Criminal Appeal (SJ) No.265 of 1997 **** Against the judgment, dated 30th August, 1997, passed by Sri Bipin Dutta Pathak, Additional Sessions Judge, II, Aurangabad, in S. Tr. No. 15 of 1993/2 of 1997 **** 1. Lalan Paswan, son of Timal Paswan, resident of village Barem, P.s. Nabinagar, district Aurangabad 2. Brijnandan Paswan, son of Bigan Paswan, resident of village Sori, P.S. Mali, district Aurangabad .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Krishna Pd. Siuha, Sr. Adv. with M/S Meena Singh & Rakesh Singh, Advs. For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the petitioner and the State. 2. Both appellants have been convicted under Section 366 of the Penal Code and appellant no. 1, Lalan Paswan, has been sentenced to undergo rigorous imprisonment for three years and appellant no. 2, Brijnandan Paswan, has been sentenced to undergo rigorous imprisonment for four years. 3. The prosecution case, as alleged that on the date of occurrence Lakhamaniya Devi came to the house of the informant and asked 2 Kamla Devi, the daughter of the informant that Sangita Devi, wife of Lalan Paswan, is calling her for visiting cinema and they are waiting for her. The informant, Tetri Devi, forbid her daughter, Kamla Devi, not to go with them, but, Kamla Devi stated that Sagita is her friend and so it is necessary to go with her and Kamala went to the house of Lakhaminya Devi and, thereafter, Kamla Devi, Sangita, Lalan Paswan, brother-in-law of Lalan Paswan, all went to the Aurangabad for visiting cinema. However, they did not return. The informant made enquiry about the whereabouts of her daughter, but, in vain and so the case was lodged at the police station on 21.10.1991. The statement of the victim was recorded on Monday with regard to an occurrence of preceding Thursday. Hence, fardbeyan was recorded four days after the occurrence. 4. On the fardbeyan, first information report lodged and after investigation charge sheet submitted. 5. However, during the trial ten witnesses have been examined. Out of the ten witnesses, P.Ws. 4, 5, 6 and 10 have turned hostile, P.Ws. 7 and 8 were tender, P.Ws. 1, 2 and 3 have come to support the prosecution case and P.W. 9 is the investigating officer. The witnesses come to support the prosecution case that the victim went to the house of Lakhaminya Devi, with her own sweet will on intimation by Lakhminya Devi, thereafter, Lakhaminya, Sangit, Lallan, Sangita and Kamla went to Aurangabad and, thereafter, the daughter of the informant did not return. 6. The trial Court, taking into consideration evidence, convicted the appellants as mentioned above and acquitted the co-accused, Lakhminya Devi and Sangita. 7. However, for Section 366 of the Penal Code, two ingredients 3 are required to be proved. The victim has been taken away by force or by enticement. Sondly, it is required to be proved that the kidnapping and abduction has been made with an intent that she may be compelled marry any person against her will or she may be forced to adduce illicit intercourse with any other person. P.Ws. 1, 2 and 3 have stated in their evidence that Kamla Devi went along with Lakhaminya, Sangit, Lalan paswan and nandosi of Sangita along with Kamla towards Aurangabad for visiting cinema and, thereafter, Kamla Devi did not return. P.W. 9 is the investigating officer and he has stated that he did not find the whereabouts of the victim. From the evidence adduced by the prosecution, there is no evidence that the victim was taken under use of a force or enticement nor there is evidence that she was taken with the intent that she may be compelled to marry or to have illicit intercourse with any other person, hence, the ingredients of Section 366 of the Penal Code having not been established by the prosecution. 8. Hence, the order of conviction and sentence recorded by the lower Court is hereby not sustainable and is set aside. 9. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 30th day of November, 2011, N.A.F.R., S.A.