Najeer Patel v. State of Karnataka - POCSO Appeal

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• Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc -... Upgrade to Premium [Cites 16, Cited by 0 ] ### Karnataka High Court

Najeer Patel vs The State Of Karnataka And Anr on 26 March, 2026

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CRL.A No. 200128 of 2024

                  HC-KAR

                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                           DATED THIS THE 26TH DAY OF MARCH, 2026

                                          BEFORE
                           THE HON'BLE MR. JUSTICE G BASAVARAJA
                            CRIMINAL APPEAL NO. 200128 OF 2024
                                   (374([Cr.PC](https://indiankanoon.org/doc/445276/))/415(BNSS))
                  BETWEEN:

                  NAJEER PATEL
                  S/O IMAMSAB PATEL
                  AGE: 32 YEARS, OCC: DRIVER
                  R/O TAKALI VILLAGE, TQ: AFZALPUR
                  NOW RESIDING AT MILLAT NAGAR
                  KALABUAGI-585104.
                                                                ...APPELLANT
                  (BY SRI. SANTOSH PATIL., ADVOCATE)
                  AND:

Digitally signed by
1. THE STATE OF KARNATAKA
SHIVALEELA THROUGH SUB-URBAN POLICE STATION
DATTATRAYA UDAGI
KALABURAGI
Location: HIGH
COURT OF (REPRESENTED BY ADDL. SPP
KARNATAKA
HIGH COURT OF KARNATAKA
KALABUAGI BENCH-585107)

                  2.   SMT.BIBI AYESHA
                       W/O MEHABOOBSHA
                       AGE: 50 YEARS, OCC: PRIVATE WORK
                       R/O NEAR SHAMS MASJID, MISBA NAGAR
                       KLABAURAGI-585103.
                                                            ...RESPONDENTS
                  (BY SRI.GOPALKRISHNA B. YADAV, HCGP FOR R1;
                  SRI. S. V. DESHMUKH ADV., FOR R2)
                             -2-
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                                    CRL.A No. 200128 of 2024

HC-KAR

 THIS CRL.A IS FILED U/SEC. 374 (2) OF CR.P.C (OLD)

U/SEC. 415 OF BNSS (NEW) PRAYING TO ALLOW THIS APPEAL
AND SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION DATED 30.03.2024 AND SENTENCE DATED
02.04.2024 PASED IN SPECIAL CASE POCSO NO.9/2023 BY
THE COURT OF ADDL. DISTRICT AND SESSIONS JUDGE FTSC-I
(POCSO) AT KALABURAGI AND CONSEQUENTLY BE PLEASED
TO ACQUIT THE ACCUSED/APPELLANT HEREIN.

 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 dated

30.03.2024 in Special Case (POCSO) No.9/2023 passed by

the Additional District and Sessions Judge, FTSC-I

(POCSO), Kalaburagi.

1. The parties are referred to as per their

rank before the trial Court.

1. The brief facts leading to this appeal are as

under:

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The Police Inspector, Sub-Urban Police Station,

Kalaburagi submitted a charge sheet against the accused

for the commission of offences under Sections 376(2)(I), 376(3), 384, 506 of the IPC and Sections 4 and 6 of the

POCSO Act. It is alleged by the prosecution that prior to

13.03.2022, the accused used to give chocolate to the

victim and used to induce the victim child. On 13.03.2022

at 03.00 p.m., when the accused's wife was not in the

house at that time, the accused called the victim through

phone and induced her to come to his house. Due to

inducement, the victim came to the house of the accused.
The accused enticed the child out of the keeping of the

lawful guardian of the victim without the consent of her

guardian and after kidnapping the victim, the accused

removed the clothes of the victim and committed rape on

her. Further, it is alleged that after committing rape, the

accused threatened the victim not to disclose the incident

to anybody, if she disclosed the incident, he would finish

the victim. Thus, the accused has committed the alleged

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offences. After Investigation, Investigating Officer

submitted the charge sheet against the accused and the

Special Court took cognizance against the accused for the

alleged commission of offences and accused was enlarged

on bail. On hearing the charges, the trial Court framed the

charges against the accused for the alleged commission of

offences, the same were read over and explained to the

accused. Having understood the same, the accused

pleaded not guilty and claimed to be tried.

