M.D. Bhatt, J.
1. This is the appeal of the six accused persons against their respective convictions and sentences. All the accused persons have been convicted and sentenced under Section 148 IPC. Then again some of them have been convicted and sentenced under Section 342 IPC and the rest - under Section 341 IPC. Conviction under Section 366, I.P.C. is only against Bondal, Bodram and Gimjarilal. The accused Bedram, has, however, been further convicted and sentenced for the offence under Section 324 (354?) I.P.C.
2. According to the prosecution, in the early hours of the morning of 24th Nov. 1976, prosecutrix Mst. Shantibai aged about 25 years and wife of Banshilal Satnami, had gone out of the village to answer the call of nature. On the way, the appellants-accused Bondal, Bedram and Gunjarilal caught her. bodily lifted her and took her to the house of Bondal where she was wrongfully confined and was not allowed to move out. The appellant-accused Bedram attempted to outrage her modesty during her confinement in the house. She was, however, rescued on the same date by about the night time. Therefore, she lodged the report on the next day morning. After due investigation, the appellants-accused were put up for trial for commission of the offences punishable under Sees. 148, 366, 354. 342/341, IPC. All of them abjured the guilt in the trial Court and contended that they were implicated on false report due to enmity. The trial Court, on the strength of evidence on record, convicted and sentenced the respective accused persons for commission of various alleged offences. Hence now, their present appeal.
3. The foremost point advanced by the appellants' learned Counsel is that conviction of some of the accused persons under Section 366, IPC was bad in law : and as such, unsustainable. It is urged in this connection that the learned Sessions Judge, after the initial commitment of the case to him under Section 209 Cr. P.C., had sent back the case to the Magistrate, for trying the accused persons, only for offences exclusively triable by the latter; and had, thus, discharged these accused persons of the offence under Section 366 IPC. The Magistrate, after taking some evidence, had again committed the case to the Court of Session, who, thereafter, had framed the charge under Section 366, IPC; and after due trial, had convicted some of the appellants-accused of the offence under Section 366 IPC. According to the appellants' learned Counsel, the Magistrate, in the first place was not competent to re-commit the appellants-accused for trial of the offence under Section 366, IPC, inasmuch as, the learned Sessions Judge, by implication, had discharged these appellants-accused, of the said offence : and in the second place, the learned Sessions Judge, having already earlier discharged the accused persons of the offence under Section 366, IPC, was not competent to frame the charge under Section 366. IPC : and, thus, review his own earlier order. Then again, on merits, it is urged that there being two FIRs in the case, as disclosed from the prosecution evidence itself; and the first FIR of the date 24th Nov., 1976 having been suppressed, no reliance could be placed on the latter FIR filed by the prosecutrix on the next day. It is further canvassed, before me that the appellants-accused Nos. 4, 5 and 6 were not liable for any conviction in the absence of any cogent evidence, inasmuch as, they are not found to be incriminated in the FIR and also in the earlier police statements of the material prosecution witnesses. Roznamcha Report (Ex. P-7) is urged to be of no probative value either for corroboration or for contradiction, inasmuch as, Banashilal who had lodged this report, had not been examined, at all, by the prosecution. As regards, the offence under Section 354. IPC, it has been argued that even from the prosecutrix's own evidence, no such offence was made out, at all.
4. I will, at first, take up the question of legality or otherwise, of the committing Magistrate's second and final order, committing the appellants-accused, to the Court of Session, for trial of the offence under Section 366, IPC. The learned committing Magistrate, vide his first commitment order dated 19-2-77 in accordance with Section 209, Cr. P.C., 1975, had committed the appellants-accused for commission of the offences under Sections 366 and 376/511, IPC. After such committment, the learned Sessions Judge, vide his order dated 15-3-1977, passed in accordance with Section 228(1)(a) of the Code, remitted the case to the Chief Judicial Magistrate for trial of the offences under Sections 148, 341. 342 and 354, IPC against the appellants-accused after duly framing the charges in this regard. The learned trial Magistrate thereafter proceeded with the trial on these charges; but, after recording of the evidence of the first witness on the prosecution side viz. of the prosecutrix PW 1 Mst. Shantibai and after considering her evidence, committed the case again to the Court of Session for trial of the offence under Section 306, IPC along with the other offences, vide his Order dated 14-9-71 This fresh commitment of the case to the Court of Session, though again made in accordance with Section 209. Cr. P.C. 1973 was, in fact, in the course of trial, wherein, at the appropriate stage, i. e., after the evidence of the first prosecution witness, he purported to have acted in accordance with Section 323 of the Code.
