1. The appellant Mst. Kan Kanwari along with Mangtu Gujar and two others, was tried in the court of the Additional Sessions Judge, Sikar. She was charged under Sections 363 and 365 I.P.C., Mangtu was charged under Sections 363, 365 and 366 I. P, C. and the remaining two under Sections 365, 366 and 366, I. P. C, read with Section 109, I. P. C.
2. The prosecution case was that a Sunar girl named Gita, about 11 or 12 years old, resident of the town Fatehpur, Sikar District, was living under the guardianship of her mother Mst. Sugni, her father having died. About a couple of days before the 3rd April 1955, hereinafter to be referred to as the date of occurrence, Hanuman Oswal, hereinafter to be referred to as Oswal, husband of the appellant Mst. Kan Kan-wari, approached Mst. Sugni and asked her to supply one seer milk daily, i.e., half a seer in the morning and a half a seer in the evening to him. She agreed, but said that she had no one to take the milk, to his house, upon which Oswal asked her to send milk through her daughter Gita. Milk was accordingly supplied as required and on the date of occurrence in the morning as usual Mst. Gita took milk to Oswal's house in a brass lota and gave it to the appellant. Oswal asked Gita to come to a room in the upper storey. There he asked her what the price of the milk was to which Gita replied that she did not know and that she would ask her mother about it. Then Oswal engaged her in some other conversation and asked her to look at the pictures hanging in the room and count them. In the meantime, the appellant came up with sweets and other edibles and asked Gita to take them. The girl at first declined but when pressed, she ate them. After taking them, she felt sleepy and slept till about 3-00 P. M. When she felt the necessity of easing herself, she asked the appellant that she wanted to go out to clear her bowls but the appellant said that she could ease herself in the room itself. Gita did not like to ease herself in the room and insisted upon going out but the appellant brought an earthen pot and persuaded the girl to use it for easing purposes, and Gita obeyed.
Throughout the whole of the day, the girl remained in the upper room of the house of Oswal and all the time either Oswal or the appellant remained with her in the room,
The girl asked the appellant to allow her to go to her house but he said that i| she went to her house, she would be beaten by her mother. In the night, when it was dark, Gita was given by the appellant a dhoti used by males and she was asked to to put it on.
One Hanuman Brahmin gave her a shirt and after having Gita dressed in dhoti and shirt and tying a wrapper to her head like a handkerchief, she was taken by the accused Mangtu at about 11.00 P. M. towards Ramgarh. Up to Ramgarh, she was taken sometimes on foot and sometimes by Mangtu in his arms whenever she felt tired. At Ramgarh, Mangtu hired a vegetable seller's camel and took Gita to Churu, At Chum the girl was made to stay at the house of a Daroogha and from there at about 4 P. M. on the 4th April, 1955, the girl was taken to Hissar where they reached in the morning of the 5th of April 1955,
From Hissar they went in a bus to Mohammedpur where Mangtu's daughter was married and Gita was made to stay at Mangtu's daughter's house for the day. Then Mangtu brought Gita back to Churu where Oswal met them and after staying in the night at Churu, Mangtu and Oswal along with Gita started for Hissar by 4 P. M. train. At Hissar, Gita was taken to the house of a Gujar woman named Jhinkuri. There, the party stayed throughout the day and then in the evening Mangtu, Oswal and Mogaram and Bansi along with Mst. Jhinkuri took her to Abdullapur and from there they brought her to village Budia.
The party stayed at village Budia for 6 or 7 days in a house rented from a Mahajan. Then, one evening when it was dark, she was taken in a bullock-cart to Kanalri in the district of Ambala. Then she was married to one Mamraj Gujar of village Alipur. Mst, Jhinkuri posed as Gita's mother, Mangtu as her father, Oswal as her maternal uncle and Mogaram and Bansi as the. sister's husband of Mangtu at the time of the marriage. A sum of Rs. 2,500/- was realized from Mam Raj for the marriage which was celebrated through one Pandit Jagdish (P. W. 9) of Kanalri. The girl was threatened not to disclose her identity and tell people that she was Gujar by caste and that Mangtu and Mst. Jhinkuri were her parents end Oswal, Bansi and Mogaram were also her relations,
3. After the disappearance of the girl, at first her mother and her cousin Girdhari made a vigorous search for her. The appellant and Oswal were asked as to where the girl had gone to from their house and reply was given that she had left their house soon after supplying milk with the empty lota. After some search, a report was lodged at the police Station Fatepur by Girdhari, the cousin of the girl, on the 9th April 1955. This report is Ex. P/1 on the record.
Thereafter, Girdhari somehow got information that Oswal and a Brahmin named Hanuman might have been responsible for the disappearance of the girl. On this, Girdhari searched for Oswal & Hanurhan Brahmin but though Hanuman Brahmin was found in Fatepur, Oswal was not found. Enquiry was made at his house from His wife and Girdhari was told that Oswal had gone to Churu to see his mother. This aroused the suspicion of Girdhari and he remained on the look out if any letter addressed to Oswal's house could be intercepted. On the 26th April 1955 it was found out that an envelope addressed to Oswal's house had been delivered to the postman concerned and Girdhari assuring the postman that he would deliver the letter at Oswal's house, took it from him.
When the letter was opened, complicity of Oswal was further strengthened in the disappearance of Gita and it was also found out that the letter was sent by Oswal. A ten-rupee note was also found inside the envelope. A report (Ex. P/2) was lodged at Fatepur Police Station and the letter with the envelope and the note of Rs. 10/- were handed over at the Police Station along with the report.
4. On the above clue, investigation was taken in hand and Shri Man Bhadra, Station House Officer, Fatehpur, ultimately reached Alipur with Girdhari. and a constable. On having received the information that the girl had been married to Mam Raj, Mam Raj and Gita were approached and Mam Raj gave out the story that the girl had been given in marriage to him on payment of Rs. 2,500/- by Mangtu, Oswal, Mst. Jhankuri and a few others. He produced Mst. Gita before the Sub-Inspector & also the Lagan patra (Ex. P/4). Investigation was also made at Kanalri, Mohammedpur, Budia and other places through which the girl had passed and certain documents were taken in possession.
Mst. Gita was brought back to Fatehpur and then after her interrogation, it is said, that the brass lota (Art. P/A) was recovered from the house of Oswal at the instance of the appellant. Mst. Gita is said to have been given a salwar, a dupatta, jumper, and a pair of chappals by her husband and they are Articles P/B, P/C, and P/D respectively on the record. They were taken possession of by the police. For their stay at Budia, Mangtu and his party are said to have paid Rs. 4/- to one Rajeshwar Prasad (P. W. 13) as rent of his house and the counter-foil of the receipt (Ex. P/8) was seized from Rajeshwar Prasad.
Mst. Gita was subjected to medical examination at Sikar Hospital by Dr. Din Dayal Mathur. According to him, she was between 13 and 14 years of age at the time of medical examination on 30th May 1955.
5. Oswal and Mst. Jhinkuri could not be traced. The case was challanod against the appellant Mst. Kan Kanwari, the accused Mangtu, Bansi and Mogaram, under Sections 344, 366, 366A and 368, I. P. C. read with Section 114 I. P. C. in the court of the Sub Divisional Magistrate, Fatehpur, who committed all the four accused to take their trial under the various sections in the court of the Additional Sessions Judge, Sikar.
The appellant was charged with an offence under Section 363 I. P. C., Mangtu under Section 363 I. P. C. as well as Section 366 I. P. C. and Bansi and Mangaji under Section 366 I. P. C. read with Section 109 I.P.C. The charge was amended by the learned Additional Sessions Judge and the appellant was charged with offences tinder Sections 363 and 365 I.P.C. Mangtu under Sections 363, 365 and 366 I.P.C. and Moga and Bansi under Sections 365, 366 and 366 I.P.C. read with Section 109 I.P.C.
6. All the accused denied the charge and pleaded that they knew nothing in the matter. Learned Additional Sessions Judge was not satisfied that Mogaram and Bansi had committed any offence and consequently acquitted them.
He, however, convicted Mangtu under Sections 363, 365 and 306 I.P.C. and sentenced him to various terms of imprisonment and fine. He convicted the appellant under Section 363 I.P.C. as well as Section 365 I.P.C. and sentenced her to one year's rigorous imprisonment for each of the two offences, both the sentences to ran concurrently. Mst. Kan Kan-wari has come in appeal to this Court.
6a. I have heard Shri O. C. Chatterji on behalf of the appellant and Shri R. A. Gupta, Deputy Govt. Advocate, on behalf of the State.