1. To prove the guilt of the accused, the

prosecution examined in all 14 witnesses as PWs1 to 14

and 31 documents were marked as Exhibits P1 to P31 and

8 material objects were marked as MO.Nos.1 to 8.

1. On closure of the prosecution evidence, the

statement under Section 313 of Cr.P.C. was recorded. The

accused totally denied the evidence appearing against

him. However, he did not choose to lead any defense

evidence on his behalf.

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1. Having heard the arguments on both sides, the

trial Court convicted the accused for the commission of

offences under Sections 363, 376(2)(i) and 506 of the IPC

and Section 6 of the POCSO Act, 2012 and passed the

sentence to undergo rigorous imprisonment for 20 years

for the offence under Section 6 of the POCSO Act and a

fine of Rs.20,000/-. The accused is sentenced to undergo

simple imprisonment for 5 years for the offence under Section 363 of the IPC and find of Rs.5,000/-. The accused

is sentenced to undergo imprisonment for 1 year for the

offence under Section 506 of the IPC and fine of

Rs.1,000/-. Being aggrieved by the judgment of conviction

and order on sentence, the appellant has preferred this

appeal.

1. The learned counsel appearing on behalf of the

appellant would submit that the judgment and order of

conviction and sentence passed by the learned Sessions

Judge convicting and sentencing the appellant is opposed

to law and the circumstances of the case and the same is

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liable to be set aside. The trial Court has erred in

convicting the appellant despite the prosecution failing to

prove the case. The complainant, in collusion with the

police, has cooked up a concocted story and has framed

the appellant in the instant case only to settle her scores

and the complaint with ill-will has falsely implicated the

appellant to meet out harassment.

1. He further submits that PW1 is the victim girl

has deposed in her evidence that the appellant resides

near the house of the victim and on 13.03.2022 when the

mother of the victim was not in the house, the appellant

told the victim to come to his house over phone and also

gave threat, thereby he committed rape on the victim girl.

In the cross-examination, the victim has deposed that her

father is doing black magic business and has also deposed

that the appellant used to call the victim through phone

and the appellant used to button the mobile set and the

victim also used to button the mobile set and there is no

option in the set of the mobile to click the photo and to

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record any video. The victim has also deposed that the

police have prepared the complaint. Hence, there are

many contradictions, improvements and omissions in the

evidence of the witness which go to the root of the

prosecution case, thereby raises doubts the evidence of

victim is doubtful and not reliable, as she has deposed

upon the tutoring by her mother who is the complainant of

the case. PW2 is the complainant in this case also the

mother of the victim girl has deposed that, appellant has

committed rape on victim and has also given life threat

and further deposed that, appellant has asked the victim

to bring Rs.5,00,000/- and if she has not bring the said

amount, the appellant will viral the naked video in

YouTube and this was told by the victim to the

complainant and as further deposed that, complainant has

committed rape upon the victim on 13.03.2022 and this

fact was known to the complainant upon enquiry with the

victim girl and after discussing about the incident, the

complainant lodged complaint on 24.11.2022. In the cross

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examination, she has admitted that the wife of the

appellant has taken Rs.10,000/- from the complainant and

she used to take money from the complainant whenever

she was in need. The evidence of the complainant does

not inspire confidence because she is a hearsay witness

and there are many admissions and omissions in the

evidence of this witness and there is a delay of more than

eight months in lodging the complaint and the reasons for

delay are not satisfactorily explained, which raises doubts

regarding the genuineness of the complaint.

1. PW.3 is one Muhammed Meeraj Patel, a punch

witness, he has deposed that in his presence spot

panchanama was conducted and he has made his

signature on it. But in the cross-examination, the said

witness has admitted that he cannot read and write

Kannada.

1. He further admitted that he does not know

what is written in the panchanama as he cannot read and

write Kannada. He also admitted that he is giving evidence

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as per the instruction of CW7. Hence, the evidence of the

witness also raises doubts and the same is not believable.

Further he would submit that PW4 is one Harun Khateef,

who is a circumstantial witness, has not supported the

case of the prosecution. PW5 is one Shaik Rukmuddin, has

not supported the case.

