JUDGMENT 1. - Heard the learned counsel for the appellants and learned Public Prosecutor. Since both the appeals arise from the same judgment, therefore, they were heard together and we propose to dispose of them by a common judgment. 2. In Sessions case No. 52/95, State v. Prem Chand and others three persons namely Prem Chand alias Pema, Smt. Ganeshi, and Kalu were tried by the learned Additional Sessions Judge No. 1, Udaipur on charges under Sections 366 and 343 of the Indian Penal Code. Kalu was also charged under Section 383 read with 34 of the Indian Penal Code. Above named accused persons pleaded not guilty to the charges framed against them, therefore, trial was conducted. During trial Kalu expired, therefore, proceedings against him were dropped on 26th June, 1996 and trial continued against Prem Chand and Smt. Ganeshi. Another co-accused Girdhari who was also named in the charge-sheet submitted by the Police was absconding, therefore, he could not be tried. After trial Prem Chand as well as Smt. Ganeshi were acquitted of the charge punishable under Section 343 of the Indian Penal Code but both of them were convicted under Section 366 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs. 200/- and to undergo further simple imprisonment for 3 months for default in payment of fine. Smt. Ganeshi as well as Prem Chand have filed separate appeals against their conviction as well as sentence. 3. The facts of the case may be briefly summarised as below; On 16th May, 1995 at 6.10 p.m. Dola Ram submitted the First Information Report Ex.R 1 at Police Station Gogunda and stated there in that on 8th May, 1995 his wife Smt. Kanku aged 30 years had left his house with Ganeshi with a view to go to her father's house situated in Baroda but she did not reach there and when she did not return for three days he went to his father-in-law's house and came to know that Kanku had not reached. It was further stated in the First Information Report Ex.P 1 that a search was conducted to trace out Smt. Kanku and during search Smt. Kanku's brother Pema and 3-4 other persons reached Sisarma near Udaipur and there they got information that Girdhari, Prema and Kalu had brought one woman with them and that they had departed with her for going to Udaipur. When the search party including the brother of Smt. Kanku reached "kachchi" basti near Udaipur, the members of search party saw Kalu S/o Dalu standing in front of a house. As soon as Kalu saw the search party he confronted the search party, showered abuses and appeared to be ready for a violent confrontation. But in view of the fact that search party consisted of 4 persons, he ran away. Thereafter Smt. Kanku came out of the house she was weeping. She was brought to the house of her husband by her brother. It was also stated in the First Information Report Ex.R 1 that after Smt. Kanku started from her house she met Kalu, Girdhari and Prema at some distance. They were on motor cycle, they left the motor cycle and they started travelling on foot with Smt. Kanku and Smt. Ganeshi. Ganeshi had expressed her desire to go to Baroda with Smt. Kanku when she startecf from the village but later on she expressed her desire to purchase some clothes and, therefore, she proposed to Smt. Kanku that both of them would go to Udaipur and after purchasing clothes they would return. It was also stated in the First Information Report that Smt. Kanku and Smt. Ganeshi accompanied the three persons named in the report to Sisarma where the house of the father-in-law of Girdhari was situated. Smt. Kanku, Ganeshi, Kalu, Girdhari and Prem Chand stayed at Sisarma during night and in the following morning Ganeshi went away leaving Smt. Kanku at Sisarma. After that Smt. Kanku was forcibly kept at Sisarma and she was advised to become the wife of Kalu by way of Nata and was also threatened with murder in the event of her refusal. On the following night Kalu and Girdhari deprived Smt. Kanku of her silver `kadas' which she was putting on her legs. At Sisarma Smt. Kanku was left for four days and thereafter she was taken to `kachchi basti' near Udaipur in a tempo and was confined there. On the following night Kalu and Girdhari deprived Smt. Kanku of her silver `kadas' which she was putting on her legs. At Sisarma Smt. Kanku was left for four days and thereafter she was taken