JUDGMENT : 1. The appellants by way of this appeal have challenged the judgment of conviction dated 28.08.2002 passed by the Fifth Additional Sessions Judge (FTC), Surajpur District Surguja (C.G.) in Sessions Trial No. 417/1996 whereby and whereunder, they have been convicted and sentenced as under :- Conviction U/s. Sentence RI. Fine In default of payment of fine 366 of the Indian Penal Code 4 Years __ __ 2. In brief, the prosecution story is that the prosecutrix on the date of incident was a student of class 8th and her age was below 16 years, Before the date of incident the accused appellant – Thakur used to visit her house to seduce her on the pretext of marriage and providing service at Balwadi. On the date of incident appellant No. 1 along with appellant No. 2 after seducing the prosecutrix has taken her to the house of Dakhal Sai on the moped where he has committed rape on her for 12 days. The uncle of the prosecutrix PW-7 had searched her in the village, thereafter, he informed to father of the prosecutrix PW-1 about the incident. Then it was revealed that prosecutrix is in the house of accused Thakur Ram. The father of the prosecutrix lodged FIR on 21.05.1996 at Police Station Premnagar (Ex.P/1). On 21.05.1996 during investigation it was revealed that prosecutrix was found with the accused. The seizure memo Ex.P/15 to this effect was prepared. The prosecutrix was sent to medical examination and after usual investigation, the prosecution has submitted final report for commission of offence under Sections 363, 366 and 373 IPC before the concerning Judicial Magistrate, who committed the matter to the learned District Judge, Surguja which was subsequently transferred to learned Fifth Additional Sessions Judge, Surajpur. 3. The prosecution to bring home the guilt of the appellants has examined the witnesses namely Shivpal Sai (PW/1) Purshottam (PW/2) Sukhram (PW/3) Baijnath (PW/4) Dr. Amrit Lal Soni (PW/5) Dr. Snehlata Kujur (PW/6) Budhman (PW/7) Kushalsingh (PW/8) Smt. Jagmania Bai (PW/9) Smt. Bandano Bai (PW/10) Dhirsai (PW/11), prosecutrix (PW/12) Nandudas (PW/13) Ku. 3. The prosecution to bring home the guilt of the appellants has examined the witnesses namely Shivpal Sai (PW/1) Purshottam (PW/2) Sukhram (PW/3) Baijnath (PW/4) Dr. Amrit Lal Soni (PW/5) Dr. Snehlata Kujur (PW/6) Budhman (PW/7) Kushalsingh (PW/8) Smt. Jagmania Bai (PW/9) Smt. Bandano Bai (PW/10) Dhirsai (PW/11), prosecutrix (PW/12) Nandudas (PW/13) Ku. Satilobai (PW/14) N.B. Singh, I.O. (PW/15) and exhibited documents FIR dated 21.05.1996 (Ex.P/1), consent letter (Ex.P/2) Supurdnama (Ex.P/3) Seizure memo (Ex.P/4 – EX/8), letter to Civil Surgeon for examination of the accused (Ex.P/9) report of medical examination of accused (Ex.P/9) request for medical examination of clothes of accused (Ex.P/10-A) opinion of the doctor (Ex.P/10), medical examination of the prosecutrix (Ex.P/11) opinion of Doctor (Ex.P/12) statement of Kushalram (Ex.P/13) statement of prosecutrix (Ex.P/14) Najri Naksa (Ex.P/16) letter to SDO for medical examination of the prosecutrix (Ex.P/17) request for medical examination of prosecutrix (Ex.P/18), application for examination of clothes of the prosecutrix request for medical examination of prosecutrix (Ex.P/19) arrest memo request for medical examination of prosecutrix (Ex.P/20-21) seizure memo (Ex.P/22) report of forensic laboratory Sagar (Ex.P/23). The appellants were examined under Section 313 CrP.C. wherein they pleaded innocence and false implication. Prosecutio exhibited documents statement of prosecutrix’s father (Ex.D/1) statement of prosecutrix’s uncle (Ex.D/2) and statement of prosecutrix (Ex.D/3). 4. The learned trial Court while appreciating the evidence and material on record has given its finding at page 9 that the prosecution has seized the mark-sheet of prosecutrix and Dakhil Kharij register through seizure memo Ex.P/4 and Ex.P/5 but these documents have not been exhibited, therefore, it is not proved that on the date of incident the age of the proscutrix is below 18, as such it cannot be presumed that the prosecutrix whose age is below 18 was kidnapped from the lawful guardianship of her father, as such, offence under Section 363 is not proved beyond reasonable doubt and accordingly the appellants were acquitted from the commission of offence under Section 363 IPC. 5. The learned trial Court while considering the evidence with regard to commission of offence under Section 376 IPC has considered the statement of PW/6 Dr. Snehlata Kujur who has stated that hyman of prosecutrix was old ruptured, as such, no opinion with regard to immediate sexual intercourse can be given. 5. The learned trial Court while considering the evidence with regard to commission of offence under Section 376 IPC has considered the statement of PW/6 Dr. Snehlata Kujur who has stated that hyman of prosecutrix was old ruptured, as such, no opinion with regard to immediate sexual intercourse can be given. The learned trial Court has also recorded its finding that if the accused forcefully committed sexual intercourse with her this should have been intimated to her aunt which has not been done by her though the prosecutrix remained in the house of aunt of the appellant No. 1 for one month, thus, the offence under Section 376 IPC against appellant No. 1 has not been proved beyond reasonable doubt by the prosecution. But the learned trial Court convicted the appellants for commission of offence under Section 366 IPC and sentenced them to undergo R.I. for four years. Being aggrieved with this order the appellants have preferred present appeal. 