JUDGMENT P.K. Musahary, J. 1. Heard Mr. J.M. Choudhury, learned senior Counsel assisted by Mr. A.M. Bora, learned Counsel for the Appellant in Crl. Appeal No. 66 of 2007 and Mr. H.R.A. Choudhury, learned senior Counsel assisted by Ms. S.K. Nargis, learned Counsel for the Appellant in Crl. Appeal No. 140 of 2007. 2. Both the Appellants in the aforesaid appeals were convicted under Section 376(2)(g) IPC and sentenced to suffer 8 (eight) years R.I. with a fine of Rs. 3.000/- and in default of payment of fine, further R.I. for another 6 (six) months vide judgment and order dated 26.02.2007 passed by the learned Sessions Judge. Kamrup, Guwahati, Assam in Sessions Case No. 70(K) of 2001. Since both the Appellants were convicted by the aforesaid judgment and order, these criminal appeals are taken up together for hearing and proposed to be disposed of by this common judgment and order. 3. Acrime being Azara P.S. Case No. 115 of 1998 under Sections 376/34 IPC was registered on the basis of FIR lodged by one Bhupendra Nath Phukan with the O.C., Azara, wherein it was alleged that on 29.10.1998, the accused Gafur Ali and some other persons brought a young girl in the official quarter of Akbar Ali situated in the campus of Assam Agricultural University. Kahikuchi and the persons were apprehended by public while committing rape on the said girl. The police investigated into the matter and on completion of the investigation submitted charge sheet against the accused-persons. The matter was committed to the learned Sessions Judge, Kamrup for trial. 4. On the basis of materials made available by the police, the learned Sessions Judge framed the charge under Section 376(2)(g) IPC. The accused-persons pleaded not guilty and claimed to stand the trial. The prosecution, to establish the charge, examined 9 (nine) witnesses including the medical officer and the investigating officer. The victim girl, as it could be found from the record, expired on 07.10.2002 during the period of trial and as such, she could not be examined. On the basis of record and materials made available and after hearing the learned Counsel for the parties, the learned trial Court convicted and sentenced the accused-persons as stated earlier. The present Appellants have preferred the appeals against the aforesaid impugned judgment and order dated 26.02.2007. 5. Appearing for the Appellant Sri Utpal Das, Mr. On the basis of record and materials made available and after hearing the learned Counsel for the parties, the learned trial Court convicted and sentenced the accused-persons as stated earlier. The present Appellants have preferred the appeals against the aforesaid impugned judgment and order dated 26.02.2007. 5. Appearing for the Appellant Sri Utpal Das, Mr. J.M. Choudhury, learned senior Counsel submits that the learned trial Court convicted and sentenced the aforesaid accused-person Utpal Das without properly appreciating the evidence on records. According to Mr. Choudhury, learned senior Counsel, there is no evidence on records against the accused Utpal Das inasmuch as no prosecution witness has disposed that he was identified by anybody and found at the place of occurrence. There is absolutely no evidence against him and as such, the conviction of this particular Appellant is not sustainable in law and accordingly, the aforesaid impugned conviction and sentence, so tar it relates to the Appellant-Utpal Das is concerned, is liable to be reversed and he should be acquitted honourably. 6. Appearing for the Appellant Md. Gafur Ali. Appellant in Criminal Appeal No. 140 of 2007. Mr. H.R.A. Choudhury, learned senior Counsel submits that although the victim girl was alleged to have been found by some neighbours in the resident of the official quarter of his father, there is no evidence to the effect that he was a party to the alleged gang rape. The prosecution put much reliance on the evidence of PW 1, Sri Jagodish Kakoti, who led the neighbours to the official quarter of Appellant's father. The evidence of this witness is only to the extent that the victim girl was found in the aforesaid quarter and there is no whisper in the evidence that the said Appellant indulged himself in committing rape upon the victim girl. On the basis of such evidence, no Court can come to a conclusion that the Appellant was guilty of committing the offence under Section 376(2)(g) IPC and therefore, the Appellant is entitled to get the order of acquittal inasmuch as no charge under Section 376 IPC could be brought home against him. 7. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam. Mr. 7. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam. Mr. Munir fairly submits that there is no evidence as such against the Appellant Utpal Das but as against Gafur Ali, he was found in the official quarter of his father while the victim girl was found hiding under the bed which presupposes involvement of Gafur Ali and as such he can not absolve himself of the alleged charge. 8. I have perused the FIR, Exhibit-1, which was lodged by Bhupendra Nath Phukan, the Principal of Grama Sewak Training Centre at Kahikuchi in which it is stated that Md. Gafur Ali S/O Akbar Ali along with some other unknown accused-persons, with one unknown young girl have been indulging in some unsocial activities in the official quarter of his father and they were caught by the local people and thereby they are vitiating the atmosphere of the Institution. This informant was examined as PW 4. He filed the aforesaid FIR on the basis of the information furnished by PW 1, PW 2 and PW 3. He further deposed that he neither knows the accused-persons nor the victim girl. 9. I have also perused the medical report, Exhibit-2 prepared by PW 5 Dr. Manoj Kr. Singha along with his deposition. He recorded his opinion as under: 1. Her age is above 16 years and below 18 years. 2. Evidence of recent sexual intercourse is not proved. She is used to sex. 3. No sign of pregnancy. 