. She
and PW3 screamed. The accused brought them back and
escaped from there. She informed her husband who was
working as a painter at Bengaluru over phone. Hence, she
was filing her first information statement, belatedly.
4. After receipt of the aforesaid first information
statement, PW13/PSI of Sira Police Station has registered
a case in Crime No.220/2018 and submitted the FIR to the
Court. After investigation the Investigating Officer has
submitted the charge-sheet for the offence punishable
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under Section 366(A) of IPC, Section 4, 11, 12 of POCSO
Act, 2012.
5. The accused appeared before the Trial Court
and enlarged on bail. On hearing the charge, the trial
Court has framed the charges for the offence punishable
under Section 366, 376(a)(b) of IPC, Section 5(m) and 6
of POCSO Act. Same were read over and explained to the
accused. Having understood the same accused pleaded
not guilty and claimed to be tried.
6. To prove the guilt of the accused, the
prosecution has examined 13 witnesses as PW1 to PW13,
17 documents were marked as Exhibit P1 to P17, 4
material objects were marked as MO.1 to 4. On closure of
prosecution side evidence, statement of the accused under
Section 313 of Code of Criminal Procedure was recorded.
The accused have totally denied the evidence of
prosecution witnesses. However, he has not chosen to lead
any defence evidence on his behalf.
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7. Having heard the arguments on both sides, the
trial Court has acquitted the accused for the offence
punishable under Section 376 of IPC and Section 6 of the
POCSO Act. However, the trial Court has convicted the
accused for the offences punishable under Section 363 of
IPC and Section 10 read with Section 9(m) of POCSO Act
and has passed sentence to undergo rigorous
imprisonment for a period of 7 years with fine of
Rs.50,000/- for the offence punishable under Section 10 of
POCSO Act and further sentenced to undergo simple
imprisonment for a period of 5 years with fine of
Rs.25,000/- for the offence punishable under Section 363
of IPC. Being aggrieved by this judgment of conviction and
order on sentence, the appellant has preferred this appeal.
8. The learned counsel for the appellant
Sri S.Vidya would submit that, on the date of the incident
accused has committed the alleged offence against the
victims PW1 and PW4. PW4 has completely turned hostile.
She has not supported the case of the prosecution. This
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witness has clearly deposed that the accused has not
caused any humiliation to her. Even in the cross-
examination made by the SPP after treating her as hostile
witness, she has categorically denied the statement said to
have been recorded by the Investigating officer under
section 161 of CrPC, which is marked as Exhibit P6. She
has also denied as to the contents of Mahazar Exhibit P2.
According to the case of the prosecution PW4 was
examined by PW 10 Doctor. She has issued report as per
Exhibit P5. In Exhibit P5 and in the evidence of PW10,
there are no recent sexual interference. Exhibit P5 the
medical report of PW4, also reveals that the alleged
TH
incident took place on 28 May 2018 at 6:30 PM. The
TH
doctor has examined this victim on 30 May 2018. If
really, the accused has committed the offence, PW3
mother of victim-PW4 would have taken her daughter to
the Doctor, but she has not done so. The investigating
officer has not explained anything as to non-production of
this victim before the medical officer for about two days.
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PW4 herself has not supported the case of the prosecution.
Hence, the case of prosecution will create substantial
reasonable doubt about the alleged incident.
9. With regard to the evidence of PW1-victim is
concerned, the alleged eyewitnesses PWs5, 6 and 8 have
not supported the case of the prosecution. All these
witnesses have turned hostile, and with the permission of
the Court they have been cross examined by the APP. In
the cross-examination also, these witnesses have
categorically denied as to the statement said to have been
recorded by investigating officer under section 161 of
CrPC, which are marked as Exhibits P7, P8 and P9. PW2,
the mother of PW1 victim has not whispered anything as
to the delay in filing the complaint and also delay in taking
the child for treatment. PW9 doctor has deposed as to
examination of PW1 and also as to issuance of medical
report Exhibit P3. Exhibit P3 reveals that the date of
TH
offence is shown as 30 May 2018 by women Police
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Constable Jyothi. Exhibit P3 does not reveal as to the
injuries caused to the PW1.
10. The FSL report is also not supported the case of
the prosecution. Though there are no cogent, convincing,
clinching evidence, the trial Court has convicted the
accused, which is not sustainable under law. On all these
grounds, it is sought for allowing this appeal.