to `kachchi basti' near Udaipur in a tempo and was confined there. She came out of the hoyse when her brother and 2-3 other persons reached the `kachchi basti'. On the basis of the report submitted by Dola Ram the Police registered a case under Section 366, 343 and 384 of the Indian Penal Code. After investigation the Police submitted a charge-sheet under Section 173 of the Criminal Procedure Code in the Court of learned Civil Judge (Junior Division) and Judicial Magistrate First Class, Gogunda who took cognizance of the offences under Sections 366, 343, 384 and 120-B of the Indian Penal Code. Prem Chand, Smt. Ganeshi and Kalu were challaned by the Police and Girdhari was reported to be absconding. Since the offence punishable under Section 366 is triable exclusively by the Court of Sessions, the learned Judicial Magistrate committed the case to the Court of learned District and Sessions Judge, Udaipur who made over the case to the learned Additional District and Sessions Judge No. 1, Udaipur for trial. Smt. Ganeshi and Prem Chand were charged under Sections 343 and 366 of the Indian Penal Code. Kalu was charged under Sections 343, 366 and 383 read with 34 of the Indian Penal Code. All the three accused persons pleaded not guilty to the charges. 4. The prosecution examined Dola (PW 1), Smt. Kanku Bai (PW 2), Keshu (PW 3), Shanker (PW 4), Pema (PW 5) and Kishan Das (PW 6) in support of the prosecution case. Kalu expired during trial, therefore, proceedings against him were dropped. Smt. Ganeshi and Prem Chand were examined under Section 313 of the Criminal Procedure Code. They did not adduce any witness in defence. After taking into consideration the evidence produced by the parties, and the arguments the learned Additional District and Sessions Judge acquitted Prem Chand and Smt. G'aneshi of the charge punishable under Section 343 of the Indian Penal Code but convicted them under Section 366 of the Indian Penal Code and imposed sentence as mentioned above. 5. After taking into consideration the evidence produced by the parties, and the arguments the learned Additional District and Sessions Judge acquitted Prem Chand and Smt. G'aneshi of the charge punishable under Section 343 of the Indian Penal Code but convicted them under Section 366 of the Indian Penal Code and imposed sentence as mentioned above. 5. The learned counsel for the appellant Prem Chand has submitted that in this case there is no evidence to prove the charge under Section 366 of the Indian Penal Code beyond reasonable doubt and, therefore, the appellant is entitled to be acquitted. In the alternative he has submitted that the appellant Prem Chand is in jail and he has already undergone imprisonment for 1 year 4 months and 10 days and that he is; not alleged to have taken any active part and, therefore, he should be sentenced to imprisonment already undergone by him. Smt. Ganeshi is on bail. The learne d Public Prosecutor has supported the conviction as well as sentence passed by the learned Additional Sessions Judge and prayed for the dismissal of both the appeals. 6. I have carefully considered the evidence produced by the prosecution and the arguments advanced by the parties. Dola Ram (PW 1) is the husband of Smt. Kanku. He is the author of. the First Information Report Ex.P 1 and he has given statement to the effect that Smt. Kanku had left his house for the purpose of going to her father's hous e but when she did not return even after the expiry of 2-3 days he went to his father-in-law's house and on enquiry he came to know that Smt. Kanku had not reached there. Then he informed his brother-in-law that Smt. Kanku and Ganeshi both hi ad left his house 3 days ago. It is also stated by Dola Ram (PW 1) that Ganeshi user,I to live with him and after returning from his in-law's house he made enquiries from Smt. Ganeshi about Smt. Kanku and he was informed by Smt. Ganeshi that she had accompanied Smt. Kanku upto Madar and that she did not accompany Smt . Kanku upto Baroda. It is also stated by Dola Ram (PW 1) that Ganeshi user,I to live with him and after returning from his in-law's house he made enquiries from Smt. Ganeshi about Smt. Kanku and he was informed by Smt. Ganeshi that she had accompanied Smt. Kanku upto Madar and that she did not accompany Smt . Kanku upto Baroda. It is also stated by