Shamsher Bahadur, J.
1. This is an appeal by Bhajna who has been sentenced to one year's rigorous imprisonment under Section 366, Indian Penal Code for having enticed Jarnail Kaur, a married woman, on 12th November, 1959, from village Pandori Jagir, where she was residing in her parents' house.
2. Jarnail Kaur, whose age has been found to be 16 years by the learned Sessions Judge, is the daughter of Nazir Singh who is serving in the Army. She is a married woman, but she quarrelled with her husband after having lived with him for about a year. She came to live with her brothers and mother at Pandori Jagir village a few months before the present occurrence.
3. At about 7.00 p.m. on 12th November, 1959, Jarnail Kaur had gone to the fields to answer the call of nature. She was accosted by the appellant Bhajna and Sohan Singh. Bhajna is a servant of Sohan Singh and Sohan Singh is related as uncle to Jarnail Kaur. Sohan Singh and Bhajna told Jarnail Kaur that though she had come away from her husband after a quarrel they would arrange for another match for her and wanted her to accompany them. She readily agreed to accompany Sohan Singh and Bhajna who took her to village Gurre to which village the appellant belongs. Before proceeding to village Gurre both the appellant and Sohan Singh raped her. Before reaching village Gurre, near the cotton fields, she was again subjected to rape by both Sohan Singh and the appellant. She was then taken to the house of Bhajna in village Gurre where she was kept for about five days. During this period Charan Kaur and Harbans Kaur, mother and sister respectively of Bhanja appellant, kept her company. From village Gurre the appellant Bhajna, Charan Kaur, and Sohan, took her to village' Kandhola and from there to village Kangniwal. Ultimately she was brought to Jullundur where she was asked to sign a document which, she was told, was an application for maintenance against her husband. She then raised a noise on which the appellant Bhajna and Sohan Singh ran away. She and Charan Kaur were then apprehended by the police before whom she narrated her story. She was subsequently placed in a rescue home from where she was taken before a Magistrate, Mrs. Gill, who recorded her statement.
4. Sohan Singh, Bhajna appellant, Charan Kaur and Harbans Kaur were prosecuted under Sections 363, 660 and 376 of the Penal Code. The learne'd Sessions, Judge has acquitted Sohan. Singh, Charan Kaur and Harbans Kaur, on the ground that the statement made by Jarnail Kaur has not been corroborated as against them. The learned Judge, however, convicted the appellant Bhajna under Section 366 of the Indian Penal Code. As she was a consenting party to the rape no conviction has been recorded against the appellant on that Count.
5. From the order of conviction under Section 366 of the Penal Code Bhajna appellant has preferred this appeal which has been argued by Mr. B.D. Mehra. There is no controversy now about the age of Jarnail Kaur. Whereas according to the defence she was 19 years of age, the prosecution has adduced evidence to show that her age was 16- After consideration of the evidence, the learned Sessions Judge has come to the conclusion that the age or Jarnail Kaur was 16 years in November, 1959, when she was kidnapped.
6. The argument of the learned Counsel is therefore addressed only on ths question whether the offence under Section 366 has been made out. Mr. Mehra has in the first instance, argued that the reason which impelled the learned Sessions Judge to hold that the case against the accused other than the appellant has not been established for want of corroboration also holds good in the case of Bhajna. Truly speaking there is not much of corroboration in this case.
The main events on which reliance has been placed by the prosecution have been related by Jarnail Kaur herself as P. W3- It is only when Santa Singh, who is a clerk in some office at Jullundur and a brother of Jarnail Kaur, interested himself in this affair that the Panchayat was convened in which Sohan Singh promised to produce the girl within a few days. It appears that when Jarnail Kaur was missing her brother Mohan got into touch with his brother Santa Singh at whose instance the Panchayat was convened. Broadly speaking, the findings of the learned Sessions Judge are that Jarnail Kaur willingly stayed in the house of Bhajna in village Gurre and her stay there could not be stigmatised as illegal confinement by the mother and sisters of the appellant. The learned Judge rightly came to the conclusion that she was a willing party in the whole affair. In the view of the learned Judge Jarnail Kaur was a woman of the world and had a mature understanding. His finding that she must have understood the intention of the accused when she went with them from village Pandori Jagir to village Gurre seems to be quite accurate.
It is important to remember that after she had been raped in village Pandori Jagir by Sohan Singh and the appellant there could not have been any doubt left in her mind about the intention of the persons whom she was accompanying, and on her own showing readily. The learned Sessions Judge has rightly concluded that there was no question of any enticement or misrepresentation regarding the proposal which Sohan Singh and the appellant are said to have made that they would get her married in a good family.
7. These findings of the learned Sessions Judge with which I am in complete agreement do not, in my view, lead to an inference of guilt under Section 366 of the Indian Penal Code. The gist of the offence is that the accused person should kidnap or abduct a woman for the purposes mentioned in Section 366 by compulsion. There is not a scintilla of evidence on the record to show that Jarnail Kaur was in any way compelled either to accompany the appellant or to subject herself to illicit intercourse with the transgressors. A mere suggestion that the appellant and Sohan Singh would get her married in a good family cannot be said to constitute any pressure on her to do something against her will. In a Division Bench of the Calcutta High Court in Biswanath Ghosh v. State : AIR1957Cal589 the position was thus stated at p. 591:
It thus follows that although there was evidence in the case regarding the minority of the girl which was proper evidence to go to a jury, there was complete absence of evidence regarding another essential ingredient of the offence, namely, the taking of the girl by the petitioner or of the active participation of the accused in the girl's leaving her guardian's house.
In the circumstances it was held by the Calcutta High Court that no offence under Section 366 of the Indian Penal Code had been made out. The facts of the present case are almost analogous to those in the Calcutta case. Jarnail Kaur is no doubt a. minor for the purposes of Section 366 of the Indian Penal Code5 but it is apparent from her evidence that she was a willing party throughout. It is not the ease of the prosecution that she had been taken away from her brothers' house against her will or under any misrepresentation. Plainly, it was not a case of enticement. Rape was committed on her before she was actually moved from the precincts of village Pandori Jagir. She was a willing party to this rape and she showed her readiness to accompany the appellant to his village Gurre.
8. In these circumstances, it is not possible to sustain the conviction of the appellant. The appeal accordingly must be allowed and the conviction and sentence set aside.