7. It has been argued by Mr. Chatterji that whatever may be the offence against the other accused, the evidence against the appellant either for an offence under Section 363 I.P.C. or for that under Section 365 I.P.C. was altogether unreliable and insufficient. It was argued that the appellant had nothing to do with the movement of Mst. Gita from Fatehpur to Ramgarh, or other places. She remained at her house and even if her husband kidnapped the girl, or committed any offence in that connection, the responsibility cannot be laid at the appellant's door. It was argued that the only evidence against the appellant was that of the girl Gita and it has not been corroborated by any other reliable evidence. It was argued that the learned Additional Sessions Judge found corroboration from the evidence of Mst. Sugui (P.W./2), Cirdliari (P. W. 3) and the recovery of lota (Art. P/A) and the letter (Ex. P/10)(a). It was contended that this letter was not proved at all, and no the lower court was altogether unjustified in relying upon its contents.
As regards the recovery of lota, it was argued that the evidence was discrepant. It was stated at the trial that the lota was dug up by the appellant from underground, whereas no such thing is mentioned in the recovery list (Ex. P/9). As regards the evidence of Mst. Sugni and Girdhuri, it was argued that all that their evidence shows is that Gita had been to the house of Oswal with milk on the date of occurrence and that she did not return from there but in the first information report (Ex. P/1) no mention was made that Gita had gone to the appellant's house with a lota full of milk.
It was an afterthought that the theory of supplying milk has been invented, and under the circumstances, there is no reliable evidence to hold that the appellant had any hand in the elopement of Gita. Further it was argued that even on the evidence of Gita, no offence either under Section 303 I.P.C. or under Section 365 I.P.C. was made out.
8. On behalf of the State, it was argued by Mr. Gupta that the evidence of Mst. Gita alone was quite sufficient for the conviction of the appellant. There is no rule of law under which the evidence of a victim of kidnapping or abduction is considered to be insufficient without corroboration.
It was argued that the evidence is quite natural and very detailed and it brings the charges under Sections 363 and 365 I. P. C. home to the appellant. It was further argued that if any corroboration were required, there was corroboration in the shape of the recovery of Iota (Art. P/A) and the evidence of Mst. Sugni and Girdhari and the letter (Ex. P/10)(a)). It was argued that the evidence about the recovery of lota is perfectly believable and the lota has been identified to be the one in which Gita had taken milk to Oswal's house on the morning of the date of occurrence.
It was argued that the omission of the fact that the lota was dug from underground, was not quite sufficient to discredit the evidence of recovery, As regards the evidence of Mst. Sugni and Girdhari, it was argued that Girdhari has given a reason that he did not want to implicate any particular person unless he had sufficient evidence and there was none when he made the report (Ext. P/1). As regards the letter (Ex. P/10(a)), it was argued that it also shows the complicity of the appellant in the of-fence.
Further, it was argued that even if the evidence falls short of proving an offence under Sections 363 and 366 I. P. C., it established beyond doubt an offence under Section 363 I.P.C. read with Sections 114 and 342 I.P.C. against the appellant, and the court can very well alter the conviction from one under Section 363 I.P.C. to that under Section 363 I.P.C. read with 114 I.P.C. and from one under Section 365 I.P.C. to that under Section 342 I.P.C.
9. I have considered the arguments of both the learned Counsel. I need not go into the voluminous evidence on the record of this case because it does not show that the appellant accompanied Gita from Fatehpur or was present with her at any of the places through which Gita was made to pass. Whatever part the appellant played, was at her house at Fatehpur, I have, therefore, got to see whether the evidence against her is sufficient to prove any of the offences of which she has been convicted or for any other offence for which she can be convicted by this Court without there being any charge for those offences or for which she can be ordered to be re-tried.
It may be said at the outset that the finding of the lower court that Gita was less than 18 years of age at the time of occurrence has not been challenged before me. She has given her age as about 12 years at the time of her statement in the Sessions Court on the 19th June 1956 and her mother Mst. Sugni (P.W. 2) and her cousin Girdhari (P.W. 3) have also deposed that Gita was about .1.2 years at the time of the occurrence.
