JUDGMENT : CHATURVEDI, J. 1. Seven appellants, Ramsingh, Bhaggu, Kaptansingh, Jimee Pal, Alia, Munshi, and Rustam have been convicted by the Special Sessions Judge. Gwalior, under Sec. 395, I.P.C. and each has been sentenced to 7 years rigorous imprisonment and a fine of Rs. 30/-. Appellant Ramsingh has further been convicted under S. 372. I.P.C. and has been sentenced to undergo rigorous imprisonment for a further period of 3 years and a fine of Rs. 30/- and appellant Munshi has been convicted under Sec. 436, I.P.C. and sentenced to undergo rigorous imprisonment for a further period of 3 years. The appellants have filed this appeal against their conviction and sentences. All the appellants have been acquitted for offences under Ss. 336 and 376, I.P.C,; and the State has preferred an appeal under Sec. 417, Criminal P.C. against their acquittals. This judgment will dispose of both these appeals. 2. The prosecution story is that appellant Ramsingh was the leader of a gang of dacoits and the other appellants were working in this gang; that this gang on the evening of 6-12-1949 raided a hamlet known as Sahariyon-ka-pura near village Billowa, P.S. Antri District Gird, which is inhabited by Sahariyas whose main occupation is cutting of wood and collecting of grass. This gang put fire to the huts, assaulted the residents of the place, forcibly snatched away a gun from the house of Shyama P.W. 15, a sword from Phoda, P.W. 13, an ornament (Khangwari) from Radiya P.W. 24 and a lathi from Khema P.W. 25. The gang then asked all the young girls of Sahariyas to come out, and, out of the girls so-assembled, selected five girls and took them away. Subsequently on different occasions from 7th December 1949 to 10th December 1949 the members of this gang committed rape on those girls and on 9th December 1949 the three girls Latoori P.W. 20, Durjo P.W. 21 and Puniya P.W. 22 were sold away to Airbaa, Roshana and Bhagona The two girls Sarjo P.W. 1 and Bhaggo P.W. 2 were kept with the members of the gang and were subsequently recovered from the house of appellant Kaptan Singh at Rai Mal Khedi when on 16-12-1949 the house was raided by the Police and when all the accused (except Kaptan Singh himself) were arrested there. The learned Sessions Judge found the offence of dacoity proved against all the appellants and convicted them. The learned Sessions Judge found the offence of dacoity proved against all the appellants and convicted them. He found that appellant Munshi alone was responsible for putting fire to one hut and that fire itself had spread to other huts; and that appellant Ramsingh alone can be held guilty of sale of three girls to Airbaz and Roshna. He therefore, convicted them as stated above. The learned Special Sessions Judge held that the abduction of five girls had been proved but as the specific criminal intent that the girls would be forced or seduced to illicit intercourse with other persons was not established and, as according to him, there was no evidence to show the intern, or to raise the presumption that illicit intercourse was likely to result from abduction, he acquitted all of them under Sec. 366, I.P.C. In the absence of the corroboration of the testimony of Surjo (P.W. 1) and Bhaggo (P.W. 2) the learned Judge acquitted the accused for offence of rape under Sec. 376, and I am clear in my mind that the State appeal against the order acquitting the appellant for the offence of rape must fail. In the absence of any definite averments as to the time of its occurrence corroboration of the two girls in respect of the alleged offence is a practical impossibility. As regards the offence under Section 366 different considerations will apply and I shall deal with it later. 3. The first objection raised by Mr. J.P. Gupta on behalf of appellant Ramsingh is that a mis-joinder of charges has vitiated the whole trial and the conviction must be quashed on this ground. The learned Government Advocate has expressed the view that the joinder of charges was legal because all the incidents which were the subject matter of these charges formed part of the same transaction within the meaning of clause (d) of Sec. 239, Criminal P.C. 4. The expression 'same transaction' is nowhere defined in the Code, and it is difficult to give a precise definition which may cover all kinds of cases. The expression 'same transaction' is nowhere defined in the Code, and it is difficult to give a precise definition which may cover all kinds of cases. Justice Broomfield in - 'Shapurji Sarabji v. Emperor', AIR 1936 Bom 154 (A), observed that the word 'transaction' is not intended to be interpreted in any artificial or technical sense, and commonsense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In several cases it has been laid down that