Mr Bhaskar Naik vs The State By Inspector Of Police Women

threats, he committed sexual intercourse thrice--between -4- CRL.A No. 2223 of 2022

12:45 p.m. and 2:30-3:00 p.m., before dropping her near

home.

5. Intimidated by the accused, the victim concealed

the assaults from her family until her mother inquired about

her school absence, prompting full disclosure; following

consultations with relatives, the complaint was formally

registered on 03rd January, 2020. Investigation ensued,

culminating in the accused's arrest and remand to judicial

custody, followed by the filing of a charge sheet, upon

cognizance of which, trial Court has proceeded in Spl. Case No.

22 of 2020.

6. The Trial Court has ensured that the charge-sheet

along with its annexures was furnished to the learned counsel

for the accused pursuant to Section 207 of the Code of Criminal

Procedure, 1973 and after hearing in the presence of both

sides, the trial court has framed charges against the

appellant/accused under Sections 376(2)(n)(i) and 506 of the

Indian Penal Code, 1860, as well as Section 5 read with Section

6 of the Protection of Children from Sexual Offences Act, 2012

(for short "POCSO Act"). The charges were explained to the

appellant/accused in the language known to him, whereupon he

pleaded not guilty and claimed trial. The Trial Court has noted -5- CRL.A No. 2223 of 2022

that the prosecution examined PWs.1 to 20 out of 28 charge-

sheet witnesses, dispensing with the rest as formal or

repetitive; documents marked as Exhibits P1 to P43 and

material objects MOs1 to 8 were admitted in evidence. The

appellant/accused's statement under Section 313 Cr.P.C. was

recorded, denying all incriminating circumstances, though no

defence evidence was led. The Trial Court has heard

arguments advanced by the Special Public Prosecutor and the

learned counsel for the appellant/accused, and has meticulously

perused the oral evidence, documentary exhibits, and entire

record. The Trial Court, upon consideration of the evidence and

arguments, answered Points 1 and 2 in the affirmative, holding

that the accused was guilty of the offences punishable under

Sections 376(2)(n)(i) and 506 of the Indian Penal Code, 1860,

as well as Section 5 read with Section 6 of the POCSO Act, and

passed final orders accordingly. The Trial Court has sentenced

the accused to undergo rigorous imprisonment for 10 years

under Section 376 IPC with a fine of Rs.10,000/- and simple

imprisonment for 1 year in default to undergo 6 months' simple

imprisonment under Section 506 IPC, with a fine of Rs.5,000/-

and 3 months' simple imprisonment in default; and to 20 years

rigorous imprisonment under Section 6 of POCSO Act, with a

fine of Rs.10,000/- and 6 months' simple imprisonment in -6- CRL.A No. 2223 of 2022

default. The Trial Court has directed that, upon the accused

depositing the total fine of Rs.25,000/-, Rs.5,000/- shall be

forfeited to the State and Rs.20,000/- paid to the victim (PW.1)

as compensation; additionally, Rs.2,00,000/- victim

compensation under Section 357A Cr.P.C. shall be provided by

the State authority, considering the victim's age (aged about

15 years), student status, and her parents' rural, uneducated

background, amid the rape offence. The Trial Court has

ordered all sentences to run concurrently, with set-off under

Section 428 Cr.P.C. for the period of judicial custody from 05th

January to 16th July, 2020. Aggrieved by the same, the

appellant accused has preferred this appeal.

ARGUMENTS BY APPELLANT/ACCUSED COUNSEL:

7. The learned counsel reiterated the grounds of

appeal and has filed the notes of arguments on 20th November,

2025. The learned counsel for the appellant argued in length

and has submitted that the prosecution did not prove the

charges beyond reasonable doubt. The victim's statements in

the complaint, her Section 164 Cr.P.C. statement before the

Magistrate, chief-examination, and cross-examination contain

major contradictions about time, place, and events on

18.12.2019 and 01.01.2020. On 18.12.2019, she first said a -7- CRL.A No. 2223 of 2022

crowded tempo took her to a wedding hall in Peraduru for food,

but later claimed rape in the accused's van near a forest or

road; her Section 164 statement mentioned rape during a bus

stop midway to Peraduru.

8. The learned counsel further submits that on 01st

January, 2020, the victim described the accused tricking her

into a school van claiming friend Nagaratna was inside,

dropping students at Mandarthi, going to a Brahmavar hotel

and garage, then raping her thrice en-route to

Barkur/Althar/Mandarthi. However, her Section 164 statement

said the accused called saying "maaduva baa" , took her

directly to Altharu/Barkur for rape, then hotel and third rape in

Brahmavar--showing no consistent sequence, undermining

reliability, despite no mandatory corroboration in rape cases.