According to medical evidence, her age was between 14 and 15 years at the time of medical examination on the 30th May 1955. Fourteen teeth had erupted in each jaw. Her breasts had not developed and public and auxiliary hair were not present. None of the witnesses regarding age was cross-examined on behalf of the appellant on this point. Even in this appeal the finding regarding age has not been challenged. It can, therefore, be safely taken that Gita was in any case less than 15 years of age at the time of the occurrence. For an offence of kidnapping from lawful guardianship, the age of the female kidnapped, should be under 18 years. As Gita was definitely below that age at the time of the occurrence, the offence of kidnapping from lawful guardianship will be established if other ingredients of Section 361 IPC, which defines 'kidnapping from lawful guardianship' are proved.
10. It appears to me that Gita was, at the time of her examination in court, above 12 years and therefore precautions which are necessary in the case of a witness below 12 years were not necessary in this case. However, I find that the learned Sessions Judge satisfied himself that Gita understood very well the value of truth and the significance of oath. Learned Additional Sessions Judge has said that although the girl was very young, yet she realized the value of speaking the truth and the significance of oath.
He also says in his note that the girl understood it fully that it was a sin to tell a lie and it was one's duty to tell the truth. This note of the learned Additional Sessions Judge clearly shows that he had satisfied himself with regard to the conditions which are necessary for administering oath to a child witness below 12 years and for recording the statement of such a witness. It was observed by Their Lordships of the Supreme Court in the case of Rameshwar Kalyan v. The State of Rajasthan : 1952CriLJ547 that whether the magistrate or Judge really was of opinion that the child understands the duty of speaking the truth and state why they think so can be gathered from the circumstances when there is no formal certificate.
In this case, there is the required certificate by the learned Additional Sessions Judge and so even if we take Mst. Gita to be a child witness, precautions insisted upon by the Supreme Court in the ruling referred to above, were taken by the learned Additional Sessions Judge, and so Gita's evidence is admissible. However, to my mind Gita was not a child witness in whose case any precautions which are necessary in the case of a child witness, were necessary, and even the learned Counsel for the appellant has not argued that any precautions were necessary to recording the evidence of Mst. Gita, or that it was inadmissible because no precautions were taken. I should, therefore, not pursue this matter any further, and hold that the evidence of Mst. Gita was just as admissible and fit to be acted upon as that of any other competent witness.
11. Before dealing with her evidence, I may say that there is some controversy whether in a case of kidnapping or abduction, the evidence of the prosecutrix should be acted upon or not without material corroboration. However, so far as this Court is concerned, it has been held by a Division Bench of this Court in the case of Ramjilal v. State 1950 Raj LW 340(B) that the rule that the statement of the prosecutrix must be corroborated in material particulars by some other evidence, should be restricted to cases of rape only and should not be extended to other cases of sexual nature.
That was a case under Section 366 I.P.C. and against the accused Ramjilal, there was the evidence only of the two abducted girls. It was argued on behalf of the accused that the rule of prudence requires that the statement should be corroborated in material particulars by some other evidence and that unless that is done, it would be dangerous to rely upon it. This argument was rejected and the following observations were made:
In Emperor v. Banubai Ardeshir AIR 1943 Bom 150(FB)(C) 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 the incidents took place as they were narrated. We accordingly, see no reason why they should not be believed.
12. This ruling is binding upon me and even on the evidence of Mst. Gita alone, conviction can be maintained if the evidence of this girl is believed.
13. I now proceed to examine the evidence of Mst. Gita. I have read her evidence with anxious care. She has given a very detailed account of how she was treated inside the house of Oswal and how she was moved away from place to place. She has given the names of the places she was made to pass. In the case of Kanalri, she has even given the name of the district as Ambala,
She has very clearly said where she was made to stay at Mohammedpur, Kanalri and Budia. She pointed out the house of Rajeshwar Prasad at Budia where she was made to stay during her stay there. She also pointed out the house at Kanalri where she had stayed. As regards time also, this girl appears to have had a very clear idea. Her evidence reads like the evidence of a truthful witness and is quite cogent and natural and forthright and does not appear as the result of tutoring.
