As per case facts, the accused allegedly followed and threatened the victim, then trespassed into her house on one occasion and committed rape. Later, he threatened and kidnapped her from ...
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CRL.A No. 200044 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27
TH
DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL APPEAL NO.200044 OF 2019
(374(Cr.PC)/415(BNSS))
BETWEEN:
AMEEN @ AMEENSAB S/O RAZAKSAB,
AGE: 20 YEARS, OCC: DRIVER,
R/O SUMBAD VILLAGE, TQ.JEWARGI,
DIST. KALABURAGI-585 325.
…APPELLANT
(BY SRI. SHIVASHARANA REDDY, ADVOCATE FOR
SRI. USTAD ZAKIR HUSSAIN, ADVOCATE)
AND
1 . THE STATE THROUGH
YADRAMI POLICE STATION,
TQ. JEWARGI, NOW TQ. YADRAMI,
DIST. KALABURAGI-585 103
REPT. BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
2. LALITA W/O GUNDAPPA,
AGED ABOUT 48 YEARS,
OCC: HOUSEHOLD,
R/O SUMBAD VILLAGE, TQ. YADRAMI,
DIST. KALABURAGI-585 325.
…RESPONDENTS
(BY SRI. SIDDALING P. PATIL, ADDL. SPP FOR R1;
V/O DATED 23.03.2026 R2 IS DEAD)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO ALLOW THIS CRIMINAL APPEAL, SET ASIDE
THE JUDGMENT DATED 18.01.2019 PASSED BY THE II ADDITI ONAL
SESSIONS JUDGEB AT KALABURAGI IN SPL. CASE (POCSO)
NO.19/2018 CONVICTING AND SENTENCING THE APPELLANT AN D
ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 23.03.2026, COMING ON FOR PRONOUNCE MENT
THIS DAY, DR. CHILLAKUR SUMALATH J, DELIVERED THE
FOLLOWING:
CORAM:
HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
and
HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
CAV JUDGMENT
(PER: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA)
Assailing with the judgment that is rendered by th e
Court of II Additional Sessions Judge, Kalaburagi in Special
Case (POCSO) No.19/2018 dated 18.01.2019, accused
therein preferred this appeal.
2. Appellant (hereinafter be referred to as ‘accused’
for the sake of convenience of discussion) having found
guilty of the offences punishable under Sections 450, 366-
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A, 376(2)(i) & (n) and 506 of Indian Penal Code
(hereinafter be referred to as ‘IPC’ for brevity) and also
under Section 6 of Protection of Children from Sexual
Offences Act, 2012 (hereinafter be referred to as ‘POCSO
Act’ for brevity), was sentenced to undergo rigorous
imprisonment for life and to pay fine of Rs.1,00,000/- for
the offence punishable under Sections 376(2)(i) & (n) of
IPC and Section 6 of POSCO Act. He was sentenced to
undergo rigorous imprisonment for ten years and to pay
fine of Rs.1,00,000/- for the offence punishable under
Section 450 of IPC. He was further sentenced to und ergo
rigorous imprisonment for ten years and to pay fine of
Rs.1,00,000/- for the offence punishable under Section
366-A of IPC. Also, he was sentenced to undergo rigorous
imprisonment for two years and to pay fine of Rs.25,000/-
for the offence punishable under Section 506 of IPC.
3. Heard Sri Shivasharana Reddy, who represented
Sri Ustad Zakir Hussain, learned counsel on record for the
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appellant as well as Sri Siddaling P. Patil, learned
Additional Special Public Prosecutor.
4. The case of the prosecution if narrated in a
narrower compass is that, the accused was following the
victim girl expressing that he is in love with her. He was
frequently meeting the victim girl and was threatening
her. On 11.02.2018 at 12.00 noon when the victim was
alone at her house, accused trespassed into the house,
pushed her down and committed rape. On 25.02.2018
accused asked the victim to come out of the school. On
26.02.2018 when the victim came out of the school in
which she was studying, accused asked her to accomp any
him to Bangalore and when she refused, he threatened
her, took her to Bangalore by bus, from there to Kolar and
from Kolar to Ajapanalli where he kept her in a room for
two days and committed rape.
5. Five charges were framed against the accused.
Firstly, that he trespassed into the house of the victim with
an intention to commit rape and thereby committed s uch
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offence and thus has committed an offence punishable
under Section 450 of IPC. Secondly, that he kidnapped the
victim by taking her out of the lawful guardianship of her
parents with an intent to compel her or knowing it to be
likely that she will be forced or compelled to love him and
that she was forced or seduced to illicit intercourse and
thereby committed an offence punishable under Section
366 of IPC. Thirdly, that he repeatedly committed rape on
the victim girl and thereby committed an offence
punishable under Section 376(2)(i) and (n) of IPC.
Fourthly, that he committed an act of criminal intimidation
punishable under Section 506 of IPC. Fifthly, that he
committed the offence of aggravated penetrative sexual
assault as defined under Section 5(1) of POCSO Act and
thereby committed an offence punishable under Secti on 6
of the said Act.
6. Prosecution in order to establish the guilt of the
accused examined as many as 19 witnesses, produced 30
documents and 09 material objects.
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7. Arguing on merits of the matter, learned counse l
for the appellant submitted that appellant has not
committed any offences whatsoever. Prosecution
miserably failed to establish the age of alleged victim as
on the date of alleged incident. Medical evidence does not
favour the case of prosecution. No material is on record to
show that the alleged victim girl was subjected to sexual
assault by the accused. Also prosecution failed to establish
that said girl was a minor by the date of alleged incident.
There are many lacunae in the case of the prosecution and
prosecution failed to connect the accused with the crime in
question. Without analyzing the evidence brought on
record properly, only because case is registered against
the accused that he committed the offence of rape as well
as penetrative sexual assault which are heinous offences,
Trial Court passed the judgment of conviction. Learned
counsel further submitted that the so called victim girl
subsequently got married and beget three children.
Accused is in jail since the date of conviction. The
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judgment of conviction is nothing but a moral conviction.
Learned counsel thereby sought to allow the appeal.
8. On the other hand, learned Additional Special
Public Prosecutor submitted that the prosecution emerged
successful in establishing the guilt of the accused beyond
all reasonable doubt. Though there are minor deficiencies
in the case of prosecution and discrepancies in the
evidence of witnesses, they will not come in the way, as
the other evidence clearly establishes the guilt of the
accused beyond all reasonable doubt.
9. Case of the prosecution is that two different
incidents occurred which resulted in commission of
different offences against the victim girl by the accused.
First incident is the one where accused entered into the
house of victim girl while she was alone and committed
rape. Second incident is the one where accused kidnapped
the victim girl by threatening her, took her to Bangalore,
from Bangalore to Kolar and from Kolar to Ajapanalli
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village where he kept her for two days and committed
rape.
10. For the sake of proper appreciation of evidence
and coming to a conclusion with regard to merits in
prosecution version, discussion on each incident is made
separately.
11. The evidence of PW.1/victim is that she was
studying 9
th
standard at Gnyana Bharathi School, Yadrami.
She was going to school in a school van. House of the
accused is situated two houses after her house. Since six
months from the date of incident, accused was meeting
her and was talking to her when she was going to canal to
wash clothes. He asked her to accompany him to
Bangalore for which she refused. 15 to 20 days prior to
the date of incident (date of incident being 26.02.2018)
accused entered into her house at 12.00 noon when she
was alone, pushed her down and committed rape despi te
her resistance. Accused threatened her and asked he r not
to disclose the matter to anybody and therefore she did
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not disclose that fact to anyone. To strengthen and
corroborate the testimony of PW.1 in respect of this
incident, prosecution produced the evidence of PW.6. The
evidence of PW.6 is that his house is situated about 4 to 5
houses away from the house of PW.1. About 4 to 5 mo nths
back at about 3.00 or 4.00 p.m. he saw the accused going
inside the house of victim. 4 to 5 days later he came to
know that accused took away the victim.
