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. 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 un