1. Further he would submit that there is no

medical evidence to substantiate the case of the

prosecution. Further he would submit that the prosecution

has failed to place the relevant documents to prove the

age of the victim as required under Section 94 of the

Juvenile Justice (Care and Protection of Children) Act,

1. The prosecution has produced the school certificate

and examined PW7, which is not sufficient to prove the

age of the victim. The trial Court has not properly

appreciated the evidence on record in accordance with law

and facts. On all these grounds, he sought for allowing this

appeal.

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1. As against this, the learned HCGP Sri

Gopalkrishna B. Yadav would submit that the trial Court

has properly appreciated the evidence on record in

accordance with law and facts and that there are no

grounds to interfere with the impugned judgment of

conviction and sentence passed by the trial Court and

sought for dismissal of the appeal.

1. Having heard the arguments on both sides, the

following points would arise for my consideration:

i. Whether the prosecution proves beyond all
reasonable doubt that the victim was a child as
defined under Section 2(d) of the POCSO Act,
2012 as on the date of the commission of the
offence?

ii. Whether the trial Court is justified in
convicting the accused for the alleged offences
under Sections 363, 506 of the IPC and Section 6 of the POCSO Act?

iii. What order?

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Reasons to point Nos.1 and 2
14. I have examined the materials placed before

this Court.

1. It is alleged by the prosecution that prior to

13.03.2022, the accused used to give chocolate to the

victim and used to induce the victim child. On 13.03.2022

at 3:00 p.m., when the accused's wife was not in the

house at that time, the accused called the victim through

phone and induced her to come to his house. Due to

inducement, the victim came to the house of the accused.

The accused enticed the child out of the keeping of the

lawful guardian of the victim without the consent of her

guardian and after kidnapping the victim, the accused

removed the clothes of the victim and committed rape on

her. Further, it is alleged that after committing rape, the

accused threatened the victim not to disclose the incident

to anybody; if she disclosed the incident, he would finish

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the victim. Thus, the accused has committed the alleged

offences.

1. To prove the age of the victim, the prosecution

has produced Exhibit 13, which is the registration of

admission, in which the date of birth of the victim is shown

as 01.05.2007. Exhibit P14 is the zerox copy of the birth

certificate issued by the Head Mistress, Fortune English

Medium High School, Jeelanabad, Kalaburagi, which

reveals that the age of the victim was 01.05.2007. Exhibit

P12 is the bona fide certificate issued by the Head

Mistress, Fortune English Medium High School,

Jeelanabad, Kalaburagi, which reveals that the date of

birth of the victim was 01.05.2007. PW7 - Syada Nazima

Zabin, Head Mistress, Fortune English Medium High

School, Jeelanabad, Kalaburagi has deposed in her

evidence as to the issuance of Exhibits P12 to P14. PW11 -

Ramesh, Police Inspector, has not deposed anything in his

evidence as to the non-production of the certified copy of

the birth certificate issued by the concerned authority.

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Though Exhibit P14 is the birth certificate of the victim,

this is not a certified copy issued by the concerned

authority; this is a zerox copy of the birth certificate

issued by the administration of Fortune English Medium

High School, Jeelanabad, Kalaburagi. PW2 is the mother of

the victim and has not deposed as to the date of birth of

the victim; even she has not deposed in her evidence

whether she has produced a copy of the birth certificate to

the school authorities at the time of admission of the

victim. The Investigating Officer has not whispered

anything about how the Headmaster of the concerned

school produced the zerox copy of the birth certificate,

how he issued it, and on what basis he issued this zerox

copy by putting his seal and signature on the zerox copy

of the birth certificate. The Investigating Officer has not

explained anything as to the non-collection of the original

certified copy of the birth certificate obtained from the

concerned authority. Therefore, mere production of the

zerox copy of the birth certificate issued by the concerned

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school authorities is not sufficient for compliance with Section 94 of the Juvenile Justice (Care and Protection of

Children) Act, 2015.

1. It is well settled principle of law that mere

production of document does not amount to proof.

Accordingly, a prosecution has not proved Exhibit P14 in

accordance with law. With regard to Exhibit P13, the

school admission register extract is concerned same is not

sufficient to prove the age of the victim. In view of the

decision of Hon'ble Apex Court in the case of

P.Yuvaprakash Vs. State Rep. By Inspector of

Police1.

