Raghubar Dayal, J.
1. Jeewan, Mukhram and Baru appeal against their conviction under 8.366, Penal Code and sentence of five years' R.I .. for having abducted Mt. Shanti from village Rohana on 24th September 1947.
2. Mt. Shanti used to live with her father Manphool in village Rohana. She was recovered from the house of Baru, appellant, on the evening of 29th September 1947. Baru gave out that he had purchased her for Ks. 800 from Mukhram. Mt. Shanti alleged that she had been forcibly lifted and carried by Mukhram and Jeewan from a grove of village Rohana, that Baru met Jee-wan and Mukhram 'after a mile Cr so and that Jeewan then returned to Robana and Baru and Mukhram took her to village Lohari where they reside, The village people held a Panchayat and seemed to have gone into the matter thoroughly, Manphool, the father of the girl, was called the next mCrning. On 80th September, they again discussed the matter and finally Baru, Mukhram and Mt. Shanti were sent to police outpost at Charthawal with the Chaukidar and Mt. Shanti lodged a report there mentioning therein practically what has been stated above about the incident connected with her being taken away.
3. Both Mukbram and Jeewan deny the allegations against them and allege their implication on account of enmity. It may be said here that no prosecution witness was questioned about the alleged enmity and no evidence has been led in defence to establish it.
4. Baru stuck throughout to the earliest statement he bad made that he had purchased Mt. Shanti from Mukhram for rs. 800.
5. Dr. Tandon, who examined Mt. Shanti, expressed the opinion that she was used to sexual intercourse, that she was about 14 Cr 16 years old and that there was no sign of recent injury on her private parts. It is therefore clear that Mt, Shanti was an immoral girl.
6. The evidence in the case against these appellants consists mainly of the statements of Mt. Shanti and Balwant Singh. There are the statements of Shera and Chitermal about what Mukhram stated at the Panchayat. That state-ment is of a confessional type and is inadmissible because all the six Panohes belonged to Special Constabulary. It appears that they were probably made special constables under 8,17, Police Act. Any way whether they were special constables Cr they belonged to Special Armed Constabulary, one branch of the police force in this province, they were police officers and therefore any confession made to them becomes inadmissible.
7. Mt. Shanti statements about her never having had sexual intercourse Cr about her being taken away by force by Jeewan and Mukhram do not appeal to as as true statements in the for of the observations of the doctor. She re-mained at Baru's place for about a week and does not appear to have utilised any opportunity to give out that she was there against her will. Balwant Singh met her on the way and recognised her. She, however, denies that Balwant Singh spoke to any of the persons who were accompanying her. But Balwant Singh states that he enquired from Jeewan and was told that the girl was going to her relations. He further states that the girl was going of her own accord, that nobody was dragging her and nobody was holding her mouth. In these circumstances we are of opinion that Mt. Sbanti was probably a willing party and had accompanied Mukhram and Jeewan willingly.
8. There is, however, no reason to disbelieve Mt. Shanti's statement about the persons who look her from Rohana to Lohari. She has no enmity with any of these appellants. She must be telling true names of the persons who accompanied her. We believe her statement to the effect that Mukhram and Jeewan accompanied her from village Rohana and that Baru joined Mukhram on the way. Balwant Singh corroborates this statement when he says that he saw all the three appellants with her on the way. He did not know Baru and Mukhram, But he recomand them in Court- Though no formal identification proceedings took place, his statement that they were the persons with her has some corroborative value. We, therefore, hold that Mukhram and Jeewan took her from village Rohana and that Baru joined Mukhram on the way.
9. The offence made out against Mukhram and Jeewan for taking away Mt. Shanti from village Bohana with them would be an offence under Section 363, Penal Code, the offence of taking her out from the guardianship of her father. We do not think that the circumstances of the case justify our inferring the intention which is necessary for an offence under Section 366, Penal Code.
10. Kidnapping is not a continuing offence and therefore, Baru cannot be held to be guilty of kidnapping Mt. Shanti. There is nothing on the record to show that Baru knew that Mt. Shanti was a kidnapped girl. She does not state that she at any time disclosed to him that she had been abducted Cr that she had come without the consent of her father. There is no allegation that anybody else told him so. It is also doubtful that Mt. Shanti was actually confined Cr concealed in the house. There was no necessity for that when, according to our finding, she was a willing person. In the absence of any such evidence Baru cannot be held to be guilty under Section 368, Penal Code. We are, therefore, of opinion that Baru deserves acquittal.
11. Notice was issued to the appellants why their sentence should not be enhanced, it being considered that there should have been sentence of fine as well.
12. We are of opinion that in the circumstances of this case the sentence of five years' R. I. errs on the side of severity and that a sentence of two years' R. I. would meet the ends of justice.
13. We are further of opinion that it is not necessary under Section 363, Penal Code that a sentence of fine must be imposed along with the sentence of imprisonment. What is essential is that a person convicted of such an offence should be punished with imprisonment and should not be punished with fine alone. With the sentence of imprisonment it is open to the Court to impose a sentence of fine as well.
14. Section 363, Penal Code provides that the offence would be punished with imprisonment of either description for a term which may extend to seven years and shall ask be liable to fine. If the legislature had intended that the offence be punished in every case both with a sentence of imprisonment and fine, it had simply to say that the offence would be punished with imprisonment of either description for a term which may extend to seven years and fine. The legislature has used the expression 'shall be punished' when referring to the sentence of imprisonment and has just expressed liability of the accused to a sentence of fine. The Court is, therefore, not bound to sentence an accused to fine in every case.
15. We do not consider the circumstances of this case to justify our Ordering a sentence of fine in revision.
16. We, therefore, allow the appeal of Jeewan and Mukhram, but alter their conviction from Section 366 to Section 363, Penal Code and reduce the sentence of five years R. I. to two years' B. I. Mukhram and Jeewan who are on bail will surrender.
17. We allow the appeal of Baru and acquit him of the offence under Section 366, Penal Code. He will be released forthwith from custody if not required to be detained under any other process of law.
18. We dismiss the revision and notice enhancement is discharged.