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2026 DIGILAW 65 (KAR)

Ashoka S/o Ishwara Naika v. State of Karnataka

2026-01-06

S.VISHWAJITH SHETTY

body2026
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. 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 was got marked by the prosecution through him and his signature in the said document is marked as Ex.P3(a). This witness has stated that Ex.P3 has been issued by him on the basis of the school admission register. During the course of his cross-examination, this witness has stated that he does not know where the victim girl (PW3) had completed her primary education. He has also stated that he does not know who has admitted her in their school. He has stated that he does not know on what basis, the date of birth was entered in the admission register of the school. He has also stated that he does not know who has admitted her in their school. He has stated that he does not know on what basis, the date of birth was entered in the admission register of the school. He has also stated that he does not know whether the date of birth mentioned in Ex.P3 is correct or not. He has stated that there are no definite documents in the school regarding the date of birth of the students. He has admitted that earlier there was a practice of making wrong entries with regard to the date of birth to get benefits from government schemes. From a reading of the deposition of PW7, it is apparent that the said witness had no information as to on what basis the date of birth of the victim girl was entered in the admission register of the school and who had given the said information to the school authorities. 6. In the case of Birad Mal Singhvi vs. Anand Purohit , 1988 Supp SCC 604 , the Hon'ble Supreme Court has held that entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. In paragraph Nos.14 and 15 of the said judgment, it is observed as follows:- "14. … If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. … The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. … 15. … 15. … Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. … The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined…" (Emphasis supplied) 7. In the case of P. Yuvaprakash vs. State , (2024) 17 SCC 684 , the Hon'ble Supreme Court has observed that to determine the age of the victim, who is a minor, the Court is required to take recourse to the steps indicated in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. In paragraph No.14 of the said judgment, the Hon'ble Supreme Court has observed as follows:- "16. In paragraph No.14 of the said judgment, the Hon'ble Supreme Court has observed as follows:- "16. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the examination board concerned has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the authority concerned i.e. Committee or Board or Court." 8. The High Court of Madras in the case of Suramani and Others vs. State , 2011 Crl. L.J. 2871 has held that to prove the charges for the offence punishable under Section 363 of IPC, the evidence of Head Master of the School on the basis of the entries found in the school records is not sufficient in the absence of production of birth certificate and the original school records containing the entries. 9. In the case on hand, the original of the school register was not summoned by the Trial Court. In addition to the same, even according to the prosecution, the victim girl was studying in I year PUC when the alleged incident had taken place. Therefore, it is apparent that she had completed her SSLC and therefore, the prosecution could have produced the SSLC Marks card/Matriculation Certificate of the victim girl to prove her age. The Trial Court taking into consideration the oral evidence of the witnesses and also Ex.P3 has held that the prosecution had proved that the victim girl was a minor as on alleged date of incident. In my considered opinion, the said approach of the Trial Court was erroneous and cannot be sustained in view of the law laid down by the Hon'ble Supreme Court in the case of P. Yuvaprakash (supra) and also in the case of Birad Mal Singhvi (supra). 10. In addition to the same, the victim girl who was examined as PW-3, has stated during the course of her examination-in-chief that on the alleged date of incident, petitioner had telephoned and requested her to come out along with him. 10. In addition to the same, the victim girl who was examined as PW-3, has stated during the course of her examination-in-chief that on the alleged date of incident, petitioner had telephoned and requested her to come out along with him. At about 11.00 p.m., he came near her house in a motor bike and since he was her relative and acquaintance, she had opened the door of the house and thereafter had sat in his motor bike and had gone along with him. She has also stated that she had called her mother and sisters and had informed to them about her whereabouts and had stated to them that she was safe. 11. Mother of the victim who is examined as PW-4 in the present case has not completely supported the case of the prosecution, and therefore, she was treated as hostile witness. After the victim girl and the petitioner were traced together in Bengaluru in their relatives house, they were brought back to their village and subjected to medical examination. Ex.P-7 is the medical certificate of the victim girl and in the said document, it is clearly stated that victim girl was not sexually assaulted. Ex.P-8 is the medical examination report of the petitioner. Perusal of the said document would go to show that petitioner has given the history to the doctor who had examined him, stating that the victim girl had requested him to take her to Bengaluru since she intended to join a garment factory and accordingly he had taken her to Bengaluru and in the meanwhile, her relatives had filed a criminal case against him. 12. The Trial Court has failed to appreciate the aforesaid aspects of the matter and has erred in convicting the petitioner for the offence punishable under Section 363 IPC, notwithstanding that the prosecution had miserably failed to prove that the victim girl was a minor as on the alleged date of incident. Under the circumstances, I am of the opinion that the impugned judgment and order of conviction and sentence passed by the courts below cannot be sustained. Accordingly, the following order. 13. The criminal revision petition is allowed. 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. Under the circumstances, I am of the opinion that the impugned judgment and order of conviction and sentence passed by the courts below cannot be sustained. Accordingly, the following order. 13. The criminal revision petition is allowed. 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, which is confirmed by 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, are set-aside. The petitioner is acquitted of the offence for which he was charge sheeted. Bail bonds if any, executed by the petitioner stands cancelled and fine amount deposited by him shall be refunded to him.