6. The learned counsel for the appellants would submit that the trial Court though in its para 9 of judgment has recorded its finding that the prosecution has failed to prove the age of the prosecutrix below 18 years, has acquitted them for commission of offence under Section 363 of the IPC. As such, conviction of appellants for commission of offence under Section 366 is erroneous and deserves to be set aside by this Court. He would further submit that on the basis of conduct of prosecutrix no kidnapping or abducting has been proved against the appellants and in fact the prosecutrix was a consenting party, as such finding of guilt of appellants for the offence under Section 366 IPC is illegal. He would further submit that there is no clinching evidence brought on record by the prosecution that prosecutrix was compelled by the appellants for marriage, hence, no offence under Section 376 IPC is made out. 7. The learned counsel for the State Ms. Abhyunnati Singh would submit that the prosecutrix has deposed before the trial Court that she was taken to District Court where proceedings for registration for marriage were initiated as the prosecutrix was compelled to sign on the stamp papers for registration of marriage which she refused, therefore, there is clinching evidence to record a finding of guilt for commission of offence of Section 366 IPC. 8. 8. I have heard learned counsel for the parties and perused the record of the trial Court with utmost satisfaction. 9. From the evidence and material on record the issue to be determined by this Court in the appeal is whether the finding recorded by the trial Court with regard to commission of offence under Section 366 IPC is legal and justified or not. 10. For better understanding the issue raised in the appeal it is expedient for this Court to extract Section 366 IPC which reads as under :- 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]. 11. From bare perusal of Section 366 IPC it is quite vivid that to attract this Section it is necessary for prosecution not only to lead evidence to prove kidnapping simpliciter but also requires them to lead evidence to portray the specific intention of the kidnapper, therefore, in order to constitute an offence under this Section beside proving the factom of abduction the prosecution has to prove that the said abduction was one of the purposes mentioned in the Section. 12. The kidnapping has been defined in Sections 359, 360 and 361 IPC which read as under :- 359. Kidnapping.—Kidnapping is of two kinds: kidnapping from 1[India], and kidnapping from lawful guardianship. 360. Kidnapping from India.—Whoever conveys any person beyond the limits of 1[India] without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from [India]. 361. Kidnapping.—Kidnapping is of two kinds: kidnapping from 1[India], and kidnapping from lawful guardianship. 360. Kidnapping from India.—Whoever conveys any person beyond the limits of 1[India] without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from [India]. 361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person. 13. Abduction has been defined in Section 362 IPC which reads as under :- 362. Abduction.—Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. 14. Thus, for attracting Section 366 the victim is subjected to kidnapping, abducting or inducing to compel for marriage. These three ingredients have to be fulfilled. Now this court has to examine whether these basic ingredients are proved beyond reasonable doubt by the prosecution or not on basis of collected evidence material on record . The prosecutrix PW/12 was examined before the trial Court wherein in the cross examination at paragraph 9 she has admitted that appellant No. 1 kept her in the house of his aunt and he used to leave her in the house for work and she has also admitted that she has gone to Ambikapur by bus Dandgaon where so many passengers were seating but she has not made any attempt to rescue from the clinches of appellants. She has also admitted in the cross examination that from Ambikapur they have gone to village Nayagaon on the motorcycle where aunt of the appellant No. 1 was residing and his aunt used to give her food. She used to go out of the home also. She has also stated that to attend call of nature she goes to out of the house. She has also stated that she has not informed to the police regarding forceful signature on the documents for marriage. She used to go out of the home also. She has also stated that to attend call of nature she goes to out of the house. She has also stated that she has not informed to the police regarding forceful signature on the documents for marriage. The prosecutrix in her statement which was exhibited Ex.D/3 has stated that appellant No. 1 has told her that he likes her and wants to keep her as his wife. She has also stated that earlier she did not agree for it but later on she has developed love affection for appellant No. 1. 