SRI.NAVEEN vs STATE OF KARNATAKA

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU


TH
DATED THIS THE 13 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE G BASAVARAJA

CRIMINAL APPEAL NO. 623 OF 2015 (C)

BETWEEN:

1. SRI.NAVEEN
S/O RAJA,
AGED ABOUT 24 YEARS
R/AT VADDARAKOPPALU VILLAGE,
SHANTHIGRAMA HOBLI,
HASSAN TALUK,
HASSAN DISTRICT-34
…APPELLANT







(BY SRI. PRATHEEP K C., ADVOCATE)

AND:

1. STATE OF KARNATAKA
BY SHANTHIGRAMA POLICE STATION,
REP. BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARANTAKA
BANGALORE-01
…RESPONDENT




Digitally signed by
LAKSHMINARAYAN N
Location: High Court
of Karnataka

(BY SRI. K. NAGESHWARAPPA, HCGP)

CRL.A. FILED U/S.374(2) CR.P.C BY THE ADV. FOR THE
APPELLANT/ACCUSED PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO SET ASIDE THE JDUGMENT DATED
6.5.2015 PASSED BY THE III ADDL. DIST. AND S.J., HASSAN
IN S.C.NO.23/2013 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 366(A) AND 376 OF IPC.

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

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

ORAL JUDGMENT

The appellant has preferred this appeal against the
judgment of conviction and order on sentence passed by
the III Additional District and Sessions Judge, Hassan in
Sessions Case No.23/2013 dated 06.05.2015.

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

3. Brief facts leading to this appeal are that, the
Circle Inspector of Police, Hassan Rural Circle, submitted
the charge sheet against the accused for the offence under
Sections 366(A), 376 of IPC. It is alleged by the
prosecution that on 25.09.2012 at about 07:30 a.m. when
CW2/victim the minor daughter of CW1, was standing near
the Shanthigrama bus stop to go to college at Hassan,
accused promising to take her to Dharmasthala, forcibly
took her in a car bearing No.KA-18/A-495 to Belluru Palya,

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Belur Taluk and had a forcible sexual intercourse with her
in his friend's house. CW1 filed complaint before the police
as per Exhibit P5 and on the basis of the same CW22 ASI,
Shanthigrama Police Station, has registered the case in
Crime No. 185/2012. After completion of investigation the
Investigating Officer has submitted the charge-sheet
against the accused for the offence under Sections 366(A)
and 376 of IPC.


4. The accused appeared before the trial Court
and enlarged on bail. On hearing the charges trial Court
has framed the charges against the accused for the
alleged commission of offences. Same was read over and
explained to the accused. Having understood the same,
accused pleaded not guilty and claimed to be tried.


5. To prove the guilt of the accused, prosecution
has examined 17 witnesses as per PW1 to PW17, 18
documents were marked as Exhibits P1 to P18. On closure
of prosecution said evidence statement under Section 313

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Cr.P.C was recorded. The accused has denied the evidence
appearing against him, however has not chosen to lead
any defence evidence on his behalf.

6. Having heard the arguments on both sides trial
Court has convicted the accused for the offence under
Section 366(A) and 376 of IPC and passed the sentence to
undergo imprisonment for a period of 5 years and to pay
Rs.
fine of 4,000/- for the offence under Section 366(A).
Accused is also sentenced to undergo rigorous
imprisonment for a period of 7 years and to pay fine of
Rs.5,000/- for the offence punishable under Section 376 of
IPC. Being aggrieved by the judgment of conviction and
order on sentence, the appellant has preferred this appeal.

7. The learned counsel for the appellant would
submit that the judgment passed by the trial Court
convicting the appellant for the offence 366(A), 376 of IPC
is not sustainable either in law or on facts. Same is to be
set aside. The trial Court has completely failed in
appreciating the case of the appellant and on the wrong

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observation of facts and other circumstances, has
convicted the appellant for the said offences. Exhibit P11 is
the report regarding age of the victim that she was aged
more than 16 years and less than 17 years as on the date
of alleged incident. Therefore, as per Section of 375 IPC
alleged act stated to have been committed by the
appellant would not constitute rape in view of the
judgment of Uday v. State of Karnataka (2003(4) SCC
46). Even if the conclusive proof as to the age of the
victim was placed before the Court below, it did not
consider the same and held that the victim was minor and
she voluntarily accompanied the appellant and there was
consent for sexual intercourse.

8. The trial Court failed to take into consideration
the FSL report produced by the prosecution. As per that
report, the presence of spermatozoa and seminal stain
was not detected on the article seized at the instance of
the victim girl and appellant. Therefore, absence of
spermatozoa and seminal stain would absolutely negative

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the case of the prosecution. On that score itself appellant
is entitled for acquittal.

