EMPEROR Vs. ISMAIL SAYADSAHEB MUJAWAR

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge of Belgaum under Section 307 of the Criminal Procedure Code. The accused was charged with offences under Secs.366 and 376 of the Indian Penal Code and the jury brought in a verdict of not guilty of any offence. The learned Judge had told the jury that it would be open to them to bring in a verdict of simple kidnapping under Section 363, but that in order to justify such a verdict they must be satisfied that the age of the girl kidnapped was under sixteen at the time of the offence. The learned Judge is of opinion that the verdict of the jury was wrong, and that the accused should have been convicted under Section 363 of the Indian Penal Code, and he has, therefore, referred the matter to us.

(2.) If the learned Judge was right in charging the jury that they must be satisfied that the age of the girl at the time of the offence was under sixteen, it is, in my opinion, impossible to say that the verdict of the jury was perverse. The evidence, particularly that of the mother and the doctors, appears to show that the girl was probably just under sixteen at the time of the offence. But the evidence is by no means clear, and I think that the jury was justified in saying that they were not satisfied upon the point.

(3.) There is, however, no doubt upon the evidence that the girl was under eighteen at the time of the offence, and the question, therefore, arises whether in establishing a charge under Section 363 of the Indian Penal Code of kidnapping a minor from lawful guardianship it is necessary for the prosecution to prove that the minor, if a male, is under fourteen years of age, or, if a female, under sixteen. That question is one which I have had to consider more than once, and the answer depends upon whether the definition contained in Section 361 of the Code is to be read into Section 363.