1. Exhibit P8 is the medicolegal examination report

for sexual violence of the victim which reveals that the

medical officer has not complied with the

mandatory provisions of Section 164A of the Code of

Criminal Procedure. The Investigating Officer has also

2023 INSC 676

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not complied with the mandatory provisions of Section 34 of the POCSO Act. The Investigating Officer has not

obtained an ossification test certificate from the concerned

medical board to prove the age of the victim. Viewed from

any angle, I do not find any cogent, convincing,

credible or legal evidence to prove that the victim

was a child as defined under Section 2(d) of the POCSO

Act on the date of commission of the offence.

Accordingly, point No.1 is answered in the Negative.

Regarding Point No.2:

1. Since the prosecution has failed to prove that

the victim was child as defined under Section 2(d) of

POCSO Act 2012, the question of committing offence

under the penal provisions of POCSO Act 2012, does not

arise. Accordingly, the prosecution has failed to prove that

the accused has committed the offence punishable under Section 6 of POCSO Act 2012.

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1. With regard to the offence punishable under Sections 363, 506 and 376(2)(i) of IPC are concerned,

PW.1 in his evidence stated that the alleged incident took

place on 13.03.2022 at 3.00 p.m. and the complaint came

to be filed on 24.11.2022. After lapse of 8 months 11

days, the complaint is filed. The complainant has not

whispered anything as to the delay in lodging the

complaint. However, in Ex.P.17 at Column No.3(c), it is

stated that, ªÀÄ£ÉAiÀÄ°è PÀÄlÄA§zÉÆA¢UÉ «ZÁgÀ ªÀiÁr vÀqÀªÁV §AzÀÄ

zÀÆgÀÄ ¤ÃrgÀÄvÉÛãÉ. None of the prosecution witnesses have

deposed anything as to delay in filing the complaint. After

lapse of 8 months 11 days, the victim was examined by

the Medical Officer wherein he stated that a victim by

name Shahana aged 15 years, bought by WPC No.379 and

354 in Crime No.274/2022 admitted to Government

Hospital at 10.11 p.m., on 24.11.2022, examined at 11.00

p.m. and she was sent for examination taken by social

worker, WPC and her mother. She knows a person by

name Nazir S/o: Imamsab, R/o: Kalaburagi and she has

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sexual contact once 8 months back. The abnormal delay of

8 months 11 days in approaching the Medical Officer has

also not explained by the prosecution. Ex.P9, the Test

Report issued by the Government of Karnataka, Regional

Forensic Science Laboratory, Police Training Center,

Naganalli, Kalaburagi, reveals that the seminal stain was

not detected in article Nos.1, 3, 5, 6, 7 and 8 and

spermatozoa was detected in article Nos.2 and 4.

Accordingly, the evidence of PW.1 is not supported with

the medical evidence.

1. PW.1, has deposed in her evidence that on

13.03.2022, when his mother was not in the house, she

was in the house with her sister. At that time, the accused

called her through phone and she did not receive phone

call. Accused called repeatedly. Hence, her younger sister

received call and accused asked her sister to give phone

call to her, otherwise he will come to the house. Her sister

given phone to her and accused told her to come to his

house and gave a threat that if she would not go to his

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house, he will come to his house. Hence, she went to his

house due to fear. When she went to the house of the

accused, at that time, his family members were not in the

house. Accused used to dragged by holding her hands and

teased her and she removed her clothes and committed

rape on her. After committing rape, he gave life threat

stating that if she disclose the incident to anybody, he will

kill her parents and her. Then, she came to her house.

Thereafter, accused used to take her to hotel, garden and

he used to come to school and used to take money from

her by giving threat. On 08.11.2022, accused called

through phone to her mobile and abused her mother.

Therefore, her mother went to the police station and

lodged a complaint. Thereafter, the police have registered

the case. The police took her to the Government Hospital,

Kalaburagi. At the time of examination, the doctor

collected her clothes which are marked as MO Nos.1 to 3.

Thereafter she came to her house and shown the house of

the accused to the police. The police conducted spot

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panchanama in the house of accused and took the photo

of panchanama at Ex.P1. She gave her statement before

the learned Magistrate under Section 164 of Cr.P.C. as per

Ex.P3.

