Point of Law: As per definition of Section 361 of IPC, if a minor was abducted from guardian, it amounts to an offence punishable under Section 363 of IPC.

JUDGMENT :

K. NATARAJAN, J.

1. This appeal is filed by the appellant/accused under Section 374(2) of Cr.P.C for setting aside the judgment of conviction and sentence passed by the II Additional District and Sessions Judge, Kolar dated 02.11.2018 in S.C. No. 21/2017 for having found the accused guilty and convicted the appellant for offences punishable under Sections 363, 376 of IPC and section 6 of POCSO Act.

2. Heard the learned counsel for appellant and the learned HCGP for State.

3. The ranks of the parties before the trial Court retained for convenience.

4. The case of the prosecution is that on the complaint of PW1/Roopamma the mother of victim filed complaint to the police as per Ex.P1 alleging that her daughter went to the school on 24.11.2016 and later she was found missing. After receipt of the complaint, during the investigation they traced the victim girl PW2/victim girl and she was taken to the Chintamani police station, later she was handed over to Kolar Police Station on the point of jurisdiction. Her statement was recorded under Section 164 of Cr.P.C. Thereafter, she was subjected to the medical examination and came to know that the accused had abducted the victim girl in his motorcycle when she was proceeding to home from school and taken her to his relatives house where he sexually assaulted her. After coming to know about the same, complaint was lodged by the mother of the victim. The accused had brought her near Chintamani police station and had left her. Subsequently the accused was arrested on 29.11.2016. After the completion of investigation Police have filed charge sheet against appellant for the offences punishable under sections. 363, 376 of IPC and Section 4 of POCSO Act.

5. The accused was in judicial custody and during the trial the charges were framed for the offences punishable under section 363, 376 of IPC and section 4 of POCSO Act, he has denied the charges. Accordingly, prosecution have called upon to adduce the evidence and the prosecution in all examined 20 witnesses, got marked 29 documents and 11 material objects. After completion of prosecution evidence, the statement of the accused under section 313 of Cr.P.C recorded. The case of the accused was one of the total denial but he has not chosen to enter into any defence. After hearing the arguments the trial court found the appellant guilty for the offence punishable under Sections 363, 376 of IPC and Section 6 of POCSO Act and sentenced to undergo imprisonment for 7 years with fine of Rs.2000/-for the offence punishable under Sections 363 of IPC and 7 years with fine of Rs.5000/-for the offence punishable under Section 376 of IPC and 10 years with fine of Rs.5000/-for the offence punishable under Section 6 of POCSO Act and in default liable to undergo imprisonment for one month, also awarded compensation to the victim. Being aggrieved with the judgment of conviction of sentence the appellant is before this court.

6. Learned counsel for the appellant has strenuously contended the judgment of the trial Court was not correct for the reasons that the charges were framed for the offence punishable under Sections 363, 376 of IPC and Section 4 of POCSO Act, whereas the trial court found the appellant guilty for the offence punishable under Section 6 of the POCSO Act and convicted for 10 years. The charges were framed for lesser offences of Section 4 of POCSO Act, whereas the conviction was held for Section 6 of POCSO Act, which is a major offence, which is not permissible under law. Learned counsel further contented that the evidence of PW2 is not sufficient to prove the guilt of the accused for having sexually assaulted the victim. She has turned hostile in her evidence, she has stated that the accused tried to sexually assault her and not stated the accused has committed any sexual assault on her. In the cross examination she has stated that she has given statement before the police like that but absolutely there is no evidence of PW2 to show she has