12. When PW.1 stated that accused entered into her
house and committed rape 15 to 20 days before the
incident, the evidence of PW.6 is that the said incident
occurred 4 to 5 days prior to the date of the actual
incident. Also when the version of PW.1 as per her
evidence is that accused entered into her house at 12.00
noon, the evidence of PW.6 is that he saw the accused
entering into the house of PW.1 at about 3.00 or 4.00 p.m.
That apart, PW.6 during the course of cross-examination
admitted that he goes to work at 10.00 a.m. and come
back at 5.00 p.m. PW.6 nowhere stated that he did not
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attend work on the said day and thereby he could no tice
accused entering into the house of PW.1. Nowhere PW.1
stated that she raised cries when the accused attacked
her. At which place of the house, she was pushed down
and rape was committed is not stated in clear terms. If
such act was committed by the accused upon PW.1 eit her
on cot, on sofa or anything of that sort, there will be some
change in the position of either bedspread, pillows or mats
whatsoever. If it was done on floor, there might have been
presence of certain marks. It is not the case of the
prosecution or the evidence of PW.1 that soon after the
incident, accused had set right all the things and took care
to erase any marks of violence. Admittedly, there is no
evidence to show that the inmates of the house obse rved
or suspected happening of anything of that sort.
Therefore, it is to be concluded that such a thing might not
have happened at all or if it has happened, PW.1 he rself
might have set the things right so that the inmates of the
house will not come to know about happening of such an
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incident. Even if PW.1 had done thus, it does not mean
that accused should be set free and left without
punishment. However, it is for the prosecution to establish
beyond all reasonable doubt that such a thing happe ned.
Without prima facie proof of happening of the incident of
that sort, presumption cannot be drawn so as to con nect
the accused with the crime.
13. The evidence of PW.1 is that the accused
threatened her and asked her not to disclose the incident
to anybody. Therefore, she did not disclose. It is not her
version or the version of her father i.e., PW.2 that she was
not communicating to anybody nor going to school from
the date of such incident. Therefore, it has to be inferred
that her behaviour was normal. Hence, it cannot be
presumed that due to threat of the accused, she has not
disclosed about the assault committed on her body by the
accused to anybody including her parents.
14. Coming to the subsequent events i.e., kidnappi ng
from the school, taking the victim to different places and
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committing the act of penetrative sexual assault, as per
the evidence of PW.1, on 25.02.2018 accused asked h er to
come out of the school to go to Bangalore. On 26.02.2018
at 11.30 a.m. somebody informed her that one of her
relatives died at Nilkod village and therefore she went out
of the school after giving information to one Prabhu sir
(PW.5). When she was near the gate, accused approac hed
her and asked her to come along with him to Bangalore
and when she refused, he threatened to throttle her neck
and kill her. Accused took her to Jewargi Bus stand in a
bus. From there he took her to Bangalore and then to
Kolar. From Kolar he took her to Ajapanahalli village to a
room situated above a garage. He kept her in that r oom
for two days and committed rape three times. From t here
he took her to Bangalore Bus stand. Don Bosco people
came there and took them to their institution. She stayed
at Don Bosco institution for one day and thereafter her
father and Yadrami police brought her and the accused to
Yadrami Police Station.
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15. Thus, as per the evidence of PW.1, when she wa s
informed by somebody that one of her relatives died, she
gave that information to PW.5, came out of the school and
while she was near the gate, accused approached her and
forcibly took her away. PW.1 during the course of cross-
examination stated that she did not scream or cry when
the accused took her from the gate. The evidence of PW.5
is that he is working as teacher in Gnana Bharathi Primary
and High School and during the year 2017-2018 PW.1 was
studying 9
th
standard and he was the class teacher of 9
th
standard students. On 26.02.2018 at 12.15 the bell rang
after the interval and at that time the victim went back
home stating that some of her relative died. The victim
went outside the compound crying. He tried to contact the
father of the victim but he was not reachable for one hour.
The evidence of PW.2 who is the father of PW.1 is that his
daughter went to school on that day and at 12.00 noon,
PW.5 telephoned and informed that somebody took his
daughter stating that one of their relatives died.