Dola Ram (PW 1) that he conducted a search for Smt. Kanku, with his lorother-in-law and both of them went to Udaipur and th ereafter went to Sisarma where information was received to the effect that Kalu, Gi rdhari and Prem Shanker had stayed at Sisaram and one woman had stayed the re for one day and the another woman had stayed for 4 days and after that they had gone away. It was also stated by Dola Ram (PW 1) that fronn Sisarma he w ent to `Kachchi basti' (near Udaipur) and there Kalia was standing] near the houses and on seeing him Kalia ran away but Girdhari came out with a k.nife and at that time a crowd gathered and Smt. Kanku came out of the house. She was weeping}. And thereafter Smt. Kanku was taken to his house and there she gave information about the incident, the remaining portion of the statement of Dola Ram (PW 1) is the same as given in the First Information Report Ex.R 1 and is based on the information given by Smt. Kanku. 7. Smt. Kanku (PW 2) is the lady who is alleged to have been abducted for the pu rpose of forcing h er to become the wife of Kalu by way of Nata inspite of the fact that She was a legall y wedded wife of Dola Ram (PW 1). 8. Keshu (PW 3) was a member of the search party which went to Kachchi basti near Udaipur in search of Smt. Kanku and in whose presence Smt. Kanku came out of the house and told about the incident. 9. shanker (PW 4) is another member of the search party. Pema (PW 5) is another member of the search party and Kishan Das (PW 6) is the investigating Officer who recorded the statements of the witnesses during investigation and arrested Smt. Ganeshi, Prem Chand and Kalu. 10. Smt. Kanku Bai (PW 2) is the most important witness in this case. shanker (PW 4) is another member of the search party. Pema (PW 5) is another member of the search party and Kishan Das (PW 6) is the investigating Officer who recorded the statements of the witnesses during investigation and arrested Smt. Ganeshi, Prem Chand and Kalu. 10. Smt. Kanku Bai (PW 2) is the most important witness in this case. She has given statement to the effect that she started from her house with her I sister-in-law Smt. Ganeshi at about 10.00 a.m. On the way they reached `Nala' and I she expressed her desire to take bath there and while she was bathing in `Nala' l Kalu reached there and picked her bag and Ganeshi and Girdhari both caught her I by hand told that in place of bathing in `Nala' they would bath at Pal. It is also I stated by Smt. Kanku (PW 2) that Ganeshi expressed desire to purchase clothes I and asked her to go to the city and Ganeshi as well as three other persons made I her sit in a bus in which she reached Rampura and thereafter she was taken in a tempo to Sisarma where she was kept in a room and there Ganeshi told her that' she would go to the market in the next morning. Kanku (PW 2) further added that' at Sisarma there was one other woman and she took a bath with Ganeshi and the other woman and thereafter she asked Ganeshi to start from the house and at that time Kalu caught her hair and Girdhari threatened to kill her in the event she would leave the house and at that time Ganeshi went away telling the accused persons I that they were free to do whatever they liked provided they brought clothes for her. It was also stated by Smt. Kanku (PW 2) that she was taken to `Kachchi Basti' for 2-3 days and all the three accused persons took away her silver `kadas' in the town and on account of fear she allowed them to take her silver `kadas' from her and in the `kachchi basti' when she saw Keshu, Shanker and Pema she went out of the house and reached near them. It is also stated by her that accused persons had taken her away with them with a view to keep her in the house of Kalia. It is also stated by her that accused persons had taken her away with them with a view to keep her in the house of Kalia. There is nothing in the examination-in-chief and cross-examination of Smt. Kanku (PW 2) ; to indicate that any person asked her to indulge in illicit inter-course or to marry any person against her will. All that she has deposed is that she was taken to `kachchi basti' via Sisarma by Ganeshi and other accused persons and that at `kachchi basti' near Udaipur silver `kadas' were taken away against her will by the accused persons. No charge under Section 383 read with 