15. From appreciation of the above stated evidence of the prosecutrix it is quite vivid that there was sufficient opportunity for the prosecutrix to rescue herself from clinches of appellant No. 1 but she remained in the house of aunt for one month. Even when she was traveling from Ambikapur to Dandgaon lot of passengers were seating in the bus but she has not made any complaint to any co-passenger. Even when she was residing at Nayagaon in the house of appellant No. 1’s aunt she used to go out to attend natural call from where she could have fled. She has also stated that even when the aunt was at home she used to go out of the house which clearly proves that there was no restriction for her movement. Even the prosecution has not produced the so called stamp paper in which it has been alleged that the appellant No. 1 has forcefully compelled her to put signature. This clearly demonstrates that the prosecutrix was a consenting party. The prosecution is also unable to prove that the age of the prosecutrix is below 18 and it has rightly been observed by the learned trial Court in its judgment at paragraph 9, which clearly proves that the prosecution has failed to prove the commission of offence by the appellants under Section 366 of the IPC. The issue of Section 366 IPC has come up for consideration before the Hon’ble Supreme Court in case of Chote Lal and Another vs State of Haryana, (2018) 6 SCC 664 wherein it has held as under:- 2. Having appreciated the entire facts and circumstances of this Case, we are of the view that the conviction of neither of the appellants on any of the courts can be maintained. Having appreciated the entire facts and circumstances of this Case, we are of the view that the conviction of neither of the appellants on any of the courts can be maintained. The High Court has failed to record any finding which was necessary to be recorded for the purpose of maintaining their conviction under Section 366 Indian Penal Code. By merely finding that they abducted Lajwanti, the charge under Section 366 could not be held to have been proved It was further necessary to find that they had abducted the woman for any of the purposes mentioned in Section 366. In the absence of such a finding that charge fails against both the appellants.” 16. Hon'ble Supreme Court in case of Kavita Chandrakant Lakhani vs State of Maharashtra and Another, (2018) 6 SCC 664 has held as under:- 21. This Court has time and again held that mere abduction does not bring an accused under the ambit of Section 366 IPC. It must be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. 22. It is evident on record that Respondent No. 2 and the appellant herein were in a relationship which was known to their families also. The primary allegations are that Respondent No. 2 took her forcibly to his house. But it was not with intent to seduce her to illicit intercourse. Actually, as per the prosecutrix, Respondent No. 2 first expressed his love for her and afterwards he started beating her with waist belt and using his hands which fact is evident on record. The statement of being molested at the hands of Respondent No. 2 was not given at once and was given later. The very same acts of Respondent No. 2 do not show his intent to abduct her in order to marry her against her will or to force her or seduce her to illicit intercourse. 23. The statement of being molested at the hands of Respondent No. 2 was not given at once and was given later. The very same acts of Respondent No. 2 do not show his intent to abduct her in order to marry her against her will or to force her or seduce her to illicit intercourse. 23. Even if it is proved that Respondent No. 2 forcibly took her to his house, but the later version that his intention was to marry her or to force or seduce her to illicit intercourse is clearly an afterthought. At the highest, the case can be put that both of them were in a relationship and due to sudden outbreak of emotions or due to sense of insecurity on the part of Respondent No. 2, the above act was done. Further, the decisions relied upon by learned senior counsel for the parties have no application to the facts of the present case. 24. In view of the foregoing discussion, we are of the opinion that the charge under Section 366 of the IPC is not maintainable and the High Court was right in upholding so....” 17. Again, Hon’ble Supreme Court in case reported 2020 SCC online 1118 in case of Moh. Yousuff alias Moula and Another vs State of Karnataka, reiterating its earlier view relying upon the judgment of Kavit (supra) has held at paragraph 9 as under :- 9. Section 366 clearly states that whoever kidnaps/abducts any woman with the intent that she may be compelled or knowing that she will be compelled, to either get her married or forced/seduced to have illicit intercourse they shall be punished with imprisonment of up to ten years and fine. The aforesaid Section requires the prosecution not only to lead evidence to prove kidnapping simpliciter, but also requires them to lead evidence to portray the abovementioned specific intention of the kidnapper. Therefore, in order to constitute an offence under Section 366, besides proving the factum of the abduction, the prosecution has to prove that the said abduction was for one of the purposes mentioned in the section. In this case at hand the prosecution was also required to prove that there was compulsion on the part of the accused persons to get the victim married. [See Kavita Chandrakant Lakhani v. State of Maharashtra, (2018) 6 SCC 664 ]. 18. In this case at hand the prosecution was also required to prove that there was compulsion on the part of the accused persons to get the victim married. [See Kavita Chandrakant Lakhani v. State of Maharashtra, (2018) 6 SCC 664 ]. 18. Thus from the evidence, material on record and considering the law on the subject it is held that prosecution has failed to prove the commission of offence by appellants under Section 366 of the IPC beyond reasonable doubt, as such the judgment dated 28.08.2002 passed by the Fifth Additional Sessions Judge (FTC), Surajpur District Surguja (C.G.) convicting the appellants deserves to be set aside and accordingly appellants are acquitted from the charges. 19. Accordingly the instant appeal is allowed and judgment dated 28.08.2002 passed by the trial Court is set aside. 20. It is reported that the appellants are on bail, the bail bonds of the appellants shall remain in force for six months as per the provisions of Section 437-A of Cr.P.C.