Crl.A. 24/2010 BEFORE HON’BLE MR JUSTICE B.K. SHARMA 1. This appeal is directed against the judgment of conviction dated 19.01.2010 passed by the learned Addl. Session Judge (FTC), Bongaigaon in Sessi on Case No. 32(BGN)/2009 convicting the accused/appellant under Section 376/417 IPC and sentencing him to undergo RI for 10 years and to pay a fine of Rs. 5000/ - for the offence under Section 376 IPC and in default of such fine, further RI for another three months. Further the accused is sentenced to undergo RI for one year and to pay fine of Rs. 5000/- for the offence under Section 417 IPC and in default, RI for another three months. Both the sentences are to run concurrentl y. 2. The criminal proceeding against the accused/appellant alongwith another started with lodging of the FIR on 04.03.2007 with Bongaigaon Police Station. Th e FIR was lodged by one Shri Bhursu Orao, father of PW 2. According to the FIR, the accused/appellant took his minor son Shri Lakhinath Orao (aged 15 years) alo ngwith two other girls namely Smt. Dipali Barman and Smt. Bimala Tanti aged 22 and 26 years respectively. They were taken to Delhi by Train and the son of the first informant, i.e. PW 2, being apprehensive and suspicious, got down from the train at New Alipurduwar station and came back home. In the FIR apprehension w as expressed that the accused/appellant might have kidnapped the two girls. 3. On the basis of the said FIR, the police registered Bongaigaon P.S. Case No. 97/2007 under Section 366 IPC. In due course, charge sheet was submitted pu rsuant to investigation that was carried out and the accused/appellant having be en charge sheeted under Section 366/371/34 IPC, trial commenced. During the tria l the prosecution examined six witnesses including the victim girl (PW4) and PW 2 mentioned above. The accused/appellant was also examined under Section 313 Cr .P.C. His defence was complete denial of the charges levelled against him. Be it stated here that the other accused person, namely Prakash Kami has been acquitt ed by the impugned judgement. Learned Trial Court having convicted the accused/a ppellant on the basis of the evidence on record, he has filed the instant appeal . 4. Ms. H. Goswami led by Ms. R.S. Choudhury, learned counsel for the appell ant submits that it being not a case of establishing the charges under Section 3 76 and 417 IPC beyond all reasonable doubt, the judgement under appeal is requir ed to be interfered with. Drawing my attention to the entire evidence on record, she submits that there being no ingredients towards constitution of the offence under Section 376/417, the accused/appellant is entitled to get acquittal. Acco rding to her, even if the testimony of the victim girl is taken into considerati on, she being a consenting party in respect of the allegation of the offence und er Section 376 IPC and she being a major, learned Trial Court committed manifest error of law in convicting the accused/appellant under Section 376 IPC. She has also submitted that the learned Trial Court, solely on the basis of the testim ony of PW 2 and PW 4, could not have held the accused/appellant guilty of the ch arges inasmuch as their testimony does not inspire any confidence towards convic tion of the accused/appellant. 5. Mr. Das, learned Addl. P.P., Assam on the other hand supporting the impu gned judgment of conviction, submits that when the ingredients to constitute the offence under Section 417 IPC are overwhelming, the offence under Section 376 I PC is also relatable to the said offence. In this connection, he has referred to the testimony of the victim girl to impress upon that it was under the circumst ances leading to the offence under Section 417 IPC, the offence under Section 37 6 IPC was committed. In this connection, he has referred to Section 90 IPC so as to submit that even if the victim girl had given her consent, same was under mi sconception as envisaged under Section 90 IPC. 6. I have given my anxious consideration to the submission made by the lear ned counsel for the parties and have perused the entire materials on record. Dur ing trial, the prosecution examined six witnesses including the Doctor who exami ned the victim and the I.O. who had conducted the investigation. As noted above and also submitted by the learned counsel for the parties, the conviction is pr imarily based on the evidence of PW 2 and PW 4. 7. However, I would like to refer to the evidence adduced by other witnesse s. PW 1 is the first informant who is also the father of PW 2. He in his deposit ion stated about his intimacy with the accused/appellant who was in visiting ter ms to his house. Narrating the incident, he in his deposition stated as to how t he accused/appellant took the two girls promising job on monthly salary of Rs. 1500/-. With such promise he had taken the two girls to a Tea Estate called Newl and Tea Estate in the State of West Bengal where they were kept for few days. La ter on when they came to know about false promise made out by the accused/appell ant, both the girls came back. In cross examination, the said witnesses testifie d that at the time of the incident both the girls including the victim girl aged were 22 and 23 years respectively. It was stated that they had accompanied the accused/appellant voluntarily when they were assured of job. 8. PW 2 is the minor son of the first informant who had disembarked from th e train at New Alipurduar station. He in his deposition stated as to how the ac cused/appellant had allured the girls and promised them job. But when he found t hat they were being taken to Delhi he got down from the train at New Alipurduar and came back home and informed the entire incident to his father who in turn lo dged the FIR. In cross examination, the said witness however, stated about the s tay at Durgapur in the State of West Bengal. Such stay was with the family membe rs of the other accused who has been acquitted. In cross examination, this witne ss stated that they were not misbehaved by the family members of the other accus ed person. He also stated that he had no personal knowledge about coming back o f the two victim girls, but had heard about their return. 