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Karnataka High Court
Ashoka vs The State Of Karnataka on 6 January, 2026
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.RP No. 1181 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 1181 OF 2016
BETWEEN:
ASHOKA
S/O ISHWARA NAIKA
NOW AGED 39 YEARS
R/O VILLAGE KANAGODU TALUK
HOSANAGARA, SHIVAMOGGA
DISTRICT - 577 201.
...PETITIONER
(BY SRI J. PRAKASH, ADV.,)
AND:
THE STATE OF KARNATAKA
BY RIPPONPETE POLICE
HOSAQNAGARA TALUK
REPRESENTED BY SPP OF
HIGH COURT OF KARNATAKA
AT BANGALORE, HIGH BUILDING
BANGALORE - 560 001.
...RESPONDENT
Digitally signed
by NANDINI M (BY SRI RAHUL RAI, HCGP)
S
Location: HIGH THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
COURT OF
KARNATAKA SET ASIDE THE JUDGMENT AND ORDER DATED 29.06.2016 PASSED
BY THE V ADDL. DIST. AND S.J., SHIVAMOGGA SITTING AT SAGAR
IN CRL.A.NO.287/2015 AS WELL AS JUDGMENT AND ORDER OF
SENTENCE DATED 16.11.2015 PASSED BY THE COURT OF ADDL.
CIVIL JUDGE (Jr.Dn) AND JMFC, HOSANAGAR IN C.C.NO.27/2009.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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CRL.RP No. 1181 of 2016
HC-KAR
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL 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
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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.
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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.,
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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 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
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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
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by someone else who had no special means of knowledge
of the date of birth, such an entry will have no evidentiary
value. ...
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)
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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. 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
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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
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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
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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. 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
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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.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
DN,KK
List No.: 1 Sl No.: 70
