Prosecution must provide conclusive evidence of a victim's age to sustain a conviction for kidnapping under Section 363 of IPC; reliance on school records alone is insufficient without additional corroboration.

ORDER :

1. This criminal revision petition under Section 397 read with Section 401 of Cr.P.C. is filed with a prayer to set-aside the judgment and order of conviction and sentence dated 16.11.2015 passed in CC No.27/2009 by the Court of Addl. Civil Judge (Jr. Dn.) and JMFC, Hosanagara and the judgment and order dated 29.06.2016 passed in Criminal Appeal No.287/2015 by the Court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar.

2. Heard the learned counsel for the parties.

3. Petitioner herein was charge sheeted for offence punishable under Section 363 of IPC. It is the case of the prosecution that on 25.11.2008 at about 11.00 a.m., petitioner kidnapped the minor daughter of PW1/Jayappa. Subsequently the petitioner and the victim girl were traced in Bengaluru and brought back to their village. Petitioner, who had appeared before the Trial Court in response to the summons issued to him after the charge sheet was filed in the present case, had pleaded not guilty and claimed to be tried. The prosecution in order to prove its charges against the petitioner, had examined eleven charge sheet witnesses as PW1 to PW11 and got marked nine documents as Ex.P1 to Ex.P9. No material objects were produced and got marked on behalf of the prosecution. On behalf of the defence, no evidence was lead nor was any documents got marked. The Trial Court after recording the statement of the accused as provided under Section 313 of Cr.P.C. had heard the arguments addressed on both sides and vide the impugned judgment and order of conviction and sentence passed in CC No.27/2009 had convicted the petitioner for the offence punishable under Section 363 of IPC and sentenced him to undergo simple imprisonment for a period of two years and pay fine of Rs.5,000/- and in default to undergo simple imprisonment for a further period of one month. The said judgment and order of conviction and sentence passed by the Trial Court in CC No.27/2009 was confirmed in Crl.A.No.287/2015 by the Court of V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar, by judgment and order dated 29.06.2016. Assailing the aforesaid judgment and orders of conviction and sentence, the petitioner is before this Court in this revision petition.

4. Petitioner has been charge sheeted in the present case for the offence punishable under Section 363 of IPC. Section 363 of IPC provides for punishment for kidnapping. The word 'kidnapping' as defined under Section 359 of IPC is of two kinds, kidnapping from India and kidnapping from lawful guardianship. For the purpose of sustaining the charge of kidnapping from lawful guardianship, the prosecution in the present case was basically required to prove that the victim girl was a minor aged below 18 years. The prosecution was also required to prove that the accused had taken the victim from lawful guardianship. Unless the prosecution successfully proves the aforesaid two aspects of the matter, the accused cannot be held guilty for the offence punishable under Section 363 of IPC.

5. In the present case, according to the prosecution, the victim was aged about 17 years as on the alleged date of incident i.e., 25.11.2008. To prove the age of the victim, prosecution has primarily relied on Ex.P3, which is a Certificate issued by the Head Master of Government Pre-University College, Hosanagara, Shivamogga District. To prove the said document, the prosecution had examined Mr. Prakash M. H., the then in-charge Principal of the Institution as PW7. In Ex.P3, the date of birth of the victim girl is mentioned as 05.07.1992. PW7 during the course of his deposition, has stated that at the request of Ripponpet Police Station, Shivamogga, he had issued Ex.P3. The said document wa