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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 15^TH DAY OF DECEMBER, 2021

PRESENT

THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

AND

THE HON’BLE MS.JUSTICE J.M. KHAZI

CRIMINAL APPEAL NO.100069/2018

BETWEEN

STATE OF KARNATAKA,

BY BHATKAL RURAL POLICE STATION,

UTTARA KANNADA DISTRICT, KARWAR,

THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,

ADVOCATE GENERAL OFFICE,

HIGH COURT OF KARNATAKA,

DHARWAD BENCH, DHARWAD.

...APPELLANT

(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

AND

DASTGEER GOUS PHEERSAB,

AGE: 35 YEARS,

R/O. GULME, BELALKHAND,

BHATKAL, DIST. KARWAR.

…RESPONDENT

(BY SRI.VIDYASHANKAR G. DALAWAI, ADV.)

THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS

378(1) AND (3) OF CR.P.C., PRAYING TO SET ASIDE THE

JUDGMENT AND ORDER OF ACQUITTAL DATED 01.08.2017

PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR

IN SPECIAL CASE NO.26/2013 AND ETC.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND

RESERVED FOR JUDGMENT ON 07.12.2021 COMING ON FOR

PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,

DELIVERED THE FOLLOWING:

JUDGMENT

Challenging the acquittal of respondent for the

offences punishable under Section 354A of the Indian

Penal Code, 1860 (hereinafter referred to as “IPC” for

short) and Section 8 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter referred to as

“POCSO Act” for short), the State has filed this appeal

under Sections 378(1) and (3) of the Code of Criminal

Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for

short).

2.

For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

3.

A charge sheet came to be filed against the

accused alleging that on 08.07.2013 at 05:15 p.m. while

prosecutrix was returning from School along with her two

sisters and was proceeding towards her house, near

Sodigadde Cross, accused sexually harassed her by trying

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to embrace her from behind with his hands. However, with

utter shock, prosecutrix shouted for help and ran away

along with her sisters and thereby accused committed the

offences punishable under Section 354A of IPC and Section

8 of POCSO Act.

4.

Accused has pleaded not guilty and claimed to

be tried.

5.

In support of the prosecution case, 8 witnesses

are examined as PWs.1 to 8 and Exs.P1 to 9 are marked.

6.

During the course of his statement under

Section

313

of

Cr.P.C.,

accused

has

denied

the

incriminating evidence led on the prosecution side. He has

not chosen to lead evidence on his behalf.

7.

After hearing the arguments of both sides, vide

the impugned judgment and order, the learned Special

Judge has acquitted the accused on the ground that the

prosecution has failed to prove the charges levelled against

the accused beyond reasonable doubt, including his

identity.

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8.

During the course of his arguments, the

learned Additional State Public Prosecutor submits that the

impugned judgment and order of acquittal is contrary to

law, facts of the case and evidence on record. PW.2 is the

victim girl. PW.3 is her sister. Their evidence prove the fact

that on 08.07.2013 when they along with their another

sister were returning from School, accused caught hold of

the shoulder of the prosecutrix and tried to grapple her.

Both PWs.2 and 3 have identified him. The evidence of

PW.5 corroborate with their testimony. The evidence of

PWs.7 and 8 prove the investigation. Without proper

application of mind, the learned Special Judge has

discarded their evidence and as such, his findings are

perverse and not sustainable in law.

9.

He

would

further

submit

that

without

appreciating the testimony of PWs.3 and 5, who are the

eye witnesses, which corroborate with the evidence of the

prosecutrix, the learned Special Judge has held that the

identity of the accused is not established. During the

course of his statement under Section 313 of Cr.P.C., the

accused has not dispute