K. K. ADHIKARI, J. ( 1 ) APPELLANT Dinesh Chandra Verma faced the prosecution under sections 366 and 376 of the Penal Code. The learned Judge, on evaluation of the prosecution evidence tendered, recorded a finding that the sexual intercourse committed by the appellant on Kamlabai (P. W. 1) was with her consent and acquitted the appellant of the said charge. There is no appeal against the acquittal of the appellant under section 376 of the Penal Code by the State. The learned Judge, however, found the charge under section 366 of the Penal Code proved against the appellant. The appellant was accordingly convicted and sentenced to suffer rigorous imprisonment for two years. It is against this judgment that the present appeal is preferred. ( 2 ) THE learned counsel appearing for the appcllant submitted that to institute an offence under section 366 of the Penal Code, there has to be either kidnapping or abduction. It was submitted that the prosecutrix being admittedly of 18 years of age, kidnappingt is out of question: The learned counsel contended that according to section 362 of the Penal Code, which defines abduction the prosecution has to prove either of ingredients, namely: (i) compelling by use of force, or (ii) inducing by deceitful means. to go from any place. It was submitted that further requirement in order to bring home the charge under section 366 of the Penal Code is that such use of force or deceitful meanst has to be with intent to force or seduce to illicit intercourse. According to Shri Jam once the trial Court reached the finding of consent on the part of the prosecutrix, the question of illicit intercourse does not arise. Illicit according to Shri Jam, is what is prohibited by law, such as adultery but sexual intercourse do not prohibited by law, between man and woman, would not fall within the meaning of illicit as occurring in section 366 of the Penal Code. ( 3 ) ON merits, the learned counsel contended that there was neither any force or deceitful means muchless, any intention to force or seduce to illicit intercourse has been proved by the prosecution against the appellant. According to the learned counsel, the prosecutrix Kamlabai (P. W. 1), on her own accord, went with the appellant. ( 3 ) ON merits, the learned counsel contended that there was neither any force or deceitful means muchless, any intention to force or seduce to illicit intercourse has been proved by the prosecution against the appellant. According to the learned counsel, the prosecutrix Kamlabai (P. W. 1), on her own accord, went with the appellant. The conduct of Kamlabai, as revealed in her testimony, completely falsifies the prosecution case the two ( 4 ) IN order to appreciate the arguments raised, it is necessary to advert to the provision of law and the facts as brought out by the prosecution in its evidence. ( 5 ) ABDUCTION per se of an adult person does not constitute any offence but becomes an offence when it is committed with certain intent. It is not disputed that Kamlabai (P. W. 1) was of 18 years of age. In order to prove intention of the appellant to force or by deceitful means induced Kamlabai to illicit intercourse the only evidence tendered by the prosecution is of the prosecutrix, ka m Ia ba i. ( 6 ) ALTHOUGH it is an accepted principle that Tintentiont is very difficult to prove, the same has to be inferred from the attending circumstances, conduct and the evidence brought forth by the prosecution. The first information report (Ex. P-I) dated 22-5-1978 discloses that Kamlabai (P. W. 1) resided with her husband Sureshchandra at Kandra and as her husband has been transferred to Jamunpani, she is staying alone as a tenant in the house of one Genda Master. The report further discloses that on 21-1-1978, she had gone for medical treatment to Dr. Shukla at Dhandhari and while on her way back, the appellant, who is a truck driver, told her that he would leave her at Kandra and forced her to sit on the seat. She also stated that the appellant informed her that he would go to Kandra after dropping some of the persons, including woman, who were already sitting in the Dala of the truck, at Mohgaon. The report further discloses that after leaving the persons, the appellant stopped his truck near a crossing at Mohgaon and committed rape on her. The report also discloses that she was forced to take liquor and food. The report further discloses that after leaving the persons, the appellant stopped his truck near a crossing at Mohgaon and committed rape on her. The report also discloses that she was forced to take liquor and food. It further reads that while proceeding towards Kandra, she jumped from the truck and spent the night in the house of one Sahu. ( 7 ) THE report, does not speak of employment of force. In her deposition, however, the prosecutrix has stated that the appellant told her that he would be going to Kandra and on hearing this, she herself got into the truck and occupied the seat next to the driverts where the appellant was sitting. It does not appear that the appellant used force in making her seat next to him in the truck. Apart from the prosecutrix, there were some more persons, including females, who had occupied Dala of the truck. Jugatiobai (P. W. 2) is one who has been examined by the prosecution. She states that the, prosecutrix occupied the front seat of her own accord. In view of this contradictory statement, the use of force for the purposes of occupying the seat has to be ruled out. ( 8 ) THE question now remains to be determined whether there was any