5. It is no doubt true that in the case, instituted on a police report, the committing Magistrate, while acting under Section 209 of the Code, has to examine that report and the documents mentioned in. Section 207 ibid and to find out whether the facts disclosed in the report, assuming them to be true, make out an offence triable exclusively by the Court of Session, as specified in Col. 6 of the First Sch. of the Code, and in forming the opinion, he has not to weigh the probabilities of the case. He is bound to commit once, it appears to the Magistrate that the offence, as alleged, is triable exclusively, by the Court of Session, Sanjay v Union of India AIR 1978 SC 514 : 1978 Cri LJ 642.
6. The law is also settled that if the Magistrate determines that the offence is exclusively triable by the Court of Session and if it is found by the Court of Session to be wrong, the latter Court may discharge the accused under Section 227 of the Code or remit it to the Chief Judicial Magistrate under Section 228(1)(a) ibid (See Sanjay v. Union of India 1978 Cri LJ 642 (SC) (supra) and Kalimuddin v. State 1977 Cri LJ NOC 261 (Cal). It would thus be seen that the order dated 15-3-77 of the learned Sessions Judge, remitting the case to the CJM for trial under Sections 148. 341. 342 and 354. IPC, had the effect of discharging the appellants-accused of the offences under Sections 330 and 376/511, IPC, for which, they had been initially committed by the committing Magistrate for trial by the Sessions Court. The question is whether, after such remitting of the case to the Magistrate, the latlter could, again, commit the case to the Court Of Session. He would not have been competent to do so, if he had simply recommitted the case to the Court of Session after considering the very police report and the documents mentioned is Section 207 of the Code, which he had examined earlier, at the time of initial commitment. But, the situation in the instant case was obviously quite different, The learned Magistrate, after the remission of the case for trial for the particular offence exclusively triable by him, had started the trial, in obedience of the Sessions Courts order dated 15-3-77. He had proceeded to record the plea of the appellants-accused to the charges as framed by the Sessions Court, and had, thereafter, proceeded to record the evidence of the prosecution witnesses in the trial, it was in the course of trial and after the recording of the evidence of the principal witness viz. the prosecutrix PW 1 Mst. Shantibai that the trial Magistrate has, again, thought it fit to commit the case to the Court of Session for trial of the offence under Section 366, IPC. It was after consideration of the evidence of PW 1 Mst. Shantibai (Ex. D-1) that it had appeared to the Magistrate that the case was one which could be tried by the Court of Session, and it was for this reason that he had acted in exercise of his powers under Section 323 of the Code, to commit the case to the Court of Session, over again, in accordance with Section 209 ibid. The learned Magistrate was fully competent to do so, by invoking the further enabling provisions of Section 323 ibid. It was not on the old material that be had recommitted the case, but it was on the basis of further material i. e. the actual evidence (oral testimony) of the prosecutrix Mst. Shantibai, as recorded by him in the trial, that he had come to hold the opinion that the case was the one which was to be tried by the Court of Session for the offence under Section 366 IPC. The Magistrate's powers under Section 323 of the Code are. thus, found to be wide enough and not circumscribed to any extent, just because of the Sessions Court's earlier remittal of the case under Section 228(1)(a) ibid. It is wrong to contend that after recommitment by the trial Magistrate, the learned Sessions Judge, by framing the charge afresh, under Section 366, IPC, had reviewed his earlier order whereby he had impliedly discharged the appellants-accused of the offence under Section 366, IPC. To use the word 'review'' in such a situation, apparently, is a misnomer. It was not the same old material which the learned Sessions Judge had considered at the time of the framing of the charge, i. e. at the time when he had actually framed the charge under Section 366 IPC. On the earlier occasion when he had remitted the case under under Section 228(1)(a) of the Code, he had simply considered the police report and the documents under S 207 ibid : whereas, at the later stage, when the Magistrate, in exercise of his powers under Section 323 of the Code, had recommitted the case in accordance with Section 209 ibid, the learned Sessions Judge had. again, to consider and to take into account the additional material viz. part of the actual evidence of Mst. Shantibai, as recorded by the trial Magistrate during the trial. Additional material, having thus been considered by the Sessions Court, when the said Court actually framed the charge under Section 366 IPC, the Sessions Court cannot obviously be said to have reviewed its earlier decision. The earlier decision was only on the material in the originally committed case. Thus, there is no substance in the argument of the appellants' learned Counsel that the learned Sessions Judge was not competent to try the case 'or commission of the offence under Section 336, IPC and as such, the Sessions trial consequently is found to be in order, and conviction of the appellants-accused under Section 366, IPC cannot be vitiated on such legal plea, as raised.