9. The Counsel stressed that CW15-Dr. Anita S who

has issued the medical certificate (Ex.P33) and opinion,

however she was not examined, whose medical report noted

doubtful penetration and no sperm/pubic hair; FSL reports

Ex.P38-39 issued by CW18-Dr. Kasturi Wodeyar and CW19-

Dr. Veena P. showed 'nil' report from victim's swabs/organs

and students CWs10-12 who saw the victim in van but denied

incident hence turned hostile witnesses. The garage owner -8- CRL.A No. 2223 of 2022

CW5, hotel owner CW8, and PW4 Vignesh the "roovari" who

signed mahazars have not supported the case of prosecution

and have weakened the case. The cross-examination of

Investigating Officer-CW27 revealed arrest/seizure at Kokkarne

and not Brahmavar as claimed by victim, with no mahazar

there, suggesting fabrication; unexplained FIR delay and

voluntary conduct by minor victim indicated no force.

10. The learned counsel for the accused has argued

that there is a discrepancy with regard to the spot of the

incident. The victim girl has given different version so far as

the place of incident. The case is registered at the instance of

PW7-Vigneshwara. PW1 and PW2 have admitted this fact in

the cross-examination. There is an enmity between PW7 and

the accused. In order to take revenge against the accused,

PW7 has filed a false case through the victim girl. Medical

evidence do not support the case of the prosecution. RFSL

report also do not support the case of the prosecution.

11. The Counsel further submits that the Trial Court

erred in convicting the accused under Sections 376(2)(n)(i),

506 IPC and Section 6 POCSO Act (aggravated penetrative

sexual assault on child, punishable by 20 years to life RI),

ignoring benefit of doubt from these lapses, and on all these -9- CRL.A No. 2223 of 2022

grounds prayed to set aside conviction/sentence, acquit

appellant.

ARGUMENTS BY STATE-RESPONDENT.NO1:

12. On the other hand, the learned HCGP has argued

that the victim girl was aged only 14 years. The victim girl has

stated that the accused has given threat to her and took her to

different places in the van and committed sexual intercourse in

the van as well as in the mini forest. The evidence of the

victim girl is supported by the medical evidence. As per

Section 29 of POCSO Act, the accused has to rebut the

presumptions in favour of the prosecution. The accused has

neither led any evidence nor submitted any defence during the

statement recorded u/s 313 of Cr.P.C. Hence, the prosecution

has proved the case and the appellant/accused is liable to be

convicted. In the light of this submission, the counsel seeks

dismissal of the appeal on aforementioned grounds.

13. On hearing the arguments of both sides and on

perusal of the records the following points would arise for our

consideration:

- 10 -

CRL.A No. 2223 of 2022 (1) Whether the Appellant/Accused has made out grounds to interfere with the impugned judgment or order of conviction?

(2) What order?

14. My answer to the above points are as under:

Point No.1: in the affirmative;

Point No.2: as per final order

RE. POINT NO.1:

15. I have carefully considered the contentions urged

by both sides in the light of the evidence on record. Before

appreciating the evidence put forth, it is very important to keep

in mind the presumptions availed under the POCSO Act.

Without defeating the object of the POCSO Act, which is to

prevent children aged less than 18 years from offences like

sexual harassment, sexual assault and child pornography,

appreciation of evidence shall be made. Section 2(d) of the Act

defines child as "any person below the age of 18 years.

16. Section 29 of POCSO Act provides that the Court

shall presume that the accused has committed the offence for

which he was charged with, until the contrary is proved.

However, before this presumption can operate, the prosecution

has to prove the foundational facts. A three-Judge Bench of

- 11 -

CRL.A No. 2223 of 2022 the Supreme Court in SAMBHUBHAI RAISANGBHAI PADHIYAR

v. STATE OF GUJARAT reported in (2025)2 SCC 399, has held

that Section 29 of POCSO Act comes into play once the

foundational facts are established. It holds as follows:

"35. It will be seen that presumption under Section 29 is available where the foundational facts exist for commission of offence under Section 5 of the POCSO Act. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault and Section 6 speaks of punishment for aggravated penetrative sexual assault. Section 3 of the POCSO Act defines what penetrative sexual assault is..."

17. A gainful reference in this regard may also be made

to the decision of a co-ordinate Bench of this Court in VEERPAL

v. STATE, reported in 2024 SCC ONLINE DEL 2686, wherein it

was held as under:-

"20. Section 29 of POCSO Act provides that Court shall presume that the accused has committed the offence for which he is charged with, until contrary is proved. However, the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt. After the prosecution establishes the foundational facts, the presumption raised against the accused can be rebutted by discrediting the prosecution witnesses through cross-examination and demonstrating the gaps in prosecution version or improbability of the

- 12 -

CRL.A No. 2223 of 2022

incident or lead defence evidence in order to rebut the presumption by way of preponderance of probability."