1. PW.2-B.B.Ayusha, the mother of the victim

deposed in her evidence that CW.7 is her husband, CW.4

is her daughter, the victim is about 15 years old and she

was studying in 10th Standard. CW.5 is her relative. She

know CWs.6 and 8, she know the accused who was

present on screen, who is their neighbour, accused is

married person and having one child. On 10.11.2022, she

came to know that, CW.6 told her that, victim was

wandering with accused in Kalaburagi Garden, thereafter

she enquired with victim. On enquiry, victim told her that,

she used to go to the house of accused, she further told

her that, on 13.03.2022 at about 3.00 p.m., the accused

called the victim through phone and asked her to come to

his house, accused gave a threat to victim, if she is not

come to his house, due to threat victim went to the house

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of the accused, at that time there were none in the house

of the accused except accused and accused has committed

rape on victim and gave life threat not to disclosed the

incident, if she disclosed the incident he would kill her

parents, due to said threat she did not disclosed. Further

victim told her that, accused asked her bring 5 lack

Rupees, if she not bring the said amount he will viral her

naked video in the Youtube. Thereafter, she discussed with

my family members about the incident and lodged the

complaint on 24.11.2022 against the accused. Now, she

seen the complaint, same is marked as Ex.P.4, witness

identified his signature, same is marked as Ex.P.4(a).

Thereafter, police had come to her house and she shown

the spot to the police and police conducted spot

panchanama, she put her signature on panchanama and

victim was also present and put her signature on

panchanama. She was present at the time of panchanama

conducted in the house of accused and she put her

signature on panchanama.

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1. PW.3-Md.Miraj Patel has deposed with regard to

the mahazar conductor by the police.

1. PW.4-Harun Khathif, the circumstantial witness

has not supported the case of the prosecution.

1. PW.5-Shaik Rukmuddin, has also not supported

the case of the prosecution.

1. PW.6-Dr.Shashikala, has deposed with regard

to the examination of the victim and issuance of certificate

at Exs.P9 and 10.

1. PW.7-Syada Nazima Zabin, Headmaster, has

deposed as to the issuance of Exs.P12 to 14.

1. PW.8-Shantappa Sidramappa, Assistant

Engineer PWD, has deposed with regard to the rough

sketch prepared by him as per Ex.P15.

1. PW.9, Kavita, WPSI, Sub-Urban Police Station,

PW.10, Buramma, WPC-361, PW.11, Ramesh Yallappa

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Kamble, PW.12, Anil Hanumanth, have deposed with

regard to their respective investigation.

1. PW.13-Mohammad Nizamuddin, the driver has

deposed that his evidence with regard to the panchanama

conducted by the police as per Ex.P1.

1. PW.14-Subash Rukmanappa, Press Reporter

has not supported the case of the prosecution.

1. On careful examination of the entire evidence

placed on record, it is crystal clear that PWs.1 and 2, the

material witnesses, have not deposed anything as to the

abnormal delay of 8 months 11 days in filing the

complaint. Even the evidence of PW.1 is not consistent to

the evidence of PW2. The evidence of PWs.1 and 2

appears to be unnatural, the same is not trustworthy and

believable. When the evidence of material witnesses

including the victim is not trustworthy and believable, it is

not safe to convict the accused for the alleged commission

of offences. Absolutely there is no positive, cogent,

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convincing, clinching, believable, credible and trustworthy

evidence before the Court to convict the accused.

Accordingly, the trial Court is not justified in convicting the

accused for the aforesaid offences. Hence, I answer point

No.2 in the Negative.

1. Point No.3: For the aforesaid reasons and

discussions, I proceed to the following:

ORDER

(a) The Criminal Appeal is allowed.

(b) The judgment of conviction and order on

sentence dated 30.03.2024 and sentenced

dated 02.04.2024 passed in Special Case

(POCSO) No.09/2023 by the Additional District

and Sessions Judge, FTSC-I (POCSO), at

Kalaburagi, is hereby set aside.

(c) The accused is acquitted for the offence

punishable under Sections 363, 506 of IPC and Section 6 of POCSO Act, 2012.
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(d) The bail bond of appellant/accused shall
stand cancelled;

(e) The trial Court is directed to refund the fine
amount, if any in deposit, to the
appellant/accused;

Registry is directed to send the trial Court records

along with the copy of this Judgment to the concerned

Court.

Sd/-

(G BASAVARAJA)
JUDGE

TIN/msr
List No.: 1 Sl No.: 47
CT-BH