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16. As per the evidence of PW.1, on 25.02.2018
accused asked her to come out of the school to go to
Bangalore. On the very next day on 26.02.2018 she c ame
out of the school informing PW.5 that one of her relatives
died. As per the evidence of PW.1, somebody came and
informed that one of her relatives died. Who is that
‘somebody’ is not stated anywhere. Even other material
witnesses failed to disclose the particulars of that person.
PW.1 during the course of cross-examination stated that
she wears uniform to the school, but on the date of
incident she was in colour dress. PW.5 during the course
of cross- examination clearly stated that the victim was
not in uniform. He further stated that except the victim
other students were in uniform. For what reason she was
not in uniform on the said day and was in colour dress is
not clarified. The evidence of PW.4 is that on the date of
incident at 11.35 a.m. he noticed accused and PW.1
standing and talking together in front of Yadrami school. If
at all PW.1 was threatened of throttling her neck if she
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does not accompany him, she would have raised cries and
would have drawn the attention of PW.4 who was pass ing
on road at that time and who is known to her. But nothing
of that sort happened. All these facts and circumstances
goes to show that the accused and PW.1 hatched a plan
together and executing that plan, PW.1 left the school,
accompanied the accused and they travelled together.
Undoubtedly, taking a minor from lawful guardianship is
an offence. But in the case on hand the evidence produced
by the prosecution itself goes to show that it is PW.1 who
voluntarily left the school and accompanied the accused.
No element of coercion, false promise or threat were
established by the prosecution on part of the accused.
17. Now coming to another crucial aspect that is in
respect of committing of rape by the accused, as per the
evidence of PW.1, accused kept her in a room for two days
at Ajapanahalli village and committed rape on her three
times. The evidence of PW.1 is also that her Chudidar Top,
Leggings, Panty, Slip (Petticoat) and Duppatta marked as
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MOs.1 to 5 were seized by police. PW.1 during the course
of cross-examination stated that she did not take bath and
she has not changed her cloths. She denied the suggestion
that she washed her cloths at Ajapanahalli. She also
denied the suggestion that she attended the calls of
nature. She further stated that she did not go to toilet and
bathroom during her stay at Ajapanahalli. Her version is
that accused committed rape on her for three times. If the
evidence of PW.1 has to be believed, certainly there would
have been such material left after sexual intercourse if not
on the body of PW.1, but over her cloths. But Ex.P17 -
Report of Regional Forensic Science Laboratory goes to
show that no seminal stains were detected on articles 1 to
5 i.e., Chudidar Top, Chudidar Bottom (Leggings), Panty,
Slip and Duppatta. No such stains were detected eve n on
Pubic Hairs, Cervical Swab, Vaginal Swab, Cervical Smear
and Vaginal Smear. The evidence of PW.14 is that she
examined the victim and found no external injuries on any
parts of body. She further stated that the victim informed
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her that after last episode she has taken bath but has not
changed the cloths. PW.14 also deposed that after
verifying the FSL report she is of the opinion that there is
no evidence of recent sexual intercourse.
18. For connecting the accused to the crime in
question, Courts should not base on volume of evide nce.
The evidence produced should be convincing. In the case
on hand, prosecution miserably failed to establish that the
accused committed rape on the victim girl either at the
house of the victim or at Ajapanahalli. Prosecution also
failed to establish that due to inducement or threat of the
accused, PW.1 accompanied him to different places. Only
because the victim is a minor girl, without there being any
convincing evidence produced by the prosecution, accused
cannot be convicted. Therefore, we have no hesitation to
hold that the Trial Court went wrong in convicting the
accused for the charges levelled. Prosecution failed to
establish the guilt of the appellant for the charges levelled.
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Therefore, the resultant conclusion is that the appeal is
required to be allowed. Hence, the following:
ORDER
i) Appeal is allowed.
ii) Appellant/accused is found not guilty of the
charges levelled against him and thereby he is
acquitted of all the charges.
iii) Appellant/accused shall be set at liberty
forthwith.
iv)
Amount if any paid towards fine be refunded to
the appellant/accused.
v)
Registry to forward copy of this judgment
immediately through approved electronic mode
to concerned jail authorities.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
Sd/-
(DR.CHILLAKUR SUMALATHA)
JUDGE
LG/List No.: 2 Sl No.: 1
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