7. Now, taking up the case on merits, it. may be observed that the convictions and sentences of the appellants-accused Mohitram. Lakhanlal and Pyarelal under Sections 148 and 341, I.P.C., cannot be sustained. From P. W. 1 Mst. Shantibai's oral evidence, it is found that she knew these three appellants-accused from before, not only by face, but also by name. Even then, they are not found to be specifically incriminated in her FIR, which was lodged on the next day after the incident (Ex. P-1). There is no explanation on her part, as to why, their names had not been specifically mentioned in her FIR. It is also found that P. W. 6 Santram, PW 8 Makhanlal and PW 9 Shashikala who have tried to implicate these three appellants-accused in their evidence in the course of trial, had not implicated them in their earlier statements, recorded by the police under Section 161 of the Code. It is obvious that these three appellants-accused Mohitram. Lakhanlal and pyarelaj had been fictitiously implicated in the alleged offences, as an afterthought. There-force, these three appellants-accused deserve to be acquitted of the offences punishable under Sections 148 and 341, IPC
8. Now, coming to the other three accused Bondal, Bedram and Gunjarilal, they cannot obviously be convicted of the offence under Section 148, IPC, inasmuch as, there could not be any 'unlawful assembly' of these three appellants-accused alone; because the other three appellants-accused having been held to be falsely implicated, have already been acquitted, as stated above. Thus, the conviction of the appellants-accused Bondal. Bedram and Gunjarilal under Section 148, IPC, therefore, cannot be sustained.
9. Now, taking up the case against these three appellants-accused, Bondal, Bedram and Gunjarilal under Section 366, IPC, it may, well, be borne in mind that, to bring the offence within the sweep of Section 366, IPC, there should, not only, be abducting of the woman but it should be with intent that she may be compelled or knowing it likely to be compelled to marry a person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it likely to be forced or seduced to illicit intercourse. There is no allegation regarding compelling Shantibai for any marriage, It is the second part of Section 366 Penal Code which is attracted, for consideration. It is now to be seen whether abduction was made in order that Mst. Shantibai may be forced to illicit intercourse by Bedram or any one or that she had been abducted knowing it to be likely that she will be so forced. Now, the scrutiny of the oral testimony of the prosecutrix PW 1 Mst. Shantibai shows that she had been detained in the house of Bondal throughout the whole day. This house had not remained lonely. On the contrary, all the women-folk of Bondal's family were also there in the house, throughout the whole day, she has stated in her evidence that the two kotwars Go-hani and Gyandas, who had actually rescued her from this house, were duly apprised by her regarding the incident of attempted sexual intercourse by the appellant-accused Bedram. If this were a fact, these Kotwars would have naturally supported her version. Gyandas Kotwar has entered the witness-box as PW 10, and he has clearly contradicted the version of PW 1. Mst. Shantibai that Shantibai had not told him anything whatsoever as to what had happened to her, during the whole period of her detention in the house of Bondal. It is, thus, obvious that Mst. Shantibai is just telling lies in the matter of the accused Bedram's any attempt to commit sexual intercourse with her, during the time of her detention inside Bondal's house. Thus, the offence under Section 366, IPC is not made out against the appellant-accused Bedram and so also against the other two appellants-accused Bondal and Gunjarilal. They, hence, deserve to be acquitted of the said offence.