18. In the present case, concededly, neither the age of

the child victim nor her competence to depose, was disputed

during the trial or in the present appeal. However it has to be

seen that whether the prosecution has been able to lay the

foundational facts and thus brought into play Section 29 of

POCSO Act, the presumption of which the whether the

appellant has failed to rebut and also whether the appellant has

failed to discredit the prosecution witnesses or demonstrate any

fatal flaws or gaps in the case of the prosecution.

19. In this case, the prosecution has claimed that the

victim girl is aged about 14 years. Now burden lies heavily on

the prosecution to prove this aspect. In order to prove this

aspect the prosecution has produced Exhibits P23 & P34.

Exhibit P22 is the certificate issued by Govt. High School,

Kokkarne. Exhibit P33 is the birth of the victim girl. The

prosecution has adduced the evidence of PW14, who has

deposed in-conformity with Exhibit P23. On this point the

appellant counsel has argued that the question is whether

PW14-Mrs. Jayashree the Head Mistress of the High School

proved the date of birth certificate issued by her at Ex.P23 is in

- 13 -

CRL.A No. 2223 of 2022

negative. The contention of the appellant counsel as per

Exhibit P23 (Page 151-153) the victim's date of birth is 26th

May, 2005, however during cross examination, she has stated

"Ex.P.23 ಾವ ಆzsÁರದ ೕ ೆ ೊ ೇ£É ಎಂದು ಬ ೆ ರುವ ಲ. ೕ ೕ

ಒತಡ ೆ"......", and further argued that the learned Sessions Judge

has given the finding regarding the date of birth (Page 27 para

26) PW14 deposed in conformity with Ex.P23. In cross-

examination, there is no denial with regard to the date of birth

of the victim girl as 26th May, 2005. Apart from this, PW14

categorically stated her date of birth is 26th May, 2005. The

date of birth stated by the victim is in conformity with Exhibits

P23 and P34. But the statement in Exhibit P23 (study

certificate) and Exhibit P34 (date of birth), discloses the entry

of date of birth as 22nd June 2005. So, PW14 the author or the

prosecution, didn't prove the date of birth in her testimony, the

material inconsistency in her statement between testimony and

statement in Exhibits P23 and P34 raised material contradiction

and the date of birth is not proved. So the question of raising

prima facie presumption under section 29 of the POCSO Act

does not arise. Accordingly, the finding that the

appellant/accused did not rebut the prosecution with defence

evidence and statement under Section 313 Cr.P.C., has no

- 14 -

CRL.A No. 2223 of 2022 application, and Learned Sessions Judge has misconceived the

facts. However, it is well settled that the prosecution has the

burden to prove the age of the victim. For age determination

in POCSO cases, applying Section 94 of the Juvenile Justice

(Care and Protection of Children) Act, 2015, establish a

mandatory priority: (i) matriculation/equivalent certificate; (ii)

birth certificate from municipal authority; (iii) ossification test

as last resort. The Hon'ble Supreme Court in JARNAIL SINGH

v. STATE OF HARYANA reported in (2013)7 SCC 263, has

extended Rule 12 of Juvenile Justice (Care and Protection f

Children) Rules, to POCSO victims, mandating documentary

priority over medical evidence; matriculation certificate

conclusive if available and in the case of P. YUVAPRAKASH v.

STATE (REP. BY ITS INSPECTOR OF POLICE), CBCID,

COIMBATORE, (2023)7 SCC 700: the Supreme court has held

School transfer certificates inadmissible as primary proof; strict

adherence to Section 94 hierarchy required, rejecting

secondary school records. Courts must record reasons under

Section 94(3); prosecution proves age beyond doubt, with

benefit to accused on ambiguity. Ossification test uses upper

age range plus 2-year margin.

- 15 -

CRL.A No. 2223 of 2022

20. In the present case the birth certificate-Exhibit P34

clearly shows the age of the victim 14 years 6 months and 22

days. Regarding the age of the victim, the prosecution has

clearly established and hence Section 29 of the POCSO Act

comes in the way of appellant.

21. The victim's statement and the FIR (Ex.P1)

describe the rape as occurring around 2:00 PM on 18.12.2019

at the roadside near Mudur. However, during cross-

examination, it emerges that at the very same time--2:00 PM

on 18.12.2019--the victim, together with other guests,

apparently attended a "samman oota" at Mangalya Sabha

Bhavan in Perdoor and spent time there until about 4:00 PM.

