O.P. Trivedi, J.
1. Appellants Bhagwat, Bhagwan Das, Kanhaiya Lai, Sukhpal, Bhabhuti, Daya Ram, Mewa Lal Mata Prasad, Hira Lai and Havaldar have been convicted by the Assistant Sessions Judge, Gonda for offences punishable Under Sections 147, 452/149 and 366/149, Indian Penal Code. Each of them has been sentenced to rigorous imprisonment for five years Under Sections 366/ 149, IPC to two years' rigorous imprisonment Under Section 452/149, Indian Penal Code and to rigorous imprisonment for one year Under Section 147, Indian Penal Code. The sentences have been directed to run concurrently.
2. According to the prosecution case Shambhu Dutt deceased had a daughter by name Smt. Rajpati. This lady was married to appellant Bhagwan Das son of Ram Sunder about 22 years ago. She lived at the house of her husband for 10 or 12 days after which she was ill-treated and turned out from his house by Bhagwan Das. Srimati Rajpati thereafter began to live at the house of her father Shambhu Dutt who married her about 13 or 14 years before the incident to one Ram Sagar. At the time of incident Smt. Rajpati was living at the house of Ram Sagar. About a month before the occurrence Shambhu Dutt died issueless leaving behind about 25 bighas of land which was inherited by his daughter Smt. Rajpati. The marriage of Smt. Rajpati with Bhagwan Das not having been formally dissolved he began to cast avaricious eyes on this land which was inherited by Smt. Rajpati from her father. A plan was hatched by Bhagwan Das and his father Ram Sunder with 15 or 16 other persons including the present appellants to abduct Smt. Rajpati forcibly so that she may be compelled to declare before a court of law that Bhagwan Das was her lawful husband and by such declaration Bhagwan Dass may be able to obtain the land of his deceased father-in-law. Accordingly the appellants along with Ram Sunder who is since dead and 7 or 8 other persons formed an unlawful assembly and went armed with lathis and sticks to the house of Ram Sagar at about 9 a. m. on 3rd March. 1966 in Village Theoras. They trespassed into the house of Ram Sagar. Ram Sunder, Bhagwan Das and Sukhpal caught hold of Smt. Rajpati by hands and feet and carried her away for some distance in that position. Attempt of Ram Sagar, Chhedi Ram and other witnesses to rescue Smt. Rajpati was foiled by members of the unlawful assembly by display of weapons. After going some distance the victim Smt. Rajpati was allowed to walk on her legs being surrounded by all the members of the unlawful assembly. She was in this manner brought to the house of Bhagwan Das where she was kept for about two days. She was asked to live as his wife' which she declined to do and she was commanded - by Bhagwan Das to go with him to the court of the District Judge, Gonda, for a declaration that Bhagwan Das was her husband. The third day Bhagwan Das and Ram Sunder set out for the said court along with Smt. Rajpati. In the way some constables happened to pass by to whom Smt. Rajpati disclosed the tale of her misfortune. Bhagwan Das and Ram Sunder deceased wer at this stage apprehended and in due course put to trial. The first report of this incident had been lodged by Ram Sagar on 3rd March, 1966 at 4.30 p. m.
3. All the appellants had pleaded not guilty to the charge framed against them. Bhagwan Das admitted that Smt. Rajpati was married to him 20-22 years ago but denied that she was ever turned out by him. It was alleged that Smt. Rajpati had gone to look after her deceased father during his illness. He denied that there was a second marriage with Ram Sagar. Except him all other appellants imputed their prosecution to false implication.
4. A number of witnesses were examined in support of the prosecution case. No witness was produced for the defence. The question which was canvassed in arguments on behalf of the appellants was that upon the prosecution evidence the charge Under Section 366, Indian Penal Code could not be found made out and indeed no offence was committed by the appellants because the marriage of Smt. Rajpati with appellant Bhagwan Das was never dissolved and therefore no offence was committed even if she was forcibly removed or abducted by him from the house of Ram Sagar. The argument that the facts on record do not make out the commission of an offence punishable Under Section 366. Indian Penal Code appears to be well founded for abduction Under Section 366, Indian Penal Code is punishable if it is done with the intention that the woman may be compelled or with the knowledge that she is likely to be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. Now there is no suggestion in the prosecution case of an intention to marry Smt. Rajpati to any person. There is also no suggestion in the evidence that an attempt at illicit intercourse was made against her. She was the wife of Bhagwan Das so long as the marriage tie was not dissolved and therefore even if there was an attempt at sexual intercourse by Bhagwan Das the same could not be regarded as illicit. Therefore the necessary ingredients of criminal intention or knowledge required by Section 366 were missing in this case. Under Section 362. Indian Penal Code abduction is defined as an act involving the use of force or compulsion or deceitful means to induce- any person to go from any place. No doubt in this case the evidence shows that force was used on Smt. Rajpati to compel her to go from the house of Ram Sagar where she was staying. Therefore the offence of abduction was shown by the evidence to have been committed by the appellants but it is not a substantive offence as kidnapping from lawful guardianship is under the Code, but abduction in itself is only an auxiliary act not by itself punishable but made criminal only when it is done with one or the other intentions specified in Sections 364, 365 and 366, Indian Penal Code. Section 364 is not attracted in this case as it is not suggested that the abduction was with the intention of committing murder. A question arises whether an offence Under Section 365, Indian Penal Code was made out against all the appellants or any one of them. Section 365 reads:
Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
