MUBARAK Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE appellant was the accused before the court below in the following circumstances. According to the complaint by one Mary, dated 11.11.2005, her daughter, Soumya, aged about 15 years who had gone to school as usual and who should have returned after her tuition classes, had not returned home even by 6:30 p.m. On enquiry, Mary had learnt that her daughter had not attended tuition classes on that day. She had hence lodged the complaint of her daughter missing, with the jurisdictional police. It transpires that later the police registered an FIR, for offences punishable under Sections 363, 365 and 376 of the Indian Penal Code, 1860 (Hereinafter referred to as 'the IPC' for brevity) against the appellant. This is in the backdrop of the accused having contacted the complainant and having informed her that Soumya was with him and that she was going with him to Mysore to his uncle's house. On this information, the complainant is said to have rushed to Mysore, along with her relatives and had found her daughter and the appellant at his uncle's house and had brought her home. The appellant is said to have been arrested on 15.11.2005 and had been remanded to judicial custody. Subsequently, a charge sheet is said to have been filed against the appellant for offences punishable under Sections 363, 365 and 376 of the IPC and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as 'the SC & ST Act' for brevity). The Sessions Judge had then framed charges only for the offences punishable under Section 363 IPC and Section 3(1)(xii) of the SC & ST Act. The accused having pleaded not guilty and having claimed to be tried, the prosecution is said to have tendered evidence of PW -1 to PW -15 and had marked several exhibits. After having recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 and after having heard both the sides, had framed the following points for consideration:

(2.) HAVING heard the learned counsel for the appellant and the learned State Public Prosecutor, it is seen that the relevant witness examined by the prosecution to prove the ingredients of the offence punishable under Section 363 IPC, namely, - 'kidnapping from lawful guardianship' is PW -4, Mary, the mother of the alleged victim and Soumya, the victim herself, PW -9. The age of the victim has not been disputed and she having been found in the house of the uncle of the appellant is also not disputed. It is however, contended that the crucial area of consideration with regard to the facts and circumstances of the case would be to decide whether the alleged victim was "enticed" or "taken" from the lawful guardianship, without the consent of such guardian. In this regard the following circumstances are relevant. PW -4, the mother of the victim has stated thus in her evidence :

(3.) THE Sessions Judge had then framed charges only for the offences punishable under Section 363 IPC and Section 3(1)(xii) of the SC & ST Act. The accused having pleaded not guilty and having claimed to be tried, the prosecution is said to have tendered evidence of PW -1 to PW -15 and had marked several exhibits. After having recorded the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 and after having heard both the sides, had framed the following points for consideration: