Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE H.P.SANDESH AND THE HON'BLE MR. JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.1249 OF 2018 C/W CRIMINAL APPEAL NO.420 OF 2018 IN CRL.A NO.1249/2018: BETWEEN:
1. THE STATE BY DEPUTY SUPERINTENDENT OF POLICE, MADIKERI SUB-DIVISION, REPRESENTED BY STATE PUBLIC PROSECUTOR, BENGALURU-560001. …APPELLANT Digitally signed by DEVIKA M (BY SMT. RASHMI PATEL, HCGP) Location: HIGH COURT OF KARNATAKA AND:
1. SRI. B.S.LATHISH @ DEVIKUMAR,
S/O CHANDRA, AGED ABOUT 24 YEARS, COOLIE, R/O PALEMADU PAISARY, HODDUR VILLAGE, MURNAD POST, MADIKERI TALUK-571201. …RESPONDENT (BY SRI. D.P.PRASANNA, ADVOCATE) -2- THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
OF CR.P.C PRAYING TO MODIFY THE JUDGMENT AND ORDER
DATED 20.02.2018 AND 23.02.2018 PASSED IN SPL.C.(POCSO) NO.7/2016 ON THE FILE OF PRINCIPAL SESSIONS AND SPECIAL JUDGE, KODAGU - MADIKERI, INSOFAR AS IT RELATES TO IMPOSING INADEQUATE SENTENCE AGAINST THE ACCUSED/RESPONDENT HEREIN FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(2)(h) AND
(n) R/W 511 OF IPC AND SECTION 6 OF POCSO ACT AND ENHANCE THE SENTENCE BY IMPOSING MAXIMUM SENTENCE. IN CRL.A NO.420/2018: BETWEEN:
1. B.S. LATHISH @ DEVIKUMAR,
S/O CHANDRA, AGED ABOUT 22 YEARS, COOLIE, R/O PALEMADU PAISARY HODDUR VILLAGE, MURNAD POST, MADIKERI TALUK, KODAGU DISTRICT-571201. ...APPELLANT (BY SRI. PRASANNA D.P., ADVOCATE) AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY DY.S.P., MADIKERI SUB-DIVISION, MADIKERI, KODAGU-571201, (REPRESENTED BY LEARNED SPP). ...RESPONDENT (BY SMT. RASHMI PATEL, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 20.02.2018 AND SENTENCE
DATED 23.02.2018 PASSED BY THE PRINCIPAL SESSIONS -3- AND SPECIAL JUDGE, KODAGU AT MADIKERI IN SPL.C.(POCSO).NO.7/2016 CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(2)(h)(n) OF IPC AND SECTION 6 OF POCSO ACT, 2012 R/W 511 OF IPC. THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and
HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH) Heard the learned High Court Government Pleader
appearing for the State and the learned counsel for the appellant/accused. Crl.A.No.1249/2018 is filed by the State challenging the judgment of conviction and sentence, insofar it relates to imposing inadequate sentence against the accused for the offences punishable under Sections 376(2)(h) and (n) read with Section 511 of IPC and Section 6 of the Protection of Children from Sexual Offences Act (‘POCSO Act’ for short). The
accused has challenged the judgment of conviction and sentence in Crl.A.No.420/2018.
2. The factual matrix of the case of the prosecution before the Trial Court is that P.W.1 victim is a minor girl aged -4-
about 17 years and the accused was frequently visiting her and had sexual intercourse with P.W.1 against her will by giving false assurance of marriage and ultimately, she became pregnant and gave birth to a child on 14.12.2015. It is also the case of the prosecution that the accused cheated her by committing aggravated penetrative sexual assault on her. Based on the complaint of P.W.1, police investigated the matter and filed the charge-sheet and the case is registered as Special Case (POCSO) No.7/2016. The prosecution in order to prove the case against the accused, relied upon the evidence of P.W.1 to P.W.16 and the documents at Exs.P.1 to 16. The accused was subjected to 313 statement and the accused did not choose to lead any evidence. The Trial Court having considered the material available on record, comes to the conclusion that the prosecution has proved the case against the accused for the offences punishable under Section 376(2)(h) and (n) read with Section 511 of IPC and partly proved in respect of Section 6 of POCSO Act and comes to the conclusion that an attempt was made by the accused to commit rape on P.W.1.