11. As against this, learned HCGP, Sri
Nageshwarappa.K would submit that the trial Court has
properly appreciated the evidence on record in accordance
with law and facts and sought for dismissal of this appeal.
12. Having heard the arguments on both sides and
perusal of the materials placed before this Court, the
following points would arise for my consideration.
1. Whether the appellant has made out
grounds to interfere with the impugned judgment
of conviction and order on sentence passed by the
trial Court?
2. What order?
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Regarding Point No.1:
13. I have examined the materials placed before
the Court.
14. The IO has submitted the charge-sheet against
the accused for the offences punishable under Section
366A of IPC and Sections 4, 11, 12 of POCSO Act, 2012.
15. The trial Court has framed the charges against
the accused for the offences punishable under Section 366
of IPC and Section 5(m) read with Section 6 of POCSO Act
and Section 376-A and B of IPC. The trial Court has
acquitted the accused for the offence punishable under
Section 376 of IPC and Section 6 of POCSO Act. However,
the trial Court has convicted the accused for the offence
punishable under Section 366 of IPC and Section 10(m) of
POCSO Act. The State has not preferred any appeal
against the acquittal of Section 376 of IPC and Section 6 of
POCSO Act.
16. According to the case of the prosecution, PW1
and PW4 are the victims. PW1 has deposed that PW4 is
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her friend. She was playing with PW4 near her house.
About 2 years back she was playing along with PW4
outside her house. At that time the accused came there
and on the pretext of giving chocolate, took them to the
burial ground nearby, the accused removed his pant and
showed the part from where he passes urine and asked
them to lick it. Thereafter, accused removed both their
pants and bite her at the place from where she passes
urine. She felt pain and she screamed and asked him to
leave her. Later he himself took them and left them near
her house. She informed her mother that the accused has
bite her. Further she has deposed that she gave her
statement before the police. When the police came near
burial ground she showed them the place of offence and
police drew the mahazar Exhibit P2. Later she, her mother
along with the police went to the hospital. She narrated
the history before the doctor. Doctor examined her and
collected her pant MO.1 and her signature in the medical
report at Exhibit P3. Later she and her mother along with
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police went to the JMFC Court. She gave her statement
before the Magistrate.
17. PW2 Arifa Banu, the mother of the victim PW1
has deposed that about 3 years back, one day on
28.05.2018 her daughter and PW4 were playing near their
house. At that time, the accused, on the pretext of giving
chocolate, had taken both the children to the burial ground
at a little distance from their house. As the children were
not to be seen for a long time, they searched for them
everywhere. At that time, the accused left the children at
a little distance from their house and went away. Her
daughter was crying. On enquiry she informed her that the
accused on the pretext of giving chocolate had taken them
and had removed their pants and had bitten her
daughter's private part. She gave her statement before
the police as per Exhibit P4. Later police took her and PW1
to the hospital. Doctor examined PW1. Police came to the
burial ground and drew the mahazar Exhibit P2.
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18. PW3 Razia, the mother of the victim-PW4 has
deposed that about 2 years back her daughter PW4 was
playing near the house of PW1. She did not come home for
a long time. Therefore, she went near the house of PW1.
There was a galata taking place there. Her daughter was
also crying and the people who had gathered there for
assaulting the record. When she enquired, she was
informed that the accused has committed wrongful act.
That police took her daughter PW4, PW1 and the accused
to the police station. Even she along with PW2 also went
to the police station. At the police station she enquired
with PW1 and her daughter PW4. At that time, they
informed that accused removed his pant and asked them
to lick. Her daughter had not sustained any injuries.
However, PW4 had sustained bite marks. The children
further informed that accused had taken them to the burial
ground on the pretext of giving them to chocolate and had
removed their clothes and had tried to sleep on PW1. Her
daughter got scared and ran away from there. Later police
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took her for medical examination. The doctor examined
PW4 and she signed a medical report at Exhibit P5.
Thereafter, police took her and her daughter to JMFC
Court, Sira.
19. PW4 another victim has not supported the case
of the prosecution. She has not whispered anything
against this accused. This witness is treated as hostile
witness with the permission of Court and cross-examined
by the APP. During her cross-examination also, the
prosecution has not elicited any answers from her to
substantiate the case of the prosecution. ///
20. PW5 Smt Mubashir Banu and PW6 Sadiq Pasha
and PW8 Smt. Parvin Taj are said to be eye-witnesses.