proximity in time as well as continuity of action and purpose are necessary to constitute "same transaction" within the meaning of Section 239, Criminal P.C. The importance of the proximity in time was stressed in - 'Queen Empress v. Fakirapa', 15 Bom 491 (B) and in - 'Queen Empress v. Vajiram', 16 Bom 414 (C). So where offences are separated by any distinct interval of time it will often be impossible to describe them as part of the same transaction. In - 'Emperor v. Datto Hanmant Shahapurkar', 30 Bom 49 at p. 54 (D), Batty, J. however observed that the word 'transaction' suggests not necessarily proximity in time so much as continuity of action and purpose. In my opinion the following dictum of Justice Chandavarkar in - 'Emperor v. Sherufalli', 27 Bom 135 at p. 138 (E), correctly lays down the test : "The real and substantial test, then, for determining whether several offences are connected together so as to form the same transaction depends upon whether they are so related to one another in point of purpose or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. A mere interval of time between the commission of one offence and another does not by itself necessarily import want of continuity, though the length of the interval may be an important element in determining the question of connection between the two." This dictum has been followed in - 'Emperor v. Hari Raot', 4 Cri. LJ 420 (Nag) (F); - 'Emperor v. Balwant Singh', 8 Cri. LJ. 11 (Nag) (G); - 'Chhotey Miyan v. Emperor', AIR 1938 Nag 250 (H); - 'Keshavlal v. Emperor', AIR 1944 Bom 306 (I), and other cases on the point. LJ 420 (Nag) (F); - 'Emperor v. Balwant Singh', 8 Cri. LJ. 11 (Nag) (G); - 'Chhotey Miyan v. Emperor', AIR 1938 Nag 250 (H); - 'Keshavlal v. Emperor', AIR 1944 Bom 306 (I), and other cases on the point. It may, however he stated mat though a mere common purpose does not constitute a transaction, nor the mere existence of some general purpose or design considered sufficient to make all acts done with) that object in view parts of the same transaction - 'Ramchandra Rango v. Emperor', AIR 1939 Bom 129 (J) and - 'AIR 1944 Bom 306 (I), still in order that different acts would make one transaction, it must be inherent in them that from the very beginning of the earliest act, the other acts should either be in contemplation, or should from the very nature of the transaction in view form the component parts of one whole. As observed by Ray, J. in - 'Yusuf Khan v. Emperor', AIR 1948 Pat 122 (K), continuity of action is not intended in the sense that one act must immediately follow the other without any other connection. Continuity refers not to the time so much as to the intimate connection between the acts. In the case before us, we find that the prosecution story is that all the accused were members of the same gang and that in order to gratify their lust and compel the young Sahariya girls to illicit intercourse with them and then to sell them for purposes of prostitution, the accused raided the hamlet on the evening of the 6th November 1949, looted the property and assaulted the inhabitants, burnt their huts, abducted several of the girls, committed rape on them in the way in the jungle of Guhisar and on 9-11-1949 sold three young girls to Airbaz and Roshna for a sum of Rs. 600/- with intent that these girls be used or employed for unlawful and immoral purposes, and kept two girls with them at Ramlal Khedi. 600/- with intent that these girls be used or employed for unlawful and immoral purposes, and kept two girls with them at Ramlal Khedi. The evidence for all the offences being the same (i.e. that of the five young girls), and, all the accused (without any stranger joining them) equally involved in all the offences, the various acts performed by them formed a sequence of events and were so intimately connected with each other as to form component parts of one whole; and, on this footing, it can be argued with force that in this case the offences of dacoity abduction, mischief by fire, rape and selling minor girls for immoral purposes were committed in the course of the same transaction. The fact that all the accused have been acquitted of offences of rape and abduction should not affect the decision on question of joinder of charges, as the provisions of Section 239, Clauses (a) and (c) refer to "persons accused", and, in the words of Lord Williams, J. in - 'Superintendent and Legal Remembrancer of Legal Affairs, Bengal v. Raghulal Brahmin', 62 Cal 946 (L), the provisions are intended to deal with the position as it exists at the time of charge, and not with the result of the trial. The matter is to be seen as it appeared to the trial Judge at the time when he framed the charges. This view has been upheld by the highest Courts in the country : see also - 'Akhilbandhu Roy v. Emperor', AIR 1933 Cal 258 (M). After the decision of their Lordships of the Judicial Committee in - 'Babulal Chaukhani v. Emperor', AIR 1938 PC 130 (N), the principle is well settled that the application of Section 239(d) should depend on the accusation and not on the eventual result of the trial : - 'In re Narayana Bhatta', AIR 1949 Mad 9 (FB) (O) and - 'AIR 1948 Pat 122 (K)'. 