JUDGMENT 1. - This appeal filed under section 374 (2) Criminal Procedure Code has been directed against the judgment dated 1st July, 1980 of the learned Sessions Judge, Udaipur, whereby he held appellants guilty of offence under section 342 I.P.C. and sentenced each one of them for one year's rigorous imprisonment and a fine of Rs. 500/- and in default to further undergo three months' rigorous imprisonment. 2. Succinctly stated the prosecution case is that in the night intervening 30th against judgment dated 1.7.80 passed by Sessions Judge, Udaipur in Sessions Case No. 45/78 and 31st December, 1977, three miscreants entered into the hut of complainant Nathu and tried to forcibly abduct his wife Smt. Roopli aged about 16 years. She ran away and took shelter in the house of her neighbor Dalu. It is alleged that those persons chased abducted, bodily lifted and placed her in an autorickshaw. It is further alleged that the present appellants alongwith three co-accused per- sons committed rape with her and thereafter wrongfully confined her in Shop No. 12 Janta Market, Udaipur, from where she was recovered on 31.12.1977 at 10 A.M. by P.W.20 Raghunath Singh S.H.O., Police Station Surajpole at the instance of appellants. After completing the investigation, the police filed a charge-sheet against appellants Pinki and Mangal and co-accused Ramesh Kumar, Niyaz Mohd. and Gatu Lal before the Munsif and Judicial Magistrate, First Class, Udaipur, who in his turn committed the case to the learned Sessions Judge, Udaipur. The Sessions Judge charged the accused persons for the offences punishable under sections 147, 366, 376 Indian Penal Code, who pleaded not guilty and claimed trial. The learned Sessions Judge by his impugned judgment acquitted all three accused persons for the offences under sections 147, 366 and 376 Indian Penal Code, but found the present appellants guilty of the offence under section 342 I.P.C. and convicted and sentenced them in the manner detailed adultra. Hence, this appeal. 3. I have heard the learned counsel for the appellants and the learned public prosecutor at length and carefully perused the record of the lower court in exten so. 4. Hence, this appeal. 3. I have heard the learned counsel for the appellants and the learned public prosecutor at length and carefully perused the record of the lower court in exten so. 4. Shri Bishnoi, Advocate appearing on behalf of the appellants has vigorously contended that though the Sessions Judge has disbelieved the entire prosecution story, still then on the basis of conjectures and surmises has illegally convicted the appellants under section 342 I.P.C. According to him, this finding of the learned Sessions Judge is not based on record and is perverse. 5. The learned Public Prosecutor has argued that since prosecutrix Smt. Rupli was recovered on the basis of the information given by the appellants from a shop, the offence under section 342 I.P.C. was clearly made out against them. 6. I have given my careful consideration to the rival contentions. 7. The learned Sessions Judge has held that it was not proved that three accused persons had entered into the hut of prosecutrix Mst. Rupli and had forcibly taken her away. He has further held that Mst. Rupli was not a minor and that even if she had accompanied the accused persons, she has gone at her own accord, and that no rape was committed on her. He, thus, disbelieved the entire prosecution story and acquitted the appellants and the other co-accused persons for the offences punishable under sections 147, 366 and 376 Indian Penal Code. 8. It is significant to note that the appellants and other co-accused persons were not charged for the offence punishable under section 342 I.P.C. P.W. 14 Smt. Rupli did not identify appellant Mangal even during the test parade. More-so, she did not identify appellants in the court. She has specifically stated that she did not know the appellants and that at the time of alleged incident it was a dark night. She, however, stated that after committing rape with her the accused per- sons had taken her to a room and confined her there and that thereafter they had gone away for bringing liquor. She stated that thereafter the police recovered her after opening the door of the said room. She has not (sic) stated that at the time of her recovery neither the appellants were present nor the appellants had taken her to the said room and confined her there. She stated that thereafter the police recovered her after opening the door of the said room. She has not (sic) stated that at the time of her recovery neither the appellants were present nor the appellants had taken her to the said room and confined her there. Thus, she has not implicated the appellants at all for her alleged wrongful confinement. 9. P.W. 15 Nathu, the husband of presecutrix, has also not identified the appellants in the court. He has not deposed anything about the alleged illegal confinement of his wife. 10. P.W. 20 Raghunath Singh has stated that on 31.12.1977 appellants Pinki and Mangal had volunteered information under section 27 of the Evidence Act informing that they could get Smt. Rupli recovered from shop No. 12 of the Janta Market, Udaipur vide information memos Ex. P.26 and Ex. P.27 respectively. According to him, on the same day at about 10 A.M. appellant Pinki had opened the lock of shop No. 12 of Janta Market from his key and got prosecutrix Smt. Rupli recovered from there in presence of Motbirs P.W. 10 Naru Mal and P.W. 12 Banshi. In his cross-examination he has informed that owner of that shop was Deepak Kumar Sindhi, but he has failed to assign any reason as to why he did not examine him.He has also not produced the key alleged to have been given by appellant Pinki or the lock of the Shop in the court. Motbirs P.W. 10 Naru and P.W. 12 Banshi Lal have not corroborated his testimony.P.W. 10 Naru Mal has specifically stated that he was called by the police in Janta Market, Udaipur and asked him to put his signatures on memo Ex. P.19 and that at that time the prosecutrix was not present there. It is surprising to note that this witness has not been declared hostile. P.W. 12 Banshi has stated that he was called by the police at Janta Bajar, where shop No. 12 was already open, that Smt. Roopli was not recovered from there and that appellant Pinki had not given any key. This wit- ness was declared hostile. Thus, the Motbirs have not proved the contents of the recovery memo Ex. P.19 and not corroborated the Investigation Officer. There is no other evidence regarding the alleged recovery of Smt. Roopli. This wit- ness was declared hostile. Thus, the Motbirs have not proved the contents of the recovery memo Ex. P.19 and not corroborated the Investigation Officer. There is no other evidence regarding the alleged recovery of Smt. Roopli. Thus, the prosecution evidence regarding the alleged wrongful confinement and the recovery of the prosecutrix is quite vague, self contradictory and unreliable. As mentioned earlier, the learned Sessions Judge had even not charged the appellants for the offence punishable under section 342 Indian Penal Code, nor put any specific question incriminating them on this count under Section 313 Cr.P.C. Hence, there is not an iota of evidence on record to show that Smt. Rupli was at all wrongly confined by the appellants. Therefore, in my considered opinion, the learned Sessions Judge has misread the evidence and his findings are against the recored and perverse. Hence he has committed gross error of law and fact in convicting the appellants for the offence punishable under section 342 I.P.C. and the impugned order cannot be sustained. 11. The up-shot of the above discussion is that I accept this appeal, set aside (appellants) conviction and sentence passed by the Sessions Judge, Udaipur and acquit them for the offence under section 342 Indian Penal Code.Appeal accepted. *******