9. CW16-Dr.Vidyashree, in her cross-examination,
has categorically admitted that the report marked Exhibit
P12 is silent about the history of victim and opinion as to
the commission of offence not forthcoming and when she
questioned her about sexual intercourse prior to medical
examination she did not say anything about the same.
Therefore, it could be summarised at this juncture that if
at all she was raped by the appellant, she would have
definitely said about the incident to the doctor. The
evidence of victim girl suffers from a lot of contradiction
and omissions and she has given improvised version in the
evidence and are not stated before the police. Therefore,
the version of the victim would definitely not inspire the
confidence of the Court. Further it is submitted that as per
the evidence of the victim, after she got into the alleged
car, she did not scream for help and did not attempt to
stop the car, and further it is submitted that when she

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went to Halebeedu, she did not inform to visitors who
were around there and even did not inform to the police
and not attempted to call to her father and she did not go
to Belluru Palya, the place according to the prosecution
where the commission of offence took place. When she
has herself deposed to that effect that she did not go to
the place of commission of rape, the commission of
alleged offence is hardly believable. Therefore, she was
aware about the alleged incident. There was no
inducement on the part of the appellant. For the offence of
kidnap the conviction given is absolutely bad in law.
Further it is submitted that as per the evidence of the
victim, on the date of alleged incident, the appellant
dragged her on the floor and at the time, her Chudidar top
and bottom was also dragged on the floor. From the
reading of that evidence it could be gathered if she had
dragged with clothes, her clothes should have been torn
and soiled with mud but as per mahazar report, clothes of
the victim were not torn or soiled with mud. Nothing is

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forthcoming either in the FSL report as to the manner she
has narrated. Therefore, the commission of rape is hardly
believable. Further it is submitted that as per the case of
the prosecution, victim was raped in room belongs to
CW3. However, in the evidence, the said witness has
categorically stated that there was no room in the said
house and he turned hostile and has not supported the
case of the prosecution.

10. PW4 and PW5 who are the mahazar witnesses,
have not supported the case of the prosecution. CW10 is
the seizure mahazar witness, has also not supported the
case of the prosecution. The trial Court has failed to
appreciate the evidence on record in accordance with law
and facts.

11. To substantiate his arguments, he relied on the
decisions of the Hon'ble Apex Court in the case of Rajak
Mohammad v. State of Himachal Pradesh reported in
(2018) SCC 248 and on the decision of Co-ordinate Bench
of this Court in the case of Sri Marilinga @ Mariyappa in

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Criminal Appeal No.1559/2018 dated 03.02.2022 and
another decision in the case of Rajak Mohammad v. The
State of Himachal Pradesh reported in (2018) 9 SCC 248.
On all these grounds, sought for allowing this appeal.

12. As against this, learned HCGP Sri
K.Nageshwarappa would submit that the prosecution has
produced the transfer certificate which reveals the date of
birth of the victim and she was below 16 years as on the
date of commission of offence. The trial Court has properly
appreciated the evidence on record in accordance with law
and facts. Absolutely there are no grounds to interfere
with the impugned judgment of conviction and order on
sentence and sought for dismissal of the appeal.

13. Having heard the arguments on both sides and
perusal of materials placed before this Court, the following
points would arise for my consideration:
1. Whether the prosecution proves
beyond all reasonable doubt that the age of the

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victim was below 16 years as on the date of
commission of offence?
2. Whether the appellant has made out
grounds to interfere with the impugned
judgment of conviction and order on sentence?
3. What order?
Regarding Point No.1:

14. I have examined the materials placed before
this Court. This case arise out of the complaint filed by one
Srinivas PW2 father of the victim, in which it is stated as
under:
¸Áé«Ä,
K£ÉAzÀgÉ, ±Á¯ÉUÉ ºÉÆÃzÀ £À£Àß ªÀÄUÀ¼ÀÄ EzÀĪÀgÉUÀÆ ªÀÄ£ÉUÉ ¨ÁgÀzÉ PÁuÉAiÀiÁVgÀĪÀ
§UÉÎ.
£À£Àß ªÀÄUÀ¼ÀÄ ¢ªÀå JA§ 16 ªÀµÀðzÀ AiÀÄĪÀw ¥ÀæxÀªÀÄ ¦.AiÀÄÄ.¹ AiÀÄ£ÀÄß ºÁ¸À£ÀzÀ
J«PÉ PÁ¯ÉÃdÄ£À°è ªÁå¸ÁAUÀ ªÀiÁqÀÄwÛzÀÄÝ, ¥Àæw¢£À §¹ì£À°è ºÁ¸À£ÀPÉÌ ºÉÆÃV §gÀÄvÁÛ¼É.
¢£ÁAPÀ 25/9/12 gÀAzÀÄ JA¢£ÀAvÉ ¨É¼ÉUÉÎ 7.30 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è PÁ¯ÉÃfUÉ ºÉÆÃV
§gÀÄvÉÛ£ÉAzÀÄ ±ÁAwUÁæªÀÄzÀ°è £Á£ÀÄ ªÁ¸À ªÀiÁqÀĪÀ ¨ÁrUÉ ªÀģɬÄAzÀ ºÉÆÃzÀªÀ¼ÀÄ
EzÀĪÀgÉUÀÆ §A¢gÀĪÀÅ¢®è. §gÀ§ºÀÄzÉAzÀÄ PÁzÀÄ ¨ÁgÀzÉ EzÀÄÝzÀjAzÀ F ¢ªÀ¸À
¢£ÁAPÀ 26/09/2012 gÀAzÀÄ oÁuÉUÉ §AzÀÄ zÀÆgÀÄ PÉÆnÖgÀÄvÉÛãÉ. F ¢£À PÁ¯ÉÃfUÉ
ºÉÆÃV «ZÁgÀuÉ ªÀiÁqÀ¯ÁVzÉ. ªÀÄÆgÀÄ ¢ªÀ¸À PÁ¯ÉÃfUÉ ºÉÆÃV®èªÉAzÀÄ
w½zÀħA¢gÀÄvÀÛzÉ. ªÀqÀØgÀ PÉÆ¥Àà®Ä ªÁ¹ £À«Ã£À JA§ DvÀ MAzÀÄ PÁgÀ£ÀÄß ¸ÀévÀ:

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ªÁVnÖPÉÆAqÀÄ fêÀ£À ªÀiÁqÀÄwÛzÀÄÝ DvÀ£ÀÄ PÀÆqÀ Hj£À°è EgÀĪÀÅ¢®è. DvÀ£À eÉÆvÉAiÀÄ°è
ºÉÆÃVgÀ§ºÀÄzÀÄ.
£À£Àß ªÀÄUÀ¼ÀÄ PÁ¯ÉÃfUÉ ºÉÆÃUÀĪÁUÀ
1. PÉA¥ÀÄ ZÀÆrzÁgÀ zÀj¹zÀݼÀÄ.
2. PÉÆÃ®Ä ªÀÄÄR
3. 16 ªÀµÀðUÀs¼ÀÄ
4. PÀ£ÀßqÀ ªÀÄvÀÄÛ vÉ®ÄUÀÄ ªÀiÁvÀ£ÁqÀÄvÁÛ¼É.
S.S.L.C.
5. ¥Á¸ï DVgÀÄvÁÛ¼É.
PÁuÉAiÀiÁVgÀĪÀ £À£Àß ªÀÄUÀ¼À£ÀÄß ¥ÀvÉÛ ªÀiÁrPÉÆqÀ¨ÉÃPÁV PÉýPÉƼÀÄîvÉÛãÉ.

15. On the basis of this complaint, Shanthigrama
Police registered the case in Crime No.182/2012 as
missing complaint as per Ex.P14. This FIR has been not
submitted to the Court. In Exhibit P1, the age of the victim
is shown as 16 years and she was studying in first year
PUC and the complainant Srinivasa examined as PW2.
PW2 has also deposed in his evidence that the age of the
victim was 16 years. In the evidence of PW1, she has
stated that her age is 17 years. The prosecution has
produced Exhibit P4, the copy of this transfer certificate
issued by Senior Assistant Teacher, Government Junior
College, Shanthigrama, which reveals that the date of

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birth of the victim as 18.02.1997. To substantiate this,
PW10 is has deposed that he has issued this transfer
certificate at the request of the police.

16. PW12-Dr.Vidyasree, has deposed in her
evidence that the age of the victim was 16 years. She has
also deposed as to issuance of Ex.P12. PW8
Dr.K.T.Shivakumar has deposed as to the examination of
the victim and also issuance of certificate Ex.P11. In
Exhibit P11, he has clearly stated that by X-ray
examination, the age of the girl is more than 16 years,
and less than 17 years. This certificate is not disputed by
the prosecution. The Investigating Officer has not
whispered anything contrary to the contents of Exhibit
P11. The Investigating Officer has not produced the birth
certificate or SSLC Marks Card of the victim, though the
victim has passed SSLC. In the absence of production of
birth certificate or school certificate, the admission register
extract and SSLC Marks Card, Exhibit P4-transfer
certificate, is not sufficient to come to the conclusion that

