The court reaffirmed that consent of a minor is immaterial in cases of kidnapping under Section 361 IPC, and the prosecution must prove the act of taking or enticing a minor from lawful guardianship without consent.

JUDGMENT

1. Appellant Nos.1 to 3/Accused Nos.1 to 3 have filed this appeal praying to set aside the judgment and order of conviction and sentence dtd. 27/6/2011 passed by the learned Additional Sessions Judge and Fast Track Court, Hassan, in S.C.No.160/2003 c/w. S.C.No.21/2008 wherein the learned Sessions Judge has convicted the appellants for the offence punishable under Sec. 363 read with Sec. 34 of IPC and sentencing them to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10, 000.00 each and in default, they shall undergo rigorous imprisonment for a period of six months. I - Facts of the case

2. It is the case of the prosecution that, on 5/2/2003 at about 5.30 P.M., Accused No.1-Somashekhar @ Somesh along with other accused viz. Accused No.2-Mallesha, Accused No.3-Tammayya @ Chandra, with a common intention, have kidnapped P.W.15-victim forcibly, while she was coming back from the school, near the Coffee plantation belonging to one Sri Narayanamurthy, situated in Eshwarahalli, Belagodu Road and on the same day, during night, Accused No.1 committed rape on the victim and on the next day i.e., on 6/2/2003, she was kept in the house of one Angadi Devaraj-PW14 of Doddahalli, Arakalgudu Taluk and there again, Accused No.1 committed rape on the victim. Hence, PW.1 Smt. E. V. Jayamma, mother of the victim, lodged complaint (Ex.P1) on 6/2/2003 at about 2.00 P.M. before the respondent-Police. Thereafter, PW.11 Puttarajappa registered the case in Crime No.21/2003 for the offences punishable under Ss. 366 and 376 read with Sec. 34 of the Indian Penal Code as per Ex.P.14 FIR. Later, the Investigating Officer visited the spot and drew panchanama, recorded the statements of the witnesses and also of the victim, completed investigation and issued charge sheet against accused Nos.1 to 3.

3. The matter was committed to the Court of Sessions and the learned Sessions Judge framed charge against the accused persons for the offences punishable under Ss. 366, 366A and 376 read with Sec. 34 of IPC. In turn, the accused pleaded not guilty and claimed to be tried.

4. In order to prove its case, the prosecution examined 18 witnesses as PWs.1 to 18, got marked documents as Exs.P1 to P30 and material objects as MOs 1 to 11 and on behalf of the defence, Ex.D1 came to be marked. After completion of the evidence, on behalf of the prosecution, the statements of accused Nos.1 to 3 under Sec. 313 Cr.P.C. were recorded by explaining the incriminating evidence appearing in the prosecution case. The case of the accused was of total denial and accused have not led any evidence. II. Findings recorded by the learned Sessions Judge

5. The learned Sessions Judge considering both oral and documentary evidence on record has recorded a finding that, the prosecution has proved beyond all reasonable doubt that, on 5/2/2003 at about 5.30 P.M., accused No.1- Somashekhara @ Somesh along with other accused viz. accused No.2-Mallesha and accused No.3-Tammayya @ Chandra, with a common intention of kidnapping PW.15- victim, have kidnapped her forcibly, while she was coming back from the school, near the Coffee plantation belonging to one Sri. Narayanamurthy, situated in Eshwarahalli, Belagodu Road.

6. The trial Court recorded a finding that, the prosecution failed to prove that on the same day, during night, accused No.1 committed rape on the victim (PW-15) and on the next day i.e., on 6/2/2003, the victim was kept in the house of one Angadi Devaraj-PW14 of Doddahalli, Arakalgudu Taluk and there again, accused No.1 committed rape on the victim. Accordingly, the trial Court acquitted accused Nos.1 to 3 for the offence punishable under Sec. 366A, 366 and 376 of IPC.

7. The learned Sessions Judge convicted accused Nos.1 to 3 for the offence punishable under Sec. 363 read with Sec. 34 of IPC.

8. Aggrieved by the judgment of conviction and order of sentence passed by the Trial court, accused 1 to 3 have preferred this appeal.

9. Heard the learned co