I am convinced that such details as she has given could not have been given by her if she were a tutored witness. She was cross-examined at length and the only infirmity which the learned Counsel for the appellant was able to point out was the discrepancy that she stated at the trial that the price paid for her marriage by Mamraj was distributed in her presence whereas in her statement before the committing court she had stated that it was not paid in her presence. In her statement before the committing court, she had said that she had not seen the distribution with her own eyes whereas at the trial she said that the money was distributed between the various culprits in different proportions. When confronted with her previous statement, she said that the fact was that the money was divided behind a pardah and Mst. Jhinkuri had told her as to how it had been distributed. This shows that her information was derived from Mst. Jhinkuri and simply because there was only a thin screen between her and the place where the money was divided and immediately after Jhinkuri told her how it had been divided, she carried the impression as if she had seen it being divided. It does not discredit her whole evidence which has not been shaken even after a long cross-examination. Simply on this account, the entire evidence of this unsophisticated girl cannot be thrown out. From the statement of Mst. Gita, it appears that after she had gone on the date of occurrence with a lota full of milk in the morning and had delivered milk to the appellant, Oswal called her up to an upper room, There he engaged her in certain conversation.
The appellant also reached there and gave her something to eat and when she declined, the appellant insisted upon her taking it. The evidence of this girl also shows that she was made to stay in the upper room throughout the whole of the day and she was never left alone there, sometimes Oswal and sometimes the appellant staying in that room. She also stated that when she wanted to ease herself in the after-noon and go out, the appellant told her that she need not go out and that she could ease herself inside the room and when she insisted, the appellant brought an earthen pot and asked her to ease herself in that pot.
Gita also says that when she wanted to go to her house after it was dark, the appellant told her that if she went there, she would be beaten by her relations and therefore she should not go. Then the witness proceeds to say that in the night at the time of her departure from the house of Oswal with Mangtu, she was supplied with a male dhoti by the appellant and was asked to put it on. This shows that the appellant was as much responsible for confining Mst, Gita in her house as her husband and also assisted Mangtn and others iii taking away Gita from her home town.
14. This is all the evidence of Gita so far as the appellant is concerned and in this evidence she has not at all been shaken. There is absolutely no reason to suppose why she should be falsely implicating the appellant if she had not actually seen her doing all the acts which have been stated against her. It was argued that Gita's evidence so far as the appellant is concerned, should not be believed because in the first information report, (Ex. P/1), no mention was made by Girdhari of her having gone to Oswal's house with a lota full of milk in the morning of the date of occurrence. It is true that this has not been mentioned in Ex. P/1 but Girdhari has explained that he did not want to implicate any particular person unless some evidence was forthcoming against him and he had been told by others that he should not implicate anybody on mere suspicions.
The explanation given by Girdhari does not appear to be untrue. It appears that on the morning in question, Gita had not gone only to supply milk to Oswal but had also been asked to purchase some vegetables from the bazaar. This is borne out by the evidence of both Mst. Sugni and Girdhari Lal, and I have no reason to disbelieve that evidence disagreeing with the learned Additional Sessions Judge before whom they were examined.
The purpose of Girdhari Lal was that the girl should be searched and as he had seen Oswal in the town for some time alter the disappearance of the girl, his suspicion did not naturally fall upon him and he implicated him only when a letter had been intercepted by him. There is no reason to disbelieve the evidence of Gita simply on account of the omission in the first information report (Ex. P/1) about her having gone to the house of Oswal with a lota full of milk.
15. The evidence of Mst. Gita does not stand uncorroborated in this case. It finds corroboration from the evidence of Mst. Sugni in one material particular, i.e., Gita had gone to the house of Oswal on the date of occurrence with milk in a lota. I have read her statement and I am in perfect agreement with the learned Additional Sessions Judge that it is worthy of belief. Nothing has been brought out in her cross-examination to shake her testimony.
Girdharilal, who resided with Mst. Sugni & Gita in the same house, has also corroborated the statement of Gita about her having gone to deliver milk. His statement too has been believed by the learned Additional Sessions Judge and I have no reason to disagree with him.
