Point of Law: An offence under Section 363 of IPC attracts punishment – “whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

JUDGMENT :

T.G. SHIVASHANKARE GOWDA, J,

The State has challenged the Judgment of acquittal dated 28.02.2019 passed in Special Sessions Case No.18/2017 by the learned II Additional District and Sessions and Special Judge, Dharwad (for short, 'the Trial Court').

2. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.

3. The brief facts of the case are that, P.W.2 is the victim in this case, she is the daughter of P.W.1 and 7. The victim and her parents were residents of Bassapur village of Navalgund Taluka. The victim was born on 20.02.2000. In the year 2016, she was studying first year P.U.C. in Gadag Co-operative Textile Mill Independent Pre-University College, Hulakoti, which is situated 20 Kms away from her village. The victim used to attend the college by traveling in local bus. While she was attending the college, the accused herein, who is also a resident of Bassapur village, used to tease her, trouble her, demanding her to accompany and spend time with him. Inspite of she refusing, he did not stop it, created such a situation that she has to succumb to his pressure. With a fear she did not reveal it to her parents. On 24.09.2016, though was a Sunday, the accused insisted the victim to come out of her house on the pretext of special class in the college. In obedience of the dictum of accused, on 25.09.2016 at about 8.00 a.m. the victim left the house informing that she is attending special class in the college. When she met the accused, he took her in the Bus to Mangaluru, thereby kidnapped her from the lawful custody of her parents, kept her in the house of P.W.22- Shekavva Chindiya and where accused has forcibly committed sexual intercourse against her.

4. Since the victim did not return back to the home on the evening, her parents made a search here and there, they could not trace her. P.W.1 presented a missing complaint before the Police suspecting the hands of the accused and set the law into motion at Annigeri Police Station in Crime No.151/2016. Later, whereabouts of the victim as well as accused was traced out at Mangaluru. On 14.10.2016, accused brought the victim to the Annigeri, dropped her near bus stand and escaped from the spot. The victim reported to the Annigeri Police, divulged the details of accused kidnapping her, taking her to the house of P.W.22, where committing sexual assault against her. Hence, on 14.10.2016, the accused was arrested and subject to judicial custody till 14.12.2016. P.W.20-Diwakar Payaka, CPI of Navalgund Circle has investigated the case and filed the charge sheet.

5. On receipt of the charge sheet, the learned Special Judge, Dharwad has taken cognizance for the offences punishable under Sections 363, 366 and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act, 2012’) and secured the presence of accused for trial. The accused pleaded not guilty of the charges. The prosecution examined P.W.1 to 22, marked Ex.P.1 to 46 and M.O.1 to 11. The accused was questioned under Section 313 of Cr.P.C. On behalf of accused one witness was examined as D.W.1 and Ex.D.1 to 5 were came to be marked. After hearing both sides, the impugned Judgment came to be passed acquitting the accused of the charges. Aggrieved by the Judgment of acquittal, the State has preferred this appeal on various grounds.

6. It is the contention of Sri V.M.Banakar, learned Additional S.P.P. that the prosecution has placed the evidence explaining that the victim was a minor, the Trial Court inspite of accepting it ignored the principles of law that a person cannot remove a minor from the lawful custody of her parents without their consent and by virtue of it, the very ingredients of the offence under Section 363 of IPC has been explained. The evidence spoken by the P.W.2 take supports from her parents P.W.1 and 7. The medical evidence through P.W.13 did explain that the victim was subjected to sexual assault. The quality