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13. At the outset the testimony of PW 6 is taken into account, by which it is found that the victim girl PW - 6 had stated that she was taken away by the accused and the co-accused person from Ravidas Mohalla to Banaras. She had also stated that her cousin sister was also kidnapped and the accused and his accomplice were having revolver in their hand and victims were threatened to kill by the accused persons, if they refused to obey their orders and that is why she had also accompanied to them out of fear. Further it is found from her deposition that she did not disclose any ingredients comprising offence of section 366 of IPC such as any kind of inducement or she was compelled or knowing it to be likely that she would be compelled with an intention to marry with any persons 6 Cr. Appeal (SJ)1396 of 2004 against her will or neither this witness whispered in her testimonies about the fact that either she was forced or seduced to illicit intercourse or knowing it likely that she would be forced or seduced to illicit intercourse, rather she had stated in her deposition that she was taken to Banaras, where she had been working in brick kiln and the other victim Sanju Kumari, used to live with co-accused Madan and she used to live separately. She had further stated that she remained in Banaras for two or three months and thereafter she returned back to her house. She did not utter a single word in her entire depositions about use of any kind of force or coercion or threat by this accused, rather she had stated that she had been in the brick kiln along with several other women and whatever she used to get the amount, she had given to the accused Madan to keep. She further stated categorically in para 13 that she had gone to her elder sister (didi) & brother-in-law. The way, she expressed her living in Banaras and thereafter her departure from Banaras to her elder sister, clearly established the fact that not a slightest evidence, to constitute the offence under section 366 of IPC, either any kind of inducement or compulsion used by the accused to compel her to marry with any person against her will or she was forced or seduced to illicit intercourse, was found in the testimonies of the victim girl P.W.6 in order to constitute the offence under section 366 of IPC.

18. Having evaluated the testimonies of the witnesses it is evident that the witnesses examined on behalf of the prosecution have consistently supported the case of the prosecution that the victim girls were taken away by accused appellant, but none of the witnesses including the victim herself (P.W.6) stated about the other ingredients to establish the offence under section 366 of 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 extent to ten years, and shall also be liable to fine; 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."

20. It is found that the Hon'ble Apex Court in the case of Kavita Chandrakant Lakhani Case (supra) has observed in para 15, 16 and 17 as under.

15. In the above backdrop, it is pertinent to mention here the ingredients of Section 366 IPC which are 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 extent to ten years, and shall also be liable to fine; 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."
21. In view of the categorical mandate of section 366 of IPC and in the light of aforesaid Rulings of the Hon'ble Supreme Court and Madhya Pradesh High Court, particularly in order to constitute the offence under sections 366 / 452 of the IPC, it is found in the present case that the most important ingredients about the intention and motive of the accused appellant under section 366 of IPC is completely absent in absence of an iota of evidence to that effect against the appellant. Admittedly in the FIR lodged by the father of one of the victims, namely P.W.6 there was no specific information to the informant as to how the girls were taken away from their place of stay and only on baseless suspicion that, since the accused 12 Cr. Appeal (SJ)1396 of 2004 along with the co-accused was also missing from their house, therefore they have been named. Even in the testimonies of the victim PW 6, there was no whisper about any kind of act attributed to the appellant to attract the ingredients of any compulsion, enticement, allurement or seducing for having illicit intercourse or to compel the victim to marry with any person against her will or knowing it to be likely to have intercourse or likely to be compelled to marry with any person against her will, rather from the deposition of PW - 6, it is found that she had been living in Banaras and working in brick kiln voluntarily and willingly and after two or three months, she came back and went to the house of her elder sister and brother-in-law. Further it is found that the accused appellant was arrested from Chakradharpur as categorically stated by I.O. PW 7 in Para- 5. The learned trial court has committed error in appreciation of the deposition of PW 6, where it is found that there is no whisper about the intention of the accused about any kind of inducement or she was compelled or knowing it to be likely that she would be compelled with an intention to marry with any persons against her will or neither this witness whispered in her testimonies about the fact that either she was forced or seduced to illicit intercourse or knowing it likely that she would be forced or seduced to illicit intercourse. Thus the learned trial court grossly erred by ignoring these facts and by observing that the evidence of victim girl remained un-assailed in her cross examination by the defence in a sweeping manner without any basis. It is well settled principle of criminal jurisprudence that the weakness of the accused cannot strengthen the case of the prosecution and the prosecution has to prove its case at its own strength with the cogent and reliable evidences. In the present case, there is no evidence against the accused appellant that the accused appellant along with his accomplice had intended to take away the victim P.W.6 with an 13 Cr. Appeal (SJ)1396 of 2004 intention that she may be forced or seduced to illicit intercourse or she may be compelled her to marry with any person against her will and in absence of any iota of such evidence from the mouth of the victim, the accused appellant cannot be convicted for the offence punishable under section 366 of the IPC. Further the doctor in this case has not been examined and therefore the age of the victim could not be determined in a convincing manner. The learned trial court has rightly appreciated the fact that it is true that investigation was not done in a manner expected from investigating agency and the victim should have been examined by a medical practitioner and in such cases, it has always been insisted that the statement of the victim must be recorded under section 164 of the Cr.P.C., which has not been done in the present case and the learned trial court even after depreciating the role of the I.O., came to a wrong finding in absence of any cogent evidence to that effect and therefore the impugned judgment of conviction and order of sentence for the offence punishable under section 366 of IPC cannot be sustained.