10. So far as the conviction of the appellants-accused under Section 354, IPC is concerned, this conviction too, cannot be sustained in the absence of any cogent and reliable evidence on the prosecution side. Solitary evidence of PW 1 Mst. Shantibai that her modesty was outraged inside Bondal's house by Bedram is not reliable, worth acceptance, in the absence of any other corroborative evidence. As earlier stated, P. W. 10 Gyandas Kotwar does not corroborate her in this aspect of the matter. He has clearly deposed that Mst. Shantibai had not told him anything either in the matter of attempted sexual intercourse or the outraging of her modesty. The appellant-accused Bedram. hence, deserves to be acquitted of the offence under Section 354. I.P.C.
11. Now, the offence that remains against the appellants-accused Bondal. Bedram and Gunjarilal is the one under Section 342 I.P.C. So far this offence is concerned, there is more than sufficient evidence to hold these appellants-accused guilty of this particular offence. The prosecutrix P. W. 1 Mst. Shantibai has been duly corroborated by her daughter P. W. 9 Shashikala and so also by other witnesses viz. P. W. 6 Santram and P. W. 8 Makhanlal. All these witnesses have consistently and corroboratively deposed that while Mst. Shantibai was going out in the early hours of the morning for easing herself, these three appellants-accused had bodily lifted her and had carried her to Bondal's house where she wag wrongfully confined throughout the whole day. Their evidence equally finds corroboration from the medical evidence of P.W. 13 Dr. Nirmala who had found two minor injuries on Mst. Shantibai's person. These injuries could well be caused while Mst Shantibai was dragged and manhandled for being forcibly taken and for being confined in Bondal's house throughout whole day, Shanghai was rescued from that house later on, the same night. Panchnama Ex. P-8 was prepared in this regard, p. W. 10 Gyandas Kotwar who. is an independent witness has proved this basic fact regarding Mst. Shantibai's rescue from her wrongful confinement. I have no reason to doubt all this credible evidence. Thus, conviction of the appellants-accused Bondal, Bedram and Gunjarilal for commission of the offence punishable under Section 342. I.P.C. is found to be proper calling for no interference.
12. So far as the question of sentence for this offence is concerned, facts and circumstances attending the incident have to be borne in mind. Male members of Mst. Shantibai's family and all the appellants-accused are found to be at loggerheads for sometime past, due to some land dispute. Apart from this, as the evidence has disclosed, the appellants-accused had some grievance against Mst. Shantibai's husband Banshlal who was suspected of some eve-teasing of Bedram's wife, some days prior to the present incident in question. Thus the appellants-accused are not found to be animated with an intent either to commit any sexual intercourse with Shantibai or to outrage her modesty by wrongfully confining her in Bondal's house. Their act of wrongful confinement of Mst. Shantibai only appears to be the act of vengeance to settle their old scores of their mutual disputes, on various counts. In my opinion, in such a situation, sentence of any imprisonment is not called for, and awarding of sentence of fine alone, would appear to meet the ends of justice.
13. In the result, thus, the appeal is partially allowed, both in the matter of convictions and sentences. Setting aside the order of convictions and sentences as passed against the appellants-accused Mohitram, Lakhanlal and Pyarelal of the offences punishable under Sections 148 and 341. I.P.C. they be and are now acquitted of the said offences. Their bail bonds are discharged. Setting aside the order of conviction of the appellant-accused Bedram under Section 354. I.P.C. he is acquitted of the said offence. Further setting aside the order of convictions and sentences passed against the three appellants-accused Bondal, Bedram and Gunjarilal under Sees. 148 and 366, I.P.C. they are, all, acquitted of the said offences. Convictions of these three accused Bondal, Bedram and Gunjarilal Under Section 342, IPC are however, maintained. Modifying the order of sentence as passed against these three appellants-accused for the offence under Section 342, I.P.C. it is ordered instead that each of these three appellants-accused Bondal, Bedram and Gunjarilal. be and are now sentenced to pay the fine of Rs. 300/- each; and in default of fine, to undergo three months' R. I. Fine amount be paid within a month from today, failing which, these appellants-accused be remanded to the judicial custody, to undergo the sentence of imprisonment, in default of fine, Out of the fine amount, if realised, Rs. 700/- be paid to the wrongfully confined woman viz. Mst. Shantibai, by way of compensation in accordance with Section 357. Cr. P.C., 1973.