5. In this view of the matter, the preliminary objection raised by Mr. 5. In this view of the matter, the preliminary objection raised by Mr. J.P. Gupta must be overruled as I hold that the joinder of charges has warranted by the provision embodied in clause (d) of Sec. 239, Criminal P.C. I, however, agree with Pandrang Row, J. in - 'In re Balam Pateyya', AIR 1941 Mad 339 (p) that a joint trial in respect of large number of counts is very much to be deprecated even though the law may not prohibit it. There is no rule of law which compels a Court to hold a joint trial. Even where law permits a joint trial, it is open to the Court to hold separate trials. A joint trial in respect of large number of counts is likely to prejudice the accused and in such cases the better course for the trial Court is to ask the Public Prosecutor to select what he considers to be the best case from his point of view and to try that case first and leave the other charges to be tried if necessary later on after the result of the first trial is known. The jumbling up of many charges in this case especially of those relating to offences of rape committed on five minor girls in various places from 7th December 1949 to 10th December 1949 especially when the charge itself mentioned that on 9th December three girls had been sold to Airbaz and Roshna was confusing and vague and was likely to cause embarrassment to, and operate to the prejudice of, the accused. It is not surprising that it proved to be difficult for the prosecution also to give that sort of corroboration which was expected. The learned Special Sessions Judge has failed to deal with the evidence in a satisfactory way and considering the sordid and scanty material on the record, I regret to observe that the language of his judgment appears to be more colourful than appropriate. 6. The first thing that strikes me is that it was not a case of dacoity at all. If property and wealth had been the target, dacoits possessing ordinary commonsense would not have gone to Sahariyaon-ka-Pura where extremely poor Sahariyas reside. The dominant intention of the dacoits in this case therefore seems only to be the abduction of girls. 6. The first thing that strikes me is that it was not a case of dacoity at all. If property and wealth had been the target, dacoits possessing ordinary commonsense would not have gone to Sahariyaon-ka-Pura where extremely poor Sahariyas reside. The dominant intention of the dacoits in this case therefore seems only to be the abduction of girls. If some of the accused snatched away a lathi or a sword or a Dhamaka from some inmates of the huts, that may amount only to a technical offence of dacoity. The only ornament (a silver Khangwari of Khema) alleged to have been taken away in this dacoity was not traced or recovered in this dacoity from any of the accused. The recovery of Article G (a sword of Phoda) and Article A (the Dhamka of Shyama) has not been well established. The testimony of the Police Constable Rabbukhan (P.W. 9) who raided the house of Shankar Singh, elder brother of appellant Kaptan Singh, on 16-12-1949 is extremely vague in details. It appears that the house where all the accused were arrested early that morning belonged to Shankar Singh, and his younger brother appellant Kaptan Singh. The latter, according to the trial Court is only a lad of 16 or 17 years. Shankar Singh himself has not been produced in this case and Jagannath Singh P.W. 11, a Zemindar of Deora, who prepared the recovery memos (Exhibits P. 30 to P. 34 and Ex. P. 36 and P. 37) does not give any details about this recovery beyond saying that he was there and had prepared these memos. On the basis of this slender evidence I am clear in my mind that it cannot be held that recovery of a Dhamaka and a sword was from the possession of any of the appellant. The learned Sessions Judge has himself discarded the confessions and my remarks in - 'Aliya v. State', AIR 1953 Madh B 87 (Q) about the learned Magistrate who recorded the confessions and who did not take any care and precaution in conducting identification proceedings equally apply to tin's case; and, I am disposed to think that it will not be proper to place any reliance on identification proceedings in this case. Consequently the conviction of the appellants for the offence of dacoity under the Section 395, I.P.C. cannot