1. This is an appeal by Ramjilal and Mohanlal against the judgment of the learned Sessions Judge, Jaipur City, convicting and sentencing them under Sections 366 and 366B, Penal Code, to 8 years' rigorous imprisonment under each count. The sentences were made to run concurrently.
2. According to the prosecution version, p. w. 1 Sardar Singh a refugee from the Western Punjab was residing at Hardwar in May 1949. His wife was dead and he had an aged mother and two minor girls, Gyan Kanwar and Mahendra Kanwar, aged 12 and 11 years respectively. It appears that, both these girls were in the habit of preparing floru balls for the fish and offering them for sale at the Har-ki-pedi. On 27-5-1949, accompanied by their grandmother, they had gone there for this purpose, while their father Sardarsingh had gone to the forest to fetch fuel. At about 12 noon, they were returning alone to their residence while their grandmother had stayed behind at the Har-ki-pedi. Ramjilal accused had met them before and given them food and was, therefore, already known to them. He was accompanied by his wife and two children and met them when they were returning from Har-ki-pedi and asked them to accompany him to Jwalapur where they will be taken to the Rani of Jaipur who will give them utensils.
Possibly he knew, they were in trouble for lack of cooking utensils and therefore this was a sufficient inducement for them to accompany him. He engaged a 'Tonga' for the purpose and Ramjilal, his wife and children and the two girls took their seats in it. At Jwalapur, the accused seated the girls below a mango tree, and without being taken to the Rani of Jaipur, they were told that they will be taken to their father and mother. From there, they were seated in a railway train and brought to Lakhsar. There also they were told that they were being taken to their father and mother. From Lakhsar, they were brought to Delhi and finally to Basundra where both Ramjilal and Mohanlal were employed in some mill. Before coming to Basundra, something was mixed by Ramjilal in the food given to the girls and this made them lose their senses. At Basundra, Mohanlal was introduced and the girls were instructed both by Ramjilal and Mohanlal to call Mohanlal their father and Ramjilal their uncle and his wife their aunt. They remained at Basundra for 4 months and were made to do a number of things forcibly. For instance, they were made to change their clothes at the point of knife and directed to wear Dhoti and jumper instead of shirts and Salwars. They were also forced by constant beating to pick up the Hindustani language and speak it instead of the Punjabi language which was their mother tongue. They were kept confined in a house and were not allowed to go out. Then, it is alleged, some one came along and said that since they had picked up the language, they might be taken to Jaipur. Ramjilal, his wife and Mohanlal then brought them to Jaipur and here they were kept confined for three months in a house which was locked up from outside. During this period, both Ramjilal and his wife directed them to state their caste as 'Agarwal' and 'Gotra,'' as Mangal. The person who had seen them at Basundra, saw them again and said to the accused that it will be possible to sell the girls for Rs. 10,000. This, however, did not come off as soon after the police laid a trap for the purpose of arresting the accused. P.W. & Dalchand, Sub-inspector Police deputed P.W. 5 Dhannaram constable to pose as a bridegroom and P.W. 8 Sundarlal as the latter's uncle. Currency notes of the value of Rs. 500 initialled by the City Magistrate were given to Dhannaram for payment as advance. On 7-11-1949 at about 5 P.M. a bargain was struck for the disposal of Gyan Kanwar for the sum of Rs. 8000 and after the currency notes of the value of Rs. 800 had been paid, the accused were promptly arrested and the girls were taken in custody. The first information report was lodged the same day and the accused were challaned under Section 368, Penal Code, on 12-12-1949 in the Court of the City Magistrate but were committed to the Sessions Court to take their trial under that section by First Assistant City Magistrate, Jaipur. The learned Sessions Judge amended the charge under Section 366 by substituting 'abduction' for 'kidnapping' and added a fresh charge under Section 366B, Penal Code. The prosecution produced 9 witnesses, out of whom the principal witnesses are the two girls, P.Ws. 2 and 3. The accused Ramjilai denied having committed the offence and stated that he did not bring the girls from Hardwar to Basundra or from Basundra to Jaipur. His version was that they were known to Sardarsingh, the father of the girls, and the latter had followed him some days after his return to Basundra with the object of securing employment there and whenever he went out of Basundra, he used to leave the girls at the house of the accused. This went on for 2 1/2 months when Ramjilal's services at a mill were terminated and he came to Jaipur and Sardarsingh also accompanied him with the girls. A month before his arrest, Sacdarsingh had gone away leaving the girls at his house and it was during this period that he was arrested. Mohanlal also denied having committed the offence and supported the version of the co-accused Ramjilal. They produced two witnesses in defence. The learned Sessions Judge believed P.Ws. 2 and 3, rejected the defence and convicted and sentenced the accused as stated above.
3. The learned counsel for the accused has submitted in the first instance that the conviction under Section 366B, Penal Code, is wholly unjustified inasmuch as it was never the case of the prosecution that the girls had been imported into Jaipur with intent that they may be or knowing it to be likely that they will be forced or seduced to illicit intercourse with another person. The evidence produced by the prosecution is no doubt confined to the fact that an effort had been made by the accused to compel the girls to marry against their will. The learned Government Advocate concedes the force of this contention and is, therefore, not in a position to support the conviction of both the accused under Section 366B, Penal Code, which is hereby set aside and both the accused acquitted of this offence.
4. So far as the conviction of the two accused under Section 366, Penal Code, is concerned, we propose to deal with the cases against them separately. The reason for treatment of the case in this manner is that according to the contention put forward by the learned counsel for the accused, Ramjilal was the only person who had abducted the girls, if at all, from Hardwar and brought them to Basundra, and Mohanlal was not party to what had been done by Ramjilal previous to the arrival of the girls at Basundra. Since this contention involves a determination of the question whether the case against both the accused stands on the same footing, we consider it expedient to deal with them separately.
