The main legal point established in the judgment is the interpretation and application of the evidence to establish guilt under Section 368 of IPC.

B.V. Pinto , J.—This appeal is filed by the State challenging the judgment dated 6.12.2006 passed by the Prl. Sessions Judge, Chikmagalur, in SC No. 131/2005 acquitting the respondent-accused for the offence punishable under Sections 366A, 368, 376 and 506 IPC r/w Sections 3 and 25 of Indian Arms Act,- 1959. The parties are referred as per their rank before the trial Court. It is the case of the prosecution that on 31.8.2005 at about 3.00 p.m. at Gungaravalli village of Lakya Hobli, Chikmagalur Taluk, the accused abducted CW3-Jyothi-a mentally challenged girl and concealed her in a temporary hut erected in his sugarcane land situated in Sy. No. 98 of Srinivasapura village with an intention of subjecting her to his unnatural lust and thereby he is alleged to have committed an offence under Section 368 IPC. It is the further case of the prosecution that the accused committed rape on Jyothi in the said hut from 31.8.2005 to 5.9.2005 punishable under Section 376 IPC. It is the further case of the prosecution that on 5.9.2005 when PW1 accompanied by PW7, PW8, CW12, CW14, CW15 and CW16 came to the hut in search of CW3, the accused was found to have committed criminal intimidation by threatening them with dire consequences at gun point, thereby he is alleged to have committed offence under Section 506 IPC. It is further alleged that at the place of incident, the accused was in possession of A.S.B.M.L. gun marked as MO3 without a valid licence provided under Section 25 of Indian Arms Act, 1959 and the Rules thereunder thereby he is alleged to have committed offence under Section 3 r/w section 25 of the Arms Act, 1959.

2. On securing the presence of the accused, the investigation was conducted by PW16-CPI who recorded the statement of PW2 the mother of the victim, as the girl did not respond to any one except her mother and thereafter the victim was subjected to medical examination and it was found that the victim was mentally retarded. After completion of the investigation, charge sheet for the aforesaid offences was filed.

3. The accused denied the charges levelled against him. Thereafter, during the course of trial, prosecution in order to prove its case, examined in all 19 witnesses and got marked Exs. P1 to P22 and produced Mos. 1 to 5.

4. The defence of the accused is one of total denial. It is his case that his brother was contesting against one Puttegowda in the panchayat elections. The complainant-PW1 being an employee of the said Puttegowda, filed a false case against him. He has not examined any defence witnesses nor produced any documents in support of his case.

5. The trial Court, after hearing the prosecution and the defence, came to the conclusion that the evidence led by the prosecution is not sufficient to hold that the accused is guilty of any of the charges levelled against him. Therefore the trial Court passed an order of acquittal. Being aggrieved, the State is in appeal.

6. We have heard Sri P.M. Navaz, learned Addl. SPP and Sri Arun Shyam, learned counsel for the accused. We have perused the materials on record.

7. It is submitted by the learned SPP that the material placed on record indicates that the victim CW3 could not be examined since the doctors have opined that she was mentally retarded and dumb and hence the learned Addl. S.P.P. fairly submits that the material placed on record by the prosecution does not lead to the conclusion that the accused is guilty of offence under Section 376 IPC. However, he submits that the offence under Section 368 IPC is clearly made out from the materials on record so also under the Indian Arms Act. Therefore, we do not enter into any discussion regarding suitability or otherwise for an order of acquittal passed by the learned Magistrate insofar as offence under Section 376 of IPC is concerned.

8. He further submits that the evidence of PW1 the father of victim and PWs. 4 to 8 clearly establishes that the victim was in the company of accused from 31.8.05 to 5.9.05 and in res