P.N. Bakshi, J.
1. Lal Mohammad and 9 others were sent up for trial for an offence of kidnapping a minor girl Km. Shivpata. In the first week of August, 1966, from Basuha. Hamlet of village Kachnapurwa, Police Station Colonel-gani, district Gonda. from the lawful guardianship of her aunt Smt. Bitto and also for keeping her wrongfully confined and concealed. The trial Court found Lal Mohammad and Smt. Gaffora guilty under Section 363. Indian Penal Code and convicted them to rigorous imprisoment for three years. They were acquitted for the charge under Section 366, Indian Penal Code, Shaukat and Siddiq son of Ramzan were found guilty under Section 368 read with Section 109. I.P.C. and sentenced to rigorous imprisonment for three years. They were acquitted under Section 366. Indian Penal Code Mustafa Smt. Sahoora. Griftar and Smt. Sona were found guilty under Section 368. Indian Penal Code and were sentenced to three years' rigorous imprisonment. The charge under Section 366. Indian Penal Code filed against Griftar and Mustafa, No case was made out against Abdul, Siddiq son of Lai Mohammad under Sections 366 and 368 read with Section 109, Indian Penal Code. They were, therefore, acquitted of these charges.
2. Criminal Appeal No. 41 of 1968 was preferred by Lal Mohammad, Smt. Gafoora. Shaukat. Mustafa. Smt. Sahoora and Siddiq before the Temporary Civil and Sessions Judge. Gonda. Criminal Appeal No. 42 of 1968 was preferred by Griftar and Smt. Sona before the aforesaid learned Judge. By judgment dated 11.10.1968 the Civil and Sessions Judge allowed Criminal Appeal No. 41 of 1968 and acquitted all the accused for the offences for which they had been charged. The conviction of Griftar and Smt. Sona was, however, upheld. Both these were found guilty under Section 368, Indian Penal Code and their sentence was also maintained by the Civil and Sessions Judge.
3. This revision application has been filed by accused Griftar and Smt. Soria.
4. It is not necessary to go into the detailed facts for the purpose of deciding the present revision application. The ground on which the judgment of the Court below is assailed is that even on the findings recorded by the lower appellate Court no offence under Section 368, Indian Penal Code has been made out. It is submitted that for an offence under Section 368. Indian Penal Code two essential ingredients must be present:
1. That the persons should be kidnapped; and
2. That the accused should have the knowledge that the person whom he conceals or confines has been kidnapped or abducted.
5. Learned Counsel for the applicants urges in ground No. 3 of this revision petition that there is no evidence on the record to prove that the applicants had knowledge of the alleged kidnapping or abduction and their conviction is not maintainable in law under Section 368 I.P.C.
6. I have perused the judgments of the Courts below and have also heard the learned Counsel for the parties.
7. The lower appellate Court has found the offence of kidnapping not proved. He has thus acquitted Lal Mohammad and five others as mentioned above. So far as the applicants were concerned he has convicted them under Section 368, Indian Penal Code. On three grounds:
1. That the applicants and the girl Km. Shivpata belonged to different communities;
2. That the girl was not allowed to move about; and
3. That the girl was of tender years and both Griftar and Smt. Sona were active in keeping her confined at that place.
8. From the above facts the Sessions Judge has come to the conclusion that an inference can be drawn that Griftar and Smt. Sona wrongfully confined the girl Ku. Shivpata knowing that she is kidnapped or abducted girl. In my opinion, the view taken by the Civil and Sessions Judge. Gonda. is wholly incorrect and illegal. Learned Counsel for the applicants has referred me to two cases, namely. (1) Emperor v. Zamin AIR 1932 Oudh 28 : 33 Cri LJ 275 and (2) Nanku v. State 1954 All WR (HC) 296. In support of his submission that unless it is proved that the accused had knowledge that the girl was kidnapped, they cannot be held guilty on mere presumptions. The facts of the cases mentioned above were similar to the facts of the present case. In 1954 All WR (HC) 296. the accused and the girl, alleged to have been wrongfully confined, also belonged to different communities. The accused could not give any satisfactory explanation of the presence of the girl with him. Kidnapping of the girl had also not been satisfactorily established in that case. All these findings recorded in the afore-mentioned ruling are also present in this revision application. Km. Shivpata belonged to a different community. No explanation was given by the accused-applicants for her presence with them. The offence of kidnapping had not been proved and six of the accused have been acquitted. There was no direct evidence on the record as admitted by both the parties to prove that the applicants had any knowledge of the alleged kidnapping or abduction. In view of the above findings it is not possible to presume knowledge on the part of the accused applicants to convict them under Section 368 I.P.C. I therefore, hold that the conviction of the applicants, was illegal on the findings recorded by the Courts below.
9. The conviction and sentence passed upon them is set aside.
10. The accused are on bail. They need not surrender.