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3. The said order is challenged before this Court by both the State as well as the accused.
4. The main contention of the learned High Court
Government Pleader appearing for the State is that the Trial Court committed an error and proceeded in an erroneous approach. When P.W.1 evidence is consistent that the accused only subjected her for sexual act and as a result, she became pregnant and delivered the baby, the Trial Court committed an error in invoking Section 376 read with Section 511 of IPC and so also in respect of Section 6 of POCSO Act and the very approach of the Trial Court is erroneous and the accused ought to have been convicted for the offences invoked against him.
5. Per contra, the learned counsel appearing for the
accused would vehemently contend that the accused is in no way connected to the pregnancy of P.W.1 and he was not having any touch with P.W.1 and he is not responsible for the pregnancy of P.W.1. The learned counsel also would submit that when the allegation was made against the accused, the Investigating Officer ought to have drawn the blood sample of the accused, victim and also the child to know whether the
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accused is the biological father of the child or not. It is the contention of the accused that P.W.1 was having relationship with one Mahesha, who is a married person and she became pregnant. After the completion of the evidence of P.W.1, the accused only made an application for drawing of blood and after drawing of the blood, the DNA report was negative and hence, the learned counsel would contend that the very defence of the accused is probable and the Trial Court failed to consider the same and invoked the offence under Section 376 read with Section 511 of IPC and so also Section 6 of POCSO Act. The learned counsel would submit that it is not the case of P.W.1 that the accused made an attempt to commit rape on her and the very approach of the Trial Court is erroneous.
6. Having heard the learned High Court Government
Pleader appearing for the State and the learned counsel for the accused and having given our anxious consideration to the evidence available on record and on meticulous evaluation of the evidence available on record, the points that would arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in acquitting the accused for the charges levelled -7-
against him for the offence punishable under Sections 420 and 376 of IPC and Sections 5(1) and 6 of POCSO Act and ought to have convicted the accused for the above offences instead of the conviction and sentence for the offences, which have been invoked by the Trial Court?
(ii) Whether the Trial Court committed an error in convicting the accused based on the evidence of P.W.1 and whether it requires interference of this Court?
(iii) What order? Point Nos.(i) and (ii):
7. Having heard the respective learned counsel and
also considering the case of the prosecution, which has been discussed above, the Court has to reconsider the evidence available on record. P.W.1 in her evidence reiterated the allegations made in the charge-sheet. The prosecution mainly relies upon the evidence of P.W.1 contending that her evidence is consistent. P.W.1 in her evidence says that she knows the accused and house of the accused is situated in the same area after leaving two lanes. The accused also used to go to coolie
-8- work like her and they became familiar with each other. The accused used to say that he was loving her and assured to marry her and at that time, she told the accused to inform the same to her parents. He was frequently visiting her house 3 times in a week when her parents and her sister were out of
the house. When the accused was committing sexual intercourse with her during April 2014, she had given consent. But again she says that it was not with the consent, since she was not major. The accused used to commit rape on her frequently and as a result, she became pregnant and gave birth to a child on 04.12.2015. She gave complaint to the police in terms of Ex.P.1 and the police drawn the mahazar in terms of Ex.P.2, photographs are marked as per Ex.P.3 and statement given by her is marked as Ex.P.4. This witness was subjected to cross-examination.
8. In the cross-examination, she says that she told
before the doctor that she became pregnant due to rape by the accused. She did not take any document from doctor to that effect. It is admitted that the doctor instructed her to undergo DNA test after the baby is aged about 4 to 6 months. At -9-
present, the baby is 7 months and herself and her baby did not undergo the DNA test as per the instructions of the doctor. It is suggested that the accused is not the biological father of the child and if she goes for DNA test, the biological father of the child will be identified and the same is denied. It is suggested that she did not say against the said Mahesha that he committed rape on her with an intention not to disturb the family relationship of Mahesha and Smt. Bhavya and the said suggestion was denied. It is suggested that she was pregnant due to her illegal relationship with Mahesha and the same was denied. It is suggested that false allegation is made in Ex.P.1 colluding with the police and the same was denied. However, she says that she do not know the contents of Ex.P.1.