be sustained. Consequently the conviction of the appellants for the offence of dacoity under the Section 395, I.P.C. cannot be sustained. There is then no evidence that the Taparias (or grass huts) were deliberately burnt down by the appellants. It is not clear whether it was a case of arson or accidental fire. Out of the five girls, who remained with the dacoits, four do not depose anything about the person who set fire to the Taparias. There is only a casual sentence in the deposition of Bhago P.W. 2 that Munshi, accused 6, had set fire to a hut. She adds immediately that Munshi had also committed rape on her and this statement has not been believed by the learned Sessions Judge. In my opinion, for establishing arson under Sec. 436 there ought to be stronger evidence. I would consequently not base a conviction for arson on a casual sentence in the deposition of a witness, I am therefore of opinion that appellant Munshi's conviction under Sec. 436, I.P.C. should not be allowed to stand. 7. As regards the conviction of Ram Singh appellant under Section 372, I.P.C., it may be observed that one of the factors required to constitute the offence is that the person disposed of or sold must be under the age of eighteen years. In this case no reliable evidence has been adduced about the age of the three girls who are alleged to have been sold to Airbaz and Roshna. The illiterate Sahariyas have no conception of age and do not know even counting. (His Lordship then considered the evidence and proceeded as under) : In this state of evidence I do not understand how the learned Special Sessions Judge convicted the accused Ramsingh for an offence under S. 372, I.P.C. In my judgment his conviction must be quashed. 8. It is no doubt true that all the five girls are young and some of them are married. Puniya's marriage was being celebrated the day the dacoits raided the hamlet. When young girls of marriageable age are abducted the initial presumption is that the abduction was with the intention of having sexual intercourse with them either forcibly or with their consent after seduction. The learned1 Sessions Judge however thought that the prosecution has failed to establish that intention in this case. When young girls of marriageable age are abducted the initial presumption is that the abduction was with the intention of having sexual intercourse with them either forcibly or with their consent after seduction. The learned1 Sessions Judge however thought that the prosecution has failed to establish that intention in this case. Of course the existence of an intention, like any other fact, has to be inferred by evidence of conduct and circumstances, as intention is after all a matter of inference from the circumstances of the case and the subsequent conduct of the accused after the abduction has taken place.If an offence under Sec. 372 had been proved in this case or if a general attempt by the appellants to gratify their lust with the girls after their abduction had been made in this case and proof had been given, the requisite intention could have been inferred. But no such evidence was forthcoming. (After referring to the evidence of the girls, the judgment continues as follows) : It has to be borne in mind that even this evidence of the girls is uncorroborated and on the basis of this evidence I have no doubt that the abduction, if it was proved, cannot be said to be with that intent which is specified in Sec. 366. I am also conscious of the fact that an offence under Sec. 365, I.P.C. is, within the meaning of Sec. 238, Criminal P.C., a minor offence as compared with offences under S. 366 and S. 376, I.P.C. and the High Court can convict an accused of the former offence without a formal charge having been framed - 'Queen Empress v. Sitanath Mandal', 22 Cal 1006 (R). In this case however no allegation has been made of wrongful confinement, and it does not appear from the evidence that Surjo and Bhago had been interned in the Haveli of Shankar Singh at Raimal Khedi and were not at liberty to move about. 9. There is nothing in their testimony or in that of Rabukhau (P.W. 9) or of Jagannath Singh (P.W. 11) to indicate that there was any restraint put on the person of the two girls in such a manner as has been specified in S. 340, I.P.C. The memo of recovery of the two girls (Ex. 9. There is nothing in their testimony or in that of Rabukhau (P.W. 9) or of Jagannath Singh (P.W. 11) to indicate that there was any restraint put on the person of the two girls in such a manner as has been specified in S. 340, I.P.C. The memo of recovery of the two girls (Ex. P. 37) mentions the fact that these two girls were recovered in the presence of Seth Dhani Ram and Thakur Hukumsingh of Raimal Khedi. But these two persons have not been produced. So