34 of the Indian Penal Code has been framed against the appellant Ganeshi and Prem Chand, therefore, j it is not necessary to consider whether the allegation regarding taking away of silver `kadas' from Smt. Kanku against her will is true. So far as confinement against her will is concerned the learned Additional Sessions Judge has acquitted f the appellants of the charge under Section 343 of the Indian Penal Code and the I State has not filed any appeal against the acquittal, therefore, the order of acquittal in respect of charge under Section 343 of the Indian Penal Code has become final and cannot be considered in this appeal filed against conviction under Section 366 of the Indian Penal Code. The only question arising for consideration is whether the charge under Section 366 of the Indian Penal Code is proved beyond reasonable doubt against the appellants and Smt. Kanku (PW 2) is the solitary witness on whose evidence the prosecution has placed reliance for proving the charge under Section 366 of the Indian Penal Code Smt. Kanku (PW 2) was more than 18 years old on the date of alleged occurrence and, therefore, no question of kidnapping arises. So far as abduction is concerned abduction per se is not an offence unless abduction is committed with one or more of the intentions mentioned in Sections 364-366 of the Indian Penal Code. So far as abduction is concerned abduction per se is not an offence unless abduction is committed with one or more of the intentions mentioned in Sections 364-366 of the Indian Penal Code. For the purpose of Section 366 of the Indian Penal Code it is necessary for the prosecution to establish that the lady was abducted or was kidnapped with the intent that she may be compelled, or that the kidnapping or abduction took place with a knowledge that she was likely to be compelled, to marry any person against her will, or in order that he may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. A bare reading of Section 366 of the Indian Penal Code shows that unless the intention or the knowledge required by Section 366 is established beyond reasonable doubt the offence under this Section will not be made out. In the instant case there is nothing in the statement of Smt. Kanku (PW 2) to show that she was taken to Sisarma and thereafter to `kachchi basti' near Udaipur with the intention or knowledge required by Section 366 of the Indian Penal Code. It may be pointed out that Ganeshi who accompanied Smt. Kanku (PW 2) from the house of the complainant was a cousin of the complainant Dola Ram and she was living with Dola Ram. The prosecution has not produced any evidence to show that there was any previous intimacy between Ganeshi and the accused persons namely, Prem Chand and Girdhari. Kalu is reported to be the brother of Ganeshi. In the circumstances of the case the story that Ganeshi and kalu both wanted Smt. Kanku to become the wife of Kalu against her will appears to be highly doubtful. It cannot be easily believed that Ganeshi who was staying in the house of Dola Ram (PW 1) would become a party to conspiracy to forcibly make Smt. Kanku a mistress of Kalu. It is also not proved by the prosecution that Prem Chand and Girdhari had any motive for taking part in the alleged abduction of Smt. Kanku. 11. In view of the above circumstances it is difficult to hold that charge under Section 366 of the Indian Penal Code has been brought home against the appellants beyond reasonable doubt. It is also not proved by the prosecution that Prem Chand and Girdhari had any motive for taking part in the alleged abduction of Smt. Kanku. 11. In view of the above circumstances it is difficult to hold that charge under Section 366 of the Indian Penal Code has been brought home against the appellants beyond reasonable doubt. Consequently, these appeals deserve to be allowed and are hereby allowed. The conviction of the appellants under Section 366 of the Indian Penal Code and sentence imposed on them by the learned Additional Sessions Judge No. 1, Udaipur is hereby set aside and quashed and both the appellants are hereby acquitted of the charge under Section 366 of the Indian Penal Code. Smt. Ganeshi is on bail. Her bail bonds are hereby cancelled. Prem Chand is in jail. He shall be released forthwith if he is not wanted in any other case.Appeal Allowed. *******