5. So far as Ramjilal is concerned, the case against him is fully established on the statements of P.Ws. 8 and 3. The learned Counsel has urged in connection with the statements that the rule of prudence requires that they should be corroborated in material particulars by some other evidence and that unless that is done, it would be dangerous to rely upon it. In Emperor v. Banubai Ardeshir, A. I.R. (30) 1943 Bom. 150 : (44 Cr. L. J. 534 F. B.), a view has prevailed which is contrary to the contention put forward by the learned counsel and we respectfully agree with it. It was held that the rule of practice suggested by the learned counsel in the case had no application to a case of abduction, even though the abduction was alleged to be with intent to seduce a woman to sexual intercourse. This rule, it was held, should be restricted to cases of rape only and should not be extended to other cases of sexual nature. We have carefully examined the statements of the above mentioned witnesses and consider that they are forthright and full of details and ample for the purpose of showing that that the incidents took place as they were narrated. We accordingly see no reason why they should not be believed.
6. The learned counsel, apart from the above aspect of the case, next, put forward certain contentions which are of a technical nature. He urged that for a completion of the offence under Section 362, Penal Code, it was necessary that the accused should compel a parson to go from any place either by force or by deceitful means. The learned counsel urged that in this case, it could not be said that deceitful means had been employed for the purpose of inducing the girls to leave Hardwar. The accused had held out certain promises and they bad fulfilled them and accordingly, it should not be found that they had practised any deceit upon the girls. We are wholly unable to agree with this contention. The expression 'deceitful means' is wide enough to include the inducing of a girl to leave her guardian's house on a pretext. 'Deceit' according to its plain dictionary meaning, signifies anything intended to mislead another. It is really speaking, a matter of intention and even if the promise held out by the accused is fulfilled by him, the question is whether he is acting in a bona fide manner when he is extending certain promises to a woman and thereby inducing her to accompany him. The learned counsel frankly concedes that the intention behind the pretext or the promise could not be said to have been a bona fide one. Accordingly, if the evidence is otherwise clear on the record, there is no escape from the conclusion that it is a case of abduction.
7. The learned counsel next urged that as long as the girls continued to be removed from Delhi to Basundra, there was abduction but their detention at Basundra for a period of 4 months caused a break in the continuity of the offence which therefore ceased to be abduction. It was urged that when they were removed from Basundra to Jaipur, it would be abduction only if deceitful means were employed over again. This argument, in our opinion, is only plausible but without force and the learned counsel has not been able to support it by any authority. On the contrary, it was held at Emperor v. Nanhua, 53 ALL. 140 at p. 145 : (A. I. R. (18) 1931 ALL. 55 : 32 Cr. L. J. 690) that unlike kidnapping, abduction is continuing offence and a girl is being abducted not only when she is first taken from any place bat also when she is removed from one place to another. In Our opinion, the deceit practised on the minds of the girls at Hardwar, continued to work as they moved from one place to another, and they accompanied the accused in pursuance of the promises held out to them.
8. Lastly, the learned counsel for the accused contended that since abduction by itself was no offence, it was necessary for the prosecution to establish intent with which the offence had been committed. The prosecution case is that the girls were being compelled to marry against their will. The learned counsel, however, urges that on the record, there is no evidence to establish the alleged compulsion. We have, however, only to refer to the statements of the girls, to conclude that it was a clear case of compulsion from beginning to end. All the time, the girls were being kept locked up in a house and not only threatened but actually beaten to do one thing or another. They were made to change their clothes at the point of a big knife being waived at them and were also forced to pick up the Hindustani language under a continuous beating. Even when they were brought to Jaipur, they were kept confined in a house locked up from outside for a period of 3 months and during this period forced to change their caste and 'Gotra'. this conduct on the part of the accused leaves not the slightest doubt that it was all adopted for the purpose of compelling the girls to marry them against their will. In view of the above, so far as Ramjilal is concerned, the case against him is fully established under Section 366, Penal Code and the appeal filed by him is hereby dismissed.
9. The ease against Mohanlal, however, stands on a different footing. He joined Ramjilal at Basundra and therefore it cannot be said that he was in any way a party to the fraud which had been practised upon the girls for the purpose of bringing them from Har-ki-pedi to Basundra. Conspiracy between the two accused is not established. He joined hands with Ramjilal at Basundra and thereafter helped him in forcing the girls in calling him as their father and keeping them confined in a locked house and changing their caste and 'Gotra'. The question is whether on these facts, he can be convicted of the offence under Section 366. The learned Government Advocate urged at one time that both Ramjilal and Mohanlal had acted in concert with each other from the stage of their arrival at Basundra and, therefore, should be presumed to have acted in concert even as regards the acts imputed to Ramjilal before coming to Basundra. We consider that this contention is rather far fetched and cannot be allowed to prevail. The learned Government Advocate urged lastly that since the offence of abduction was a continuing one, any person joining the accused at a subsequent stage must be held to be equally guilty of the offence under Section 366, Penal Code, even although he was not associated with him from the very beginning. The learned Government Advocate is, however, not able to cite any authority in support of this proposition and unless a charge of conspiracy is established against Mohanlal, it is difficult to make him responsible for what had been done before he actually joined hands with Ramjilal. In the circumstances, the conviction of Mohanlal under Section 366, Penal Code, cannot be sustained. The appeal filed by him is accordingly hereby accepted and the order of conviction and sentence passed by the learned Sessions Judge set aside. Mohanlal is hereby acquitted of the offence under Section 366, Penal Code, and shall be Set at liberty forthwith.
10. I concur.