Crl.A. 338/2003 BEFORE HON’BLE MR JUSTICE P.G.AGARWAL Heard Mr.S.C.Biswas, learned counsel for the appellant and Mrs. A.Begum, learned P.P., Assam. This appeal is directed against the judgment and order dated 18.09.2003 passed by the learned Sessions Judge, Kokrajhar convicting the accused appellant s Ainuddin, Omar Uddin, Nanur Uddin and Surat Zamal guilty under Section 366(A) and sentencing them to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/- each, in default in payment of fine, to undergo further impris onment for one month each. The accused appellant Mafizuddin was convicted under Section 366(A)/376 IPC and sentenced to undergo rigorous imprisonment for ten ye ars and to pay fine of Rs.2000/-, in default in payment of fine, to undergo impr isonment for three months under Section 376 IPC and further to suffer rigorous i mprisonment for 7 years under Section 366(A) IPC. Both the sentence is to run c oncurrently. In the present case, we find that the prosecution had examined as many a s seven witnesses, out of them two are official witnesses i.e. the I.O. and the Medical Officer. We also find that in the present case, the alleged victim Fazar Zan could not be examined as she died on illness before the trial could commenc e. Out of the five un-official witnesses, PW-6 had no knowledged about the incid ent. PW-1 is the father of the victim, whereas PW-2 is the brother-in-law of PW- 4 and brother of the victim. They were not present in the house when the inciden t of kidnapping took place. They claim to have been reported about the incident by Smti Sheikh Jan Bibi (PW-3), the mother of the deceased (victim). It is seen that during trial, the mother of the victim (PW-3) turned hostile and she was de clared hostile. The PW-3 has not named any of the accused person. We thus find t hat there is no evidence on record implicating the accused persons in the matter of kidnapping or implicating Mafizuddin in committing rape on the girl. It seem s that the learned trial Court acted on surmise and conjectures to convict the a ccused appellants, although this is a case of no evidence. A criminal trial cann ot proceed on such surmise. Admitted, in the present case, none of the prosecution witnesses implica ted the accused persons. The evidence of PW-1, PW-2 and PW-4 becomes here-say ev idence in the light of the testimony of PW-3 which has got no evidentiary value. In the result, the appeal is allowed. The impugned order of conviction a nd sentence is set asid. The accused appellants are acquitted. They be released forthwith, if not wanted in connection with any other case. Send down the records.