deceitful means adopted by the appellant in inducing the, prosecutrix to board the truck. In her deposing Kamlabai (P. W. 1) has stated that the appellant had told her that he would dropping the other persons at Mohgaon before proceeding Kandra. This also finds place in the report (Ex, P-I) lodged by the prosecutrix (P. W. 1 ). But both, force and deceitful means have to be further judged with, intent to forcet or induce her to illicit intercourse. As seen earlier, intention has to be judged from the attending circumstances. There is no doubt that the appellant had sexual intercourse with her. It also appears from the statement of Kamlabai (P. W. 1) that she was with the appellant for considerable length of time at the crossing near Mohgaon and thereafter, in village Githar near a river. It is inconceivable that had there been any deceitful means employed by the appellant, the prosecutrix would have stayed in his company without her tacit consent. It is inconceivable that had there been any deceitful means employed by the appellant, the prosecutrix would have stayed in his company without her tacit consent. In my opinion, even if, the appellant had the intention to commit illicit sexual intercourse the prosecution has failed to prove that the appellant had the said intention at the time when the prosecutrix boarded the truck. The possibility of developing intention to have sexual intercourse after the prosecutrix boarded the truck can not be ruled out. The finding of Tconsent recorded by the learned Judge for the purposes of the offence under section 376, Indian Penal Code, re-enforces this possibility. The conduct on he prosecutrix as emerging from her evidence, also does not appear to be above board, inasmuch as, while in the report, she has stated that Sureshtchandra is her husband, in the cross examination, she admitted that she is not married to him but staying with him. The statement of the prosecutrix is at also not corroborated by the medical evidence that while jumping off the running truck, she had received injuries on her leg. The evidence of the prosecutrix suggests that she had boarded the truck of her own will as she wanted to go to Kandra and the appellant had told her that he would be going to Kandra after leaving other persons in the truck at Mohgaon. The prosecutrix also -contradicted herself when, in examination in-chief she stated that she did not know the appellant from before and in her cross-examination she admitted that not only she knows the appellant but bad, in fact came to Ghoghri in his truck, with him, for the medical treatment on that day. In view of these statements made by Kamlabai (P. W. 1), it will not be safe to act on her, testimony so far as the question of abduction by use of force or even for the purposes of deceitful means is concerned. The learned Judge has already recorded a finding of consentt on her part for the purposes of the sexual intercourse. In view of this, In my opinion, there was neither any force used or deceitful employed to induce her to force or seduce to illicit intercourse. ( 9 ) FAR as the question of illicit intercourse is concerned, according to the learned counsel, the word illicit means what is not lawful or prohibited by law. In view of this, In my opinion, there was neither any force used or deceitful employed to induce her to force or seduce to illicit intercourse. ( 9 ) FAR as the question of illicit intercourse is concerned, according to the learned counsel, the word illicit means what is not lawful or prohibited by law. The prosecutrix in her statement has deposed that she was living with one Suresh chalidni, though not married. According to Shri Jam, there was no illicit intercourse as the said intercourse between the appellant and the prosecutrix, who is admittedly about 18 years of age and unmarried, is not illicit, when the intercourse was with consent, that is to say, not prohibited by law. In my opinion, the term illicit intercourse cannot be given that broad a meaning as sought by the counsel for the appellant. I am of the view that any intercourse would be illicit when it is not between husband and wife. It, therefore, follows that sexual intercourse, even with a consent, with a girl of 18 years who is unmarried would be illicit though not be prohibited by law. It also follows that the woman need not be married so as to bring sexual intercourse within the meaning of illicit for the purposes of section 366 of the Penal Code. ( 10 ) AT any rate, since the prosecution utterly failed to prove that the appellant intended to seduce her to illicit intercourse when he alleged to have abducted the prosecutrix, the appellant is entitled to acquittal. ( 11 ) THE learned Deputy Government Advocate submitted that the fact the appellant had illicit sexual intercourse subsequent to abduction, proves that the appellant was preparing for the intention to commit the offence. Preparation to commit any offence is not punishable. Intention and the ultimate act has been proved to be with consentt. The testimony of the prosecutrix, as discussed earlier, does not inspire confidence. The totality of the prosecution evidence on record is insufficient to hold the appellant guilty of the offence. 12. Under the circumstances, no case is made out against the appellant. Accordingly, the appeal is allowed and the conviction and the sentence of the appellant under Section 366 of the Penal Code are set aside. The appellant is acquitted of the charge. The appellant, who is on bail, need not surrender. His bail bonds stand discharged. .