9. Having considered the evidence of P.W.1, she says that the accused is responsible for her pregnancy. She even claims that she has informed before the doctor that the accused
is responsible for her pregnancy. But on perusal of the evidence of the doctor, who has been examined as P.W.8, she only says that the victim came to her for delivery and did not disclose anything about the act of the accused and she gave - 10 - the report. The doctor's evidence is very clear that she has
advised to go for DNA test after 4 to 6 months. But the admission of P.W.1 is clear that even after 4 to 6 months also, she did not go for the DNA test of herself or the child. The learned counsel for the accused would submit that after the cross-examination of P.W.1, they only filed an application for drawing of blood. On the application filed by the accused only blood of the child, accused as well as victim was drawn and the result of the DNA is negative and hence, there is a substance in the contention of the learned counsel for the accused that the accused took the specific defence that he was not the biological father of the child. Even when the doctor had suggested to go for DNA test, P.W.1 did not subject herself and the child for DNA test. The Court has to take note of the conduct of P.W.1 and the same disentitles to rely upon the evidence of P.W.1. If really the accused is the biological father of the child, ought to have made the statement before the medical officer. When the doctor had suggested to go for DNA test, ought to have subjected for DNA test and the same is not done. Only at the instance of the accused only, it was done.
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10. P.W.2 and P.W.3 are the parents of P.W.1 and they
say that they came to know about the pregnancy only after the delivery of the child. Even when P.W.1 claims that the accused was visiting her thrice in a week, the same is not spoken by P.W.2 and P.W.3. P.W.4 and P.W.5 are the neighbouring witnesses and they have not supported the case of the
prosecution. P.W.6 also not supported the case of the prosecution i.e., spot mahazar witness. P.W.7 only deposes with regard to the date of birth of P.W.1 is concerned that certificate is issued based on the entry in the admission register. No doubt, P.W.7 says that the date of birth of P.W.1 is 19.03.1998 and having considered the same, she is a minor. In
order to accept the case of P.W.1, her evidence does not inspire
the confidence of the Court and if really the accused is the biological father of the child, she would have made the statement before the doctor that he is responsible for her pregnancy, but the same is not stated and she tried to even suppress the same before the doctor also. Having taken note of all these materials available on record and also the reasoning
of the Trial Court, the Trial Court comes to the conclusion
based on the evidence of P.W.1. The Trial Court committed an - 12 - error in sentencing the accused for 3½ years for the offences under Section 376 read with Section 511 of IPC and Section 6 of the POCSO Act.
11. The evidence of P.W.1 is that the accused
committed the sexual act on her. But the Trial Court comes to the conclusion invoking Section 511 of IPC that it was an attempt to rape and the very approach of the Trial Court is erroneous. The Trial Judge has committed an error in considering the evidence in a proper perspective and the very approach of the Trial Court is erroneous in convicting and
sentencing the accused. The evidence of P.W.1 is not trustworthy and the Court has to take note of the conduct of P.W.1 in not subjecting herself for DNA test and only subjected for DNA test at the instance of the accused. All these factors were not considered by the Trial Court and hence, we are not satisfied with the reasoning of the Trial Court and the evidence adduced by the prosecution is not sufficient to come to a
conclusion that the accused only is the biological father of the
child and he only subjected P.W.1 for sexual act. Throughout the accused denied that he is the biological father of the child - 13 -
and accused was very sure that he is not the father and also made an application before the Trial Court for the DNA test and DNA test also goes against the victim. When such being the case, we are of the opinion that the Trial Court committed an error in convicting and sentencing the accused and the very contention of the counsel appearing for the State that the Trial Court also committed an error in coming to the conclusion that it was an attempt to rape cannot be accepted. Hence, the appeal filed by the State requires to be dismissed and the appeal filed by the accused requires to be allowed in setting aside the order of conviction and sentence and hence we answer the points accordingly.
Point No.(iii):
12. In view of the discussions made above, we pass the following:
ORDER
(i) Crl.A.No.1249/2018 filed by the State is dismissed.
(ii) Crl.A.No.420/2018 filed by the accused is allowed. - 14 -
(iii) The judgment of conviction dated 20.02.2018 and order of sentence dated 23.02.2018 in Special Case (POCSO) No.7/2016 passed by the Principal Sessions and Special Judge, Kodagu, Madikeri, is set aside.
(iv) If any bond is executed by the accused, the same stands cancelled. Sd/- (H.P.SANDESH) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MD List No.: 1 Sl No.: 14