1. We are unable to accept the case for the prosecution, in so far as it is attempted to be made out that the complainant was raped by Sitanath or by anybody else, or that she was abducted in order to compel her to have illicit intercourse with him, or any one against her will. The woman's own conduct and the conduct of Sitanath and of others, who were accused with him, is inconsistent with any such treatment, or with any such intention on their part. If the woman had been raped or subjected to great personal violence or indignity, it is impossible to suppose that she would not have complained to one or other of the persons whom she must have met when she was brought within the precincts of the Alipur Court with a view to the settlement of the criminal case which she had brought before she was forcibly carried off. But although the complainant's statement is doubtless greatly exaggerated as to the treatment which she had received, we have no doubt that the fact of the abduction is true, and that she was, when returning from the Magistrate's Court where she had gone with Isser Haldar to lay her complaint, seized and carried off and kept in confinement. There is ample evidence to establish this, and we see no reason to doubt its truthfulness. But the object of the outrage was, we consider, not to violate the complainant's person, but to prevent her from prosecuting the complaint which she had made, to bring her under the influence of the person who had abducted her and to keep her away from the influence of those who might compel her to go on with the complaint, and for that purpose it was necessary to keep her in confinement; . We think, therefore, that the jury were right in acquitting the prisoner in respect of the charges under Sections 366 and 376. But the evidence does, in our opinion, establish the commission of an offence under Section 365. There was no formal charge under that section, but in dealing with the case we can exercise all the powers which we could exercise on an appeal; and we think that the offence is, within the meaning of Section 238 of the Code of Criminal Procedure, a minor offence, and that the accused could have been convicted of it without a formal charge. It is true that wrongful confinement is not an essential feature of the Commission of an offence under Section 366, but it must often be involved in it, and the whole case for the prosecution is not only that there was abduction but confinement with the view to force the complainant to illicit intercourse. That particular intention is the part of the case which we do not think is well established.
2. The prisoner is not, in our opinion, prejudiced by the omission to frame a charge under Section 365. It was necessary, to secure a conviction under that section, to prove abduction as well as secret confinement. The fact that there was such confinement has been proved throughout the case for the prosecution, but it was said to be for a purpose which we do not find to be properly established.
3. I would only add that, in the conduct of the woman herself and in the conduct of the prisoner, there is much to indicate that the object was that which we have found and not to violate her person. We convict the prisoner of an offence under Section 365 of the Indian Penal Code, and sentence him to vigorous imprisonment for one year.
4. I concur with my learned colleague in thinking that the charges under Sections 366 and 376 of the Indian Penal Code have not been established by the evidence, and that the jury were right in acquitting the prisoner of the offences punishable under those sections.
5. I also concur with my learned colleague in thinking that the evidence establishes the fact that complainant was abducted by the accused with the object, not of having illicit intercourse with her, but of keeping her away from the influence of those persons who had induced her to complain against the accused, and for the purpose also of making her compromise the criminal case that she had already instituted. Upon the facts proved, the offence of the accused is one that is punishable under Section 365 of the Penal Code, and the question is whether, though no charge was framed under that section, it is competent to this Court, in dealing with the case under Section 307 of the Code of Criminal Procedure, to convict the accused of that offence. Section 307 provides that, in dealing with a case submitted by the Sessions Judge under that section, 'the High Court may exercise any of the powers which it may exercise on an appeal; but it may acquit or convict the accused of any offence of which the jury could have convicted him upon the charge framed and placed before it.' And the question, therefore, is reduced to this, namely, whether the jury could, upon the charges framed, have convicted the accused of an offence under Section 365 of the Penal Code. Now Section 238 of the Code of Criminal Procedure, paragraph 2, says: 'When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.' So that if an offence punishable under Section 365 of the Penal Code can be properly regarded as a 'minor offence' compared with that punishable under Section 366, then clearly under Section 238 of the Criminal Procedure Code the jury could have convicted the accused of an offence under Section 365, though he was not charged under that section. What is to be regarded as a minor offence compared with another has not been defined by law, and I think we may take the words 'minor offence' in their ordinary sense; and if these words are taken in their ordinary sense, the offence under Section 365 would be a minor offence as compared with that punishable under Section 366, which is certainly of a graver description. They are both offences of abduction, but in the one case the motive for the abduction is not so heinous as in the other. In the case of Jatra Shekh v. Reazat Shekh I.L.R. 20 Cal. 483 an offence punishable under Section 498 of the Penal Code was regarded as a minor offence compared with an offence punishable under Section 366.
6. I do not say that I am prepared to go so far as that case goes, but I cite that case as shewing that the words 'minor offence' are to be taken, not in any technical sense, but in their ordinary sense. That being so, I think that it is competent to this Court, in dealing with the case under Section 307 of the Criminal Procedure Code, to convict the accused of an offence under Section 365 of the Penal Code, although he was not charged with any such offence, but was charged with an offence punishable under Section 366.
7. I may add that two other cases cited in the argument also lend support to the view we take. These are the cases of the Empress v. Hari Mirdha I.L.R. 3 Cal. 189, and Government of Bengal v. Mahaddi I.L.R. 5 Cal. 871.
8. I agree in convicting the accused under Section 365 of the Penal Code and in sentencing him to one year's rigorous imprisonment under that section.