To my mind it is only Bhagwan Das who upon the proved facts could be found guilty of an offence punishable Under Section 365, Indian Penal Code for after abduction Smt. Rajpati was kept lodged at the house of Bhagwan Das. After Smt. Rajpati had reached the house of Bhagwan Das, her former husband, evidently the other members of the unlawful assembly except perhaps Ram Sunder, deceased father of Bhagwan Das, dispersed. One of the submissions on behalf of Bhagwan Das was that even Bhagwan Das could not be held guilty Under Section 365, Indian Penal Code because there was nothing to suggest in the evidence of Smt. Rajpati or any other witness that she was subjected to wrongful confinement during the period that she remained at the house of Bhagwan Das. No doubt there is no suggestion in the evidence of Smt, Rajpati of any actual physical restraint having been placed on her movements by Bhagwan Das in that period but to support charge of wrongful confinement proof of actual physical restriction is not essential. It .is sufficient if the evidence shows that such an impression was produced on the mind of the victim as to create a reasonable ap- prehension in his or her mind that he or she was not free to depart and that he or she would be forthwith seized or restrained if he or she attempted' to do so What is important in such cases is reasonable apprehension of the use of force rather than its actual use. Srimati Rajpati ought to have realised after her talk, with Bhagwan Das that she had been abducted forcibly for the purpose of securing from her a declaration before a court at Gonda in favour of Bhagwan Das so that he may be able to inherit the land left by her deceased father. It should then have been apparent to her that if she attempted to leave the house of Bhagwan Das before completion of this object of abduction she would be seized immediately and restraint put on her movements. In that view of the law to my mind the ingredients of wrongful confinements must be found to be present there and the element of secrecy in the wrongful confinement contemplated by Section 365, Indian Penal Code was also apparently present because Ram Sagar and others who were interested in rescuing Smt. Rajpati had no means to know the place of her confinement. While therefore there is no difficulty in holding that Bhagwan Das is guilty of an offence punishable Under Section 365, Indian Penal Code there is difficulty in holding the other appellants also guilty of an offence punishable under that section. The reason is that the other appellants can be held guilty Under Section 365, Indian Penal Code only vicariously and not directly if it can be found that wrongful confinement of Smt. Rajpati at the house of Bhagwan Das formed the common object of the unlawful assembly of which they were members or if it is possible to impute to them knowledge of the fact that commission of an offence punishable Under Section 365, Indian Penal Code was likely to be committed in prosecution of that object.
There is no clear indication that the common object of the unlawful assembly was secret wrongful confinement of Smt. Rajpati for to the appellants and other members of the unlawful assembly Bhagwan Das may not have disclosed the design to obtain from her a declaration with respect to his title to the land before a court of law and that they may have agreed to be members of the unlawful assembly only for the purpose of abduction or wrongful confinement of Smt. Rajpati in the course of abduction. That being so. the other appellants do not appear to me to be guilty Under Section 365, Indian Penal Code. But it is clear that all the appellants including Bhagwan Das formed an unlawful assembly within the meaning of Section 141, Indian Penal Code as from their conduct as revealed in the testimony of Smt. Rajpati the common object of the unlawful assembly was to compel Smt. Rajpati by means of criminal force or show of criminal force to compel her to go from the house of Ram Sagar to the house of Bhagwan Das and in the course of such abduction it was also the common object of the unlawful assembly to J commit wrongful confinement of Smt, Rajpati by putting a restraint upon her movements until she was brought to the house of Bhagwan Das. That being so, all the appellants will be guilty of rioting Under Section 147, Indian Penal Code and were rightly found so. Except Bhagwan Das all the remaining appellants were guilty of an offence of wrongful confinement and are punishable Under Section 342 read with S, 149, Indian Penal Code. The evidence of Smt. Rajpati is that she was bodily lifted by hands and feet up to some distance by Bhagwan Das. Ram Sunder and Sukhpal and thereafter she was surrounded by all the appellants and taken to the house of Bhagwan Das in that condition. This shows that in the course of abduction the offence of wrongful confinement was committed upon Smt. Rajpati punishable Under Section 342, Indian Penal Code.
5. To sum up, the conviction of Bhagwan Das appellant Under Section 366, Indian Penal Code should be altered to one Under Section 365, Indian Penal Code. The conviction of the remaining appellants Under Sections 366/149, Indian Penal Code should be converted to one Under Sections 342/149, Indian Penal Code. Their conviction Under Section 452/149, Indian Penal Code should be confirmed as well as their conviction Under Section 147, Indian Penal Code. To my mind having regard to all the relevant facts the ends of justice will be served if Bhagwan Das is sentenced to rigorous imprisonment for three years Under Section 365, Indian Penal Code and the remaining appellants to rigorous imprisonment for one year Under Sections 452/149, Indian Penal Code and to a like term of imprisonment Under Sections 342/149, Indian Penal Code. The sentence passed Under Section 147, Indian Penal Code calls for no interference.
6. I uphold the conviction of the appellants Under Sections 452/148 and 147, Indian Penal Code. The conviction of Bhagwan Das Under Section 366/149, Indian Penal Code is converted to one Under Section 365, Indian Penal Code and he is sentenced to rigorous imprisonment for three years under that count. His sentence Under Sections 366/149, Indian Penal Code is set aside. The sentence of one year's rigorous imprisonment passed against all the appellants Under Section 147. Indian Penal Code is upheld.
The conviction of all the appellants except Bhagwan Das Under Sections 366/149,, Indian Penal Code is converted to one Under Sections 342/149, Indian Penal Code. The sentence passed against them Under Sections 366/149, Indian Penal Code each of them is sentenced to rigorous imprisonment for one year. The sentence passed against all the appellants Under Sections 452/149, Indian Penal Code is further reduced from two years to one year's rigorous imprisonment. These sentences shall run concurrently. With those modifications in the order of conviction and sentences the appeal stands dismissed. The appellants are on bail. They shall surrender immediately to their bail bonds which stand cancelled.