4. No injury was found on the private part. 10. From the records, it is found that the victim girl was forwarded before the Magistrate for recording her statement under Section 164 Code of Criminal Procedure. However, the aforesaid statement could not be exhibited and proved. The prosecution did not examine the Magistrate concerned who recorded the statement of the victim girl. Moreover, the victim girl also expired as stated earlier and she could not be examined to testify the veracity of the statement made by her before the Magistrate under Section 164 Code of Criminal Procedure. This being the position, we cannot look into and rely on the statement recorded under Section 164 Code of Criminal Procedure as a piece of legal evidence. 11. From the evidence of PW 1, it is an admitted position that the victim girl was found lying under the bed in the official quarter of Akbar Ali. This being the position, we cannot look into and rely on the statement recorded under Section 164 Code of Criminal Procedure as a piece of legal evidence. 11. From the evidence of PW 1, it is an admitted position that the victim girl was found lying under the bed in the official quarter of Akbar Ali. At the same time the Appellant Md. Gafur Ali. I "here is, however, no evidence that the Appellant Gafur Ali was caught while committing the alleged rape. The aforesaid witness did not say anything about the victim girl that she cried for help while she was allegedly being raped by some boys in the aforesaid quarter or while she was raped by the Appellant Gafur Ali. There is no indication in the evidence of PW 1 that she was forcefully kept by the aforesaid accused Appellant in his father's quarter. There is no indication that the Appellant Utpal Das was present in the official quarter of Akbar Ali or he was seen or identified by anybody. The involvement of Utpal Das or his presence is not at all established by any evidence so far adduced by the prosecution. 12. The medical report and the opinion of the medical officer, PW 5 is very significant in so far as no injury was found on the person of the victim girl. If the story of the prosecution is to be believed that she was gang raped by several persons against her willingness, she would have resisted and she would have certainly received some injuries on her person but such injury, as per medical report is found absent in her person. Thus, the prosecution story stands unbelievable. Moreover, the opinion of the doctor that 'she is used to sex' speaks volumes as to indicate having her consent to such sexual acts. The absence of injury implies absence of resistance on her part. It may be noted that the victim girl was found at 11.30 P.M. (midnight) in the official quarter of Akbar Ali. If she really forced by somebody and taken to the official quarter of Akbar Ali, she would have definitely raised hue and cry. The occurrence took place in a Govt. quarter surrounded by other quarters and inhabited by people. It may be noted that the victim girl was found at 11.30 P.M. (midnight) in the official quarter of Akbar Ali. If she really forced by somebody and taken to the official quarter of Akbar Ali, she would have definitely raised hue and cry. The occurrence took place in a Govt. quarter surrounded by other quarters and inhabited by people. Had she raised hue and cry it would have been heard by some people of the neighbouring quarters and they would have come to rescue her. But here in the case, from the evidence of PW 1, it is clearly found that she remained quiet till 11.30 P.M. until some people from the nearby quarters came and found her in the said quarter. This Court has nothing to say about the antecedent of the victim girl, more so, when she has already expired but it must be said that she was not forcefully brought to the official quarter of Akbar Ali, rather she accompanied the boys, who brought her to the aforesaid quarter. As the victim girl could not be examined, it could not be testified whether she was actually gang raped by some boys including the present Appellants. But so far the Appellant Sri Utpal Das is concerned, this Court could not find any evidence against him about his involvement in the case and as such he is entitled to get the order of acquittal. The bail bond in respect of the said Appellant shall stand discharged. 13. So far the Appellant Gafur Ali is concerned, as already discussed earlier, there is no evidence to the effect that he was involved in committing rape or having participated in the alleged offence by some boys in his father's quarter but he has not come forward with any explanation as to why and how he allowed the victim girl in his father's quarter. This Appellant, although stated to have been a married person, failed to behave himself in a manner expected from a person, who would have rescued the girl from the clatch of the criminals/offenders. It is an indisputable position that something had happened in the quarter of his father for which the nighbours had to come and the Appellant Gafur Ali failed to inform the neighbours before they came to know about the alleged entry of the offenders in his father's quarter. It is an indisputable position that something had happened in the quarter of his father for which the nighbours had to come and the Appellant Gafur Ali failed to inform the neighbours before they came to know about the alleged entry of the offenders in his father's quarter. He remained as a passive spectator facilitating the offenders to commit the crime. 14. In view of the above, this Court finds it very difficult to fully absolve the Appellant Gafur Ali of the offence although his participation in the alleged gang rape could not be proved by the persecution. Considering the aforesaid facts and circumstances, I consider that the ends of justice would meet if his convicted under Section 340 IPC and sentence him under Section 342 IPC to the period already undergone by him. The impugned conviction and sentence as recorded by the learned trial Court under Section 376(2)(g) IPC is, thus, liable to be set aside and it is set aside accordingly. The bail bond in respect of the Appellant Gafur Ali shall stand discharged. 15. The appeal stands partly allowed, so far it relates to the Appellant-Gafur Ali concerned, with the modification in the conviction and sentence as indicated above. 16. Send down the LCR to the Court below forthwith.