a conviction under S. 365 must be ruled out of consideration. Thus there is no offence under which the appellants can be convicted in this case. It is possible the Saharia girls may have been abducted by some Zemindars for forced labour or for domestic service but the question who actually abducted them and under whose possession they remained is not easy of solution considering the scanty material on the record in this case. 10. The hamlet was raided during a dark night and three of the raiders are reported to have been wearing hats and others were covering their heads with Panchas. The terrified villagers could not have been able to identify them and the version of the girls cannot at all be relied upon. Puniya (P.W. 22), for example, definitely stated that appellant Bhaggu was not in the gang but still he has been convicted. Latoori (P.W. 20) could not identify anybody in the Court and the Special Sessions Judge observed while recording her testimony that she spotted accused No. 1 (who was Bhanwar Singh) but stated that he was Aliya. She did not know who was Bhanwar Singh or who was Munshi and did not know the names of the accused. No reliance, therefore, can be placed on vague general statements that all the accused were at Sahariyon-kapura on the day when the five girls were abducted. Under these circumstances, I am of opinion that the appeal filed by the Government must fail. 11. The result is that State appeal against the order of acquittal is dismissed. The appeal of Ramsingh, Jimeepal, Bhaggu, Aliya, Munshi, Rustom and Kaptan Singh is allowed and their conviction and sentences under S. 395, I.P.C. are set aside. The conviction and sentences of Ram Singh and of Munshi under S. 372, I.P.C. and S. 436, I.P.C. respectively are also quashed. The appeal of Ramsingh, Jimeepal, Bhaggu, Aliya, Munshi, Rustom and Kaptan Singh is allowed and their conviction and sentences under S. 395, I.P.C. are set aside. The conviction and sentences of Ram Singh and of Munshi under S. 372, I.P.C. and S. 436, I.P.C. respectively are also quashed. All the appellants are acquitted in this case. DIXIT, J. 12. I agree the conviction of none of the appellants can be maintained. The evidence on record at the most shows that on the evening of 6-12-49 some persons came to the Sahariyon-ka-pura and forcibly took away the five girls. There is no reliable evidence as to the identity of the persons taking away the girls or as to the property carried on or as to the recovery from the exclusive possession of any of the appellants the gun and the sword said to have been found with some of the accused persons, who were arrested in a raid on 16-12-1949. The conviction of the appellant under Section 335, I.P.C. cannot therefore be upheld. The conviction of Munshi under S. 436, I.P.C. rests solely on the statement of Bhago that it was he, who set fire to the Taparias. Having regard to the state of fright in which Bhago must have been when her village was raided, it is difficult to believe that she actually saw the person setting fire to the Taparias. He must, therefore, be acquitted of the offence under S. 436, I.P.C. As regards the conviction of Ramsingh under S. 372, I.P.C., it cannot be sustained for the reasons that firstly there is no reliable and satisfactory evidence of the fact that the girls in question were under eighteen years of age at the time of the offence and secondly the intention or knowledge postulated by S. 372, I.P.C. has not been proved. The conviction of Roshna and Airbaz under S. 373, I.P.C. for purchasing Puniya, Latoori and Durjo, was no doubt maintained by the court in Criminal Appeal No. 1 of 1951. But from this fact it does not necessarily follow that whoever sold the girls to Roshna and Airbaz, sold them with the intention or knowledge required by S. 372, I.P.C. The witnesses Latoori, Puniya and Durjo do not depose that Ram Singh had any illicit intercourse with them or that he forced them to have intercourse with any other person. But from this fact it does not necessarily follow that whoever sold the girls to Roshna and Airbaz, sold them with the intention or knowledge required by S. 372, I.P.C. The witnesses Latoori, Puniya and Durjo do not depose that Ram Singh had any illicit intercourse with them or that he forced them to have intercourse with any other person. The statement of Puniya and Durjo that clandestinely they had sexual intercourse with Munshi and Aliya is clearly not a circumstance showing that if Ramsingh sold the three girls, he sold them with the requisite intention or knowledge. I therefore, agree with my learned brother that all the appellants should be acquitted for the offences for which they were held guilty and the appeal preferred by the State should be dismissed. Order accordingly.