1. This is a criminal appeal argued by counsel on behalf of Girdhari Lai, and on behalf of the other four accused there is a jail appeal. The five accused were concerned in the kidnapping of a minor girl, Mt. Dip Chandi, aged 14 years, who is married and who lived in Garhwal. She quarrelled with her husband and started to go to the house of her sister. When she was on her journey the accused Gurthiaru took her partly by force and partly by deception to his house and kept her confined there for two months. Afterwards he took her to the house of his relation Asa, appellant, in another village, and these two accused took her to Kotdwara and on the way they were met by Bhadwa, appellant. From there they took her by rail to Hardwar. At Hard-war the evidence of a witness, P.W. 12, Ghansham, is that he saw the two appellants Girdhari and Ram Chandar negotiating for the purchase of this girl from the appellants Gurthiaru, Bhadwa and one accused, Badru. The woman was crying and the witness asked her what it was about and she told him her story and said that three of the accused had kidnapped her and were selling her to Girdhari and Ram Chandar for Rs. 300 and that she was to be taken to the Punjab. The witness remonstrated with Girdhari and Girdhari told him that he was not a police officer and should not interfere. The witness then went to the police outpost and told the head constable. The party however of the accused and the woman left by another station and went to Dehra Dun by train. They were detained at Raiwala station by the police and the enquiry began with a report from the woman. Learned Counsel for the appellant Girdhari has not been able to show that the finding of the Sessions Court was incorrect, and it appears to me that the evidence on which the judgment is based warrants the finding of the Sessions Court. Argument was made that the conviction of Girdhari under Section 372, Penal Code, is incorrect and that that section would apply only to prostitutes, whereas the woman in question was taken as a mistress and not as a prostitute. It appears to me that the section in question does not involve the distinction placed upon it by learned Counsel. The section penalises the selling of a woman under the age of 18 years with intent that such person shall be employed or used for the purpose of prostitution or illicit intercourse or for any unlawful or immoral purpose. In the present case there is no doubt that to sell a woman as a mistress comes within the section as this is an immoral purpose. The woman in question was also a married woman; so any intercourse with her would be immoral. Learned Counsel referred to an earlier ruling reported in Empress of India v. Sri Lal (1875-80) 2 All. 694 (F.B.), in which it was held that Section 372, Penal Code, would not apply to the facts of that case. In that case certain unmarried girls were given in marriage for a consideration with the representation that they were girls of a higher caste. Their husbands were deceived by this representation, but, as the Court held, it could not be said that the girls were sold for any unlawful or immomoral purpose. Reference was also made to Emperor v. Ewaz Ali A.I.R. 1915 All. 390. In that case the Court held that one appellant Bwaz was wrongly convicted because the woman had accompanied him of her own free will and he had not taken the woman from lawful guardianship. As regards the other four appellants the Court held that they were rightly convicted under Section 372, Penal Code, on the finding that they had disposed of a married girl for a consideration in order that she should be married again. The ruling therefore is against the learned Counsel for the appellant. I consider that Section 372, Penal Code, was rightly applied. In the case of the appellant Girdhari the correct section is not Section 372 which is for selling a minor, but 373, which is for buying a minor for the same purposes. As regards sentences it does not appear to me that the sentences imposed are at all severe.
2. Accordingly I dismiss these appeals with the exception that in the case of Girdhari I alter the conviction from Section 372/109, Penal Code, to Section 373, Penal Code, and I maintain the sentence of 3 years, rigorous imprisonment on Girdhari. Girdhari will surrender to his bail.