16. Another piece of corroborative evidence is the recovery of the Iota (Art, IVA) from the house of Oswal, There is the evidence of Sub-Inspector Man Bhadra about its recovery and that of Gulzar. Both have stated that the lota was recovered at the instance of the appellant, and that it was dug up from underground by the appellant. Gulzar also stated likewise. Nothing has been brought out in the cross-examination of these witnesses to show that their evidence in this behalf is untrue. The only argument was that it had not been mentioned in the recovery list (Ex. l'/9) that the lota was unearthed. It has been stated in the recovery list that a brass lota was got recovered by Mst. Kan Kanwari from her house. It is not necessary that the recovery list should have been prepared with all the details. Simply because it was not mentioned in the recovery list that the lota was unearthed, does not make the evidence of the prosecution witnesses unreliable. There is nothing inconsistent in the recovery list with, the lota having been unearthed from underground. This lota was identified by Gita to be the lota in which she had taken milk to Oswal's house on the morning of occurrence. It was also identified by Mst. Sngni (P. W. 2). The appellant did not lay any claim to the lota and even in cross-examination of the prosecution witnesses, nothing was brought out to discredit the identification. Mst. Kan Kanwari was asked whether this lota was recovered from her house, but she denied it. She said that the lota (Art. A) was not produced by her before the Police. This statement is altogether untrue. It is, therefore, fully proved that the Iota (Art. 'A') was the lota in which milk had been taken by Gita to Oswal's house on the morning of the occurrence and that it was recovered from the house of the appellant at her instance. This is a very strong circumstance against the appellant, as there is no explanation as to how the lota (Art. 'A') found its way to Oswal's house unless it was taken there by Mst. Gita as stated on oath by her and her mother Mst. Sugni.
17. So far as the letter (Ex. P/10) is concerned, howsoever valuable it might have been for the purposes of investigation and for tracing the girl and some of the miscreants, it is not legally proved and therefore, the learned Additional Sessions Judge was not justified in reading it in evidence. How-ever, even without this letter, there is sufficient evidence which has been discussed above to prove that Mst. Gita had gone to the house of the Oswal on the date of occurrence with a lota full of milk and that she was not allowed to go back but was kept confined in Oswal's house inter alia by the appellant, and at the time of her being taken away out to Falehpur, the appellant assisted the persons, who had taken her away by disguising Gita in male apparels.
18. The only question that has got to be examined is as to what offence was committed by the appellant. I do not think that the evidence is sufficient to prove that the appellant was among the kidnappers of Mst, Gita, much less that she kidnapped her with intent that she be secretly and wrongfully confined. The girl was certainly secretly and wrongly confined in the house of the appellant but that was before she was kidnapped. So long as she was in the house of the appellant, it cannot be said that she had been kidnapped. That was only the stage of preparation. However, kidnapping took place as soon as Gita was taken out of the house of Oswal with a view to taking her away to other places. The appellant, however, undoubtedly abetted the kidnappers in kidnapping Mst. Gita. She is, therefore, guilty of an offence of abetment of kidnapping Gita from lawful guardianship and also of an offence of wrongfully confining Gita. The appellant was, however, not charged with wrongfully confining Gita under Section 342, I. P. C. and abetting her kidnapping. It was argued by the learned Counsel for the appellant that 'under these circumstances she can neither be convicted under Section 342, I. P. C., nor the abetment of an offence under Section 363, I. P. C. This question has got to be examined.
19. Generally it is not advisable to convict an accused for an offence with which he has not been charged, and Section 233, Cr. P. C. says that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. But the said section itself makes an exception in the cases mentioned in Sections 234, 235, 236 and 239, I. P. C. Sections 234 and 235, I. P. C. are not relevant to the present case. However, to my mind, Section 236 read with Section 237, I. P. C. applies and it runs as follows:
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved, will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences.