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the date of birth of the victim was 18.02.1997. The
Investigating Officer has failed to comply with the
mandatory provisions of Section 94 of the Juvenile Justice
(Care and Protection) Act, 2015. The evidence placed
before this Court by the prosecution itself reveals that the
victim was above 16 years as on the date of commission
of offence. The alleged incident took place on 25.09.2012.
Prior to the amendment, Section 375 of the Indian Penal
Code contemplate, a man is said to commit "rape" who,
except in case, has sexual intercourse with a woman under
circumstances following under any of the descriptions out
of six descriptions the said Section, with or without her
consent, when the age of the victim is under 16 years. The
evidence placed before this Court by the prosecution itself
reveals that the victim was more than 16 years as on the
date of commission of offence, i.e. on 25.09.2012. Hence
the prosecution has failed to prove that the age of the
victim was 16 years as on the date of commission of
offence. Accordingly, I answer Point No.1 in the Negative .

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Regarding Point No.2:

17. With regard to the offence under Section
366(A) is concerned. The prosecution has not placed the
essential ingredients to constitute the offence under said
Section. The alleged incident took place on 25.09.2012.
The Medical Officer PW12-Dr.Vidyasree examined the
victim on 29.09.2012, after lapse of 4 days from the date
of commission of offence. The prosecution has not
explained anything as to the delay of 4 days in
examination of the victim. The Medical Officer PW12 has
not complied with the mandatory provisions of Section
164A of Cr.P.C, 1973. It is to be mentioned here as to the
provisions of Section 164A of Code of Criminal Procedure,
which reads as under:
"164A. Medical examination of the victim of
rape:-
(1) Where, during the stage when an offence of
committing rape or attempt to commit rape is under
investigation, it is proposed to get the person of the

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woman with whom rape is alleged or attempted to
have been committed or attempted, examined by a
medical expert, such examination shall be conducted
by a registered medical practitioner employed in a
hospital run by the Government or a local authority
and in the absence of such a practitioner, by any
other registered medical practitioner, with the
consent of such woman or of a person competent to
give such consent on her behalf and such woman
shall be sent to such registered medical practitioner
within twenty-four hours from the time of receiving
the information relating to the commission of such
offence.
(2) The registered medical practitioner, to whom
such woman is sent shall, without delay, examine her
person and prepare a report of his examination
giving the following particulars, namely—
1. the name and address of the woman and of the
person by whom she was brought;
2. the age of the woman;
3. the description of material taken from the person of
the woman for DNA profiling;
4. marks of injury, if any, on the person of the woman;

5. general mental condition of the woman; and
6. other material particulars in reasonable detail,

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(3) The report shall state precisely the reasons for
each conclusion arrived at.
(4) The report shall specifically record that the
consent of the woman or of the person competent, to
give such consent on her behalf to such examination
had been obtained.
(5) The exact time of commencement and
completion of the examination shall also be noted in
the report.
(6) The registered medical practitioner shall,
without delay forward the report to the investigating
officer who shall forward it to the Magistrate referred
to in section 173 as part of the documents referred
to in clause (a) of Sub-Section (5) of that section.
(7) Nothing in this section shall be construed as
rendering lawful any examination without the
consent of the woman or of any person competent to
give such consent on her behalf.
Explanation:- For the purpose of this section
"examination: and "registered medical practitioner"
shall have the same meanings as in Section 53."

18. PW12 has not explained anything as to the non-
compliance of mandatory provisions of Section 164A of
Code of Criminal Procedure. PW12 has clearly admitted in

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her evidence that she has not taken the history of alleged
incident by the victim or her parents. Exhibit P12 also
reveals that PW12 has not noted the history the column as
to the history is left blank. The FSL report, Exhibit P18
reveals that the scientific Officer,
Dr. Chaitanya Kumar has opined that presence of seminal
stain was not detected in Item Nos.1 to 4, presence of
Spermatozoa was not detected in Item No.5.

19. On careful examination of the entire evidence
on record, I do not find any cogent, convincing,
trustworthy legal evidence to convict the accused for the
offence under Section 376 IPC. Accordingly, I answer Point
No.2 in the Affirmative.
Regarding Point No.3:
For the aforestated reasons and discussions, I
proceed to pass the following:
ORDER
i. Appeal is allowed.

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ii. The judgment of conviction and order on
sentence passed by the III Additional District and
Sessions Judge, Hassan in Sessions Case
No.23/2013 dated 06.05.2015, is set aside.
iii. Accused is acquitted of the offence under
Section 366(A) and 376 of IPC.
iv. The bail bond of the appellant shall stand
cancelled.
v. The trial Court is directed to refund the fine
amount, if any, deposited by the
accused/appellant.
Registry is directed to send the copy of this judgment
along with TCR to the trial Court.


Sd/-
(G BASAVARAJA)
JUDGE


KBM
List No.: 1 Sl No.: 39