They have not supported to the case of the prosecution.
All these witnesses treated as hostile witnesses with the
permission of the Court and, Special Public Prosecutor has
cross-examined them. During their cross-examination
also, they have categorically denied the statements said to
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have been recorded by the IO under Section 161 of Cr.P.C,
which are marked as Exhibit P7, P8 and P9.
21. PW7 Sri Akram, Ex.P2-spot mahazar witness,
has not supported the case of the prosecution.
22. PW9 Dr.Pavithra has deposed as to the
examination of the victim PW1 and also issuance of
medical report Exhibit P3.
23. PW10 Dr. Malini has deposed as to the
examination of PW4 and issuance of report Exhibit P5.
24. PW11 Smt. Farath Khanum is the hearsay
witness, has not supported the case of the prosecution.
25. PW12 Lakshmaiah, Police Inspector and PW13
Lakshminarayana, PSI have deposed as to their respective
investigation.
26. The alleged incident took place on 28.05.2018
at about 1.00 p.m and the complaint came to be filed on
30.05.2018 at 11:00 a.m. On the basis of the complaint
Exhibit P4, the Sub Inspector of Police, Sira Police Station
registered the case in Crime No.220/2018 and, submitted
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the FIR to the Court as per Exhibit P17 on 30.05.2018 at
04:55 p.m. In the FIR column No.3(c) it is stated that the
complainant has informed as to the incident to her
husband who was in Bengaluru and, on arrival of her
husband, she lodged a complaint after 2 days. The
husband of the complainant has not been examined by the
IO. PW2 has not whispered anything as to the delay in
filing the FIR. She has not deposed in her evidence that
only after the arrival of her husband she lodged a
complaint. Though the incident took place on 28.05.2018,
the victim has not examined by the Medical Officer. Exhibit
P3 is the Medico Legal Examination Report of Sexual
Violence pertaining to the victim PW1 reveals that date
and time of arrival in the hospital is 30.05.2018 brought
by WPC, Jyothi. The delay in producing the victim before
the Medical Officer has not explained by the prosecution.
The Investigating Officer has not produced the PW1 before
the Magistrate for recording statement under Section
164(5) of Cr.P.C.
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27. The Investigating Officer has not explained
anything for non-production of the victim PW1 before the
Magistrate to record her statement. Accordingly, the
Investigating Officer has failed to comply mandatory
provision of Section 25 of POCSO Act, 2012. Another
victim PW4 has not supported to the case of the
prosecution. The prosecution has not elicited any
favourable answer from PW4, even after treating her
hostile witness. The delay in filing the complaint, delay in
submitting the FIR to the Court, delay in examination of
the victim by the medical officer, non-production of
material victim PW1 before the Magistrate to record the
statement under Section 164(5) of Cr.P.C, as required
under Section 25 of POCSO Act and non-explanation by
the prosecution as to the aforesaid delay and also non-
compliance of mandatory provision of Section 25 of POCSO
Act, will create substantiate reasonable doubt as to the
alleged act of the accused. The sole interested testimony
of PW1 has not been substantiated by any other
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independent eye-witnesses. All the independent eye-
witnesses have not supported the case of the prosecution.
28. On careful examination of the entire evidence
on record, I do not find any cogent, clinching, convincing
legal evidence to convict the accused. However, the trial
Court has convicted the accused, which is not sustainable
under law. Hence, I answer point No.1 in the affirmative.
Regarding Point No.2:
29. For the aforestated reasons and discussions, I
proceed to pass the following:
ORDER
i. Appeal is allowed.
ii. The judgment of conviction and order on
sentence passed by the Addl. District and
Sessions Judge, FTSC-I, Tumakuru in Spl.C
No.384/2019 dated 05.11.2022 is set aside.
iii. The accused is acquitted for the offence
punishable under Section 10 read with Section
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9(m) of POCSO Act, 2012 and also Section
363 of IPC.
Registry is directed to send intimation to the
concerned Jail Authority to release the accused forthwith,
if he is not involved in any other cases.
All pending IAs stands disposed off.
Sd/-
(G BASAVARAJA)
JUDGE
KBM
List No.: 1 Sl No.: 21