Section 237, Cr. P. C., is as follows:
If, in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence, that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
20. In the present case, it was doubtful as to whether an offence of kidnapping or of abetment of kidnapping had been committed from the facts which could be proved, The appellant could, therefore, be charged in the alternative with kidnapping as well as abetment of kidnapping. She was, however, not charged in the alternative with the two offences but was charged only with the substantive offence of kidnapping. She could, therefore, be convicted of abetment to kidnap if the evidence proved abetment only and not the actual offence of kidnapping. What the learned Sessions Judge could do, I can also do by virtue of Section 423, Cr. P. C. which authorizes an appellate Court to alter the finding of a trial Court, subject, of course to the condition that doing so causes no prejudice to the accused. It was held in the case of Tananada Charan v. Emperor AIR 1929 Cal 807(D), that it cannot be definitely laid down that a person having been charged with a substantive offence, cannot be convicted for abetment thereof when he is not charged with it originally. Every case depends upon its own facts and if the facts justify the conviction for abetment, though the person be charged with the commission of the offence itself, there is no bar in law to such conviction, provided he is not prejudiced by the absence of such charge. In Provincial Government v. Gomaji AIR 1944 Nag 192(E), also it was held by a Division Bench of Nagpur High Court that when an accused is charged under Section 193, Penal Code, the Courts are under law not precluded from convicting the accused for the offence of abetment if they find it established. If, however, the evidence adduced in support of the charge for the substantive offence does not give notice to the accused of all the facts which constitute abutment, he cannot be convicted of abetment. In both these cases, reliance was placed upon a ruling of their Lordships of the Privy Council in the case of Begu v. Emperor AIR 1925 PC 130(F), in which the accused were charged under Section 302 but on evidence they were found guilty of an offence under Section 201 and were convicted under the latter section. It was held by virtue of Section 236 read with Section 237, that they could be convicted under Section 201, although not charged with it. The crux of the matter is that in case the facts make it doubtful if an offence under one section or the other is committed, the accused can be charged with both the offences in the alternative and even if not charged he can be convicted of the offence with which ho could have been charged by virtue of Section 236 but was not charged. Of course, it is necessary that there should be no prejudice. In the present case, I have to see if any prejudice would be caused to the appellant if she is convicted of the offence of abetment under Section 363, I. P. C. I find from the charge sheet that no facts have been mentioned therein from which the appellant could have had notice that she had to meet a case of abetment of kidnapping. All that the charge sheet shows is that she herself kidnapped the girl from the lawful guardianship of her mother. From this the appellant could not have had notice that she might be convicted for assisting Mangtu and others in kidnapping the girl Gita. I am, therefore, of opinion that prejudice would be caused to the appellant if she is convicted of the offence of abetment under Section 363, I. P. C. If she cannot be convicted under Section 363, I. P. C., then she cannot be convicted under Section 365, I. P. C. because the essence of Section 365, I. P. C. also is kidnapping. I could, of course, send the case for re-trial after setting aside the conviction under Sections 363 and 365, I. P. C. but under the circumstances of the case, I do not think that any useful purpose would be served if the appellant is sent back for retrial if I can alter the conviction to one under Section 342, I. P. C. and sentence her for that offence.
21. The question now to be considered is whether she can be convicted under Section 342, I. P. C. without a charge under that section. It is true that Section 342, I. P. C. has not been specifically mentioned in the charge sheet but the facts necessary for an offence of wrongful confinement are present in that charge sheet. It has been said twice therein that the appellant wrongfully confined Mst. Gita in her house on 3rd April 1955 when she had gone to her house for supplying milk. From this, the appellant could well have notice that she was accused of an offence of wrongful confinement. The evidence which has been produced and has been discussed above, also proves without doubt that the appellant wrongfully confined Mst. Gita in her house on the date of occurrence when the girl had gone to her house to supply milk, A question was also put to the appellant under Section 342, Cr. P. C. whether she had wrongfully confined Mst. Gita in her house on the date of occurrence when she went there to deliver milk and gave her sweets to eat, but the appellant replied in the negative. The appellant could well be charged in the alternative by virtue of Section 236, I, P. C. of an, offence under Section 342, I. P. C. as it might have been doubtful as to whether kidnapping took place before the wrongful confinement or thereafter. If it took place before, the appellant could have been charged for abetment of an offence under Section 365, I. P. C. and if after the wrongful confinement, she could have been charged under Section 342, I. P. C. as well as for abetment of kidnapping from lawful guardianship. In these circumstances, Section 236, I. P. C. applied. It is a pity that she was not charged in the alternative under Section 342, I. P. C. in the circumstances of the case. It cannot, however, be said that it would be a surprise to the appellant if she is convicted under Section 342, I. P. C. although she was not charged with it.
22. The appeal is partly allowed, convictions of the appellants under Sections 363 and 365, I. P. C. are set aside but she is convicted under Section 342, I. P. C. instead. As she is a young woman and seems to have acted more under the influence of her husband than on account of any criminal propensities of hers, the sentence of imprisonment already undergone with a fine of Rs. 500/- shall meet the ends of justice in the circumstances of the case. The appellant is consequently convicted under Section 342, I. P. C. and sentenced to imprisonment already undergone and a fine of Rs. 500/-, She need not surrender to her bail under the circumstances of the case. In default of payment of fine, however, she will undergo three months' simple, imprisonment. She is given fifteen days' time to pay up the fine and in the meanwhile she will remain on the bail which she has furnished in this appeal.