This places the victim in a public gathering, in company of

several others, at the alleged time and presumably at a

considerable distance from the supposed scene of crime. The

victim cannot have been both at the roadside in Mudur

(isolated) where the assault allegedly took place, and

simultaneously among a group at the Mangalya Sabha Bhavan

in Perdoor for the samman oota. These statements are

mutually exclusive and irreconcilable. Section 11 of the

Evidence Act states that when two statements of the same

witness are contradictory and cannot be reconciled, the latter

- 16 -

CRL.A No. 2223 of 2022

statement has to be taken as the true statement and the

former rejected unless there is a satisfactory explanation.

Here, no such plausible explanation exists to harmonize the

two positions. The contradictions in the victim's testimony

create reasonable doubt as to whether the alleged offence

occurred as described. The prosecution must prove guilt

beyond reasonable doubt and failure to resolve this material

contradiction, weakens their case substantially. The

evidentiary record reveals significant material contradictions in

the victim's account regarding the alleged incident dated 01st

January, 2020, as compared between the FIR (Ex.P1) dated

03rd January, 2020 and the 164(5) Cr.P.C. statement (Ex.P11)

recorded before the JMFC. These contradictions pertain to the

timeline and locations of the alleged sexual assaults, with

discrepancies relating to the sequence and places of

occurrence such as Barkur, Alktar, and Brahmavar. The

victim's initial narration to her mother indicated the entire

day's ordeal, but the FIR and subsequent investigative record

reflect omissions and embellishments, including the

introduction of a prior incident dated 18th December, 2019 that

was not disclosed to the mother or in the victim's initial

complaint. During the cross examination on 16th January,

2021 in page No.6, the victim has narrated that earlier she had

- 17 -

CRL.A No. 2223 of 2022

an affair with one Prathiv Raj and there was quarrel and said

person was assaulted. In page No.7,the victim has admitted

that the complaint Exhibit P1 was filed at the insistence of

CW4. These inconsistencies fundamentally undermine the

veracity of the prosecution's case and suggest possible

embellishment or concoction aimed at influencing the

investigation. In judicial scrutiny, such material

contradictions--particularly those affecting the core narrative

of the prosecution--call for a cautious approach in assessing

the credibility of the victim as a witness. The accused has

rebutted the presumption against him under Sections 29 and

30 of the POCSO Act, and entitled to the presumption of

innocence.

22. The medical evidence presented by the prosecution,

specifically the medical report Exhibit P33 issued by CW15 on

03rd January, 2020, which is a vital document, however the

author of the Exhibit P33 was not testified in court. It is well

established principle of appreciation of evidence and to prove

the veracity of the contents of the document, the author or the

expert must adduce the evidence before the court after

administering the oath, it is clear that the doctor who issues

such a certificate can authenticate it, without her examination

- 18 -

CRL.A No. 2223 of 2022

rendering Exhibit P33 inadmissible. The report notes healed

hymeneal tears but opines only a possibility of sexual

intercourse, which is medically inconclusive. Additionally, the

timing and physiological details conflict with the occurrence of

intercourse, evidenced by the absence of spermatozoa and

negative pregnancy tests on samples analyzed by experts. The

victim's testimony also shows inconsistencies and

contradictions regarding the place and time of the alleged

incident, undermining the prosecution's case. The medical

evidence does not corroborate the victim's version, and the

presence of a consensual relationship with another individual

further complicates establishing non-consensual sexual

intercourse. These discrepancies create reasonable doubt, and

under the rule of benefit of doubt, the accused deserves

acquittal. Therefore, the prosecution has failed to prove the

case beyond reasonable doubt.

23. Viewed from any angle, absolutely that there is no

consistency, cogent, corroborative, clinching, believable and

trustworthy evidence, the trial court has not properly

appreciated the evidence on record in accordance with law and

facts and passed the impugned judgment of conviction. After

re-appreciation of evidence on record, I find it is just and

- 19 -

CRL.A No. 2223 of 2022

proper to interfere in the impugned judgment. Hence, I answer

point No.1 in the affirmative.

RE. POINT No.2:

24. For the aforestated reasons and discussion, I

proceed to pass the following:

ORDER

i) The appeal is allowed;

ii) The judgment of conviction and order of

sentence dated 14th December, 2022 passed

in S.C. No.22/2022 by the Principal District

and Sessions Judge, Udupi convicting the

accused for the offences punishable under

Sections 506, 376(2)(n)(i) of the Indian Penal

Code and Section 6 of the POCSO Act, 2012,

is set aside;

iii) The accused is acquitted of all charges;

iv) The accused, presently undergoing sentence,

shall be released forthwith from judicial

custody, if not required in any other case; - 20 - CRL.A No. 2223 of 2022

v) The Registry is directed to communicate a

copy of this order forthwith to the

Superintendent of the concerned Jail for

compliance and release of the accused.

Sd/-

(G. BASAVARAJA) JUDGE

lnn