9. PW 3 is the mother of the victim girl. She also in her deposition stated as to how the accused/appellant allured and promised the victim alongwith the o ther girl of job at Kokrajhar, but instead had been taken to Delhi. In her cross examination, she declared the age of the victim girl as 22 years. 10. Before we discuss the evidence of the victim girl, i.e. PW 4, it will be appropriate to discuss the evidence of other two witnesses, i.e. PW 5 and PW 6. PW 5 is the Doctor who had examined the victim girl. In cross examination, sh e confirmed the age of the victim as 22 years on the date of examination on 17.0 3.2007. According to her statement which referred to her report on medical exami nation of the victim, the girl was pregnant. PW 6 is the I.O. who had conducted the investigation. He in his deposition stated as to how some boys had apprehen ded the accused/appellant and taken to the police station with the plea that he had kidnapped the victim girl. As per his statement, the accused/appellant had s tated before him that he wanted to take the victim girl to Delhi because of love affairs with her. 11. PW 4 is the victim girl who in her deposition stated about her stay in t he residence of Prakash Kami. According to her version, she was forcefully raped by the accused/appellant against her will. However, significantly in her cross examination, she had stated that in the room, she had slept with other girls, namely Bimala and the daughter of Prakash Kami. They all slept on bed, while Jog eswar, Parmesh, Lakhi and the accused/appellant slept on the floor. Thus, there were seven persons in the room and it was in that room the alleged offence was c ommitted by the accused/appellant forcibly. It is on this count, Ms. H. Goswami, learned counsel for the accused/appellant has submitted that such story made ou t by the victim girl cannot be believed inasmuch as to commit the offence under Section 376 IPC. If force is applied, it is unlikely that none of the other inma tes of the room was unaware about the said incident. She has submitted that had the force been applied, the other six inmates would have come to know about the incident and thus, it was a case of she being a consenting party which cannot es tablish any offence under Section 376 IPC, more particularly when she was major. 12. I have very carefully considered the aforesaid submissions in reference to the evidence adduced by PW 4. While it is true that she along with few others was taken to Delhi with the promise to provide job, but there is absolutely no evidence of committing the offence under Section 376 IPC. None of the witnesses has accused the appellant for committing such an offence on the victim girl. It is only the victim girl who in her deposition has alleged that force was applie d to her on two nights. However, in cross examination, she categorically stated that in the particular room there were six other inmates and she did not inform the incident to anyone. Had it been a case under Section 376, at least some of t he inmates would have come to know about the incident and the victim girl would have raised hue and cry. But nothing of this sort had happened and the victim gi rl also did not inform the incident to anyone. 13. Mr. Das, learned Addl. P.P. has pointed out that in fact the victim girl had informed the incident to Bimala next day, who was also staying in the room. Apart from the fact that said Bimala was not examined during trial, as stated a bove, no hue and cry was raised by the victim girl and no other person in the ro om could come to know to the incident although the incident occurred in the same room, with seven inhabitants. 14. In her cross examination the victim girl has stated that on the night of the incident she was wearing Churidar. But the said cloth materials were not se ized by the police. As per her statement, the said cloths were also intact and not torn. Thus, it cannot be said to be a case of convition under Section 376 IP C as the charge has not been established beyond all reasonable doubt. 15. From the above, it cannot be said to be a case of commission of offence under Section 376 IPC. However, the evidences are overwhelming to establish the offence under Section 417 inasmuch as the accused/appellant had allured the vict im girl and others to with him for job at Kokrajhar, but they were taken to Del hi. The Trial court referring to the offence and appreciating the evidence, has come to the conclusion that both the charges against the accused/appellant have been established. While doing so, he has referred to certain decisions. Needles s to say that the ratio of a decision must be understood in the background of th e facts of that case. It has been said long time ago that a case is only an auth ority for what it actually decides, and not what logically follows from it. 16. For all the aforesaid reasons, the appeal partly succeeds. The impugned judgement of conviction dated 19.01.2010 passed by the learned Addl. Sessions Ju dge (FTC), Bongaigaon in Sessions Case No. 32(BGN)/2009 stands interfered with s o far as the same relates to conviction of the accused under Section 376 IPC. Ho wever, the offence under Section 417 IPC having been established, the sentence provided by the impugned judgment is sustained. The accused/appellant is in jail since the date of conviction after the impugned judgement. He has already serve d the sentence provided for under Section 417 IPC. He shall be released forthwit h, if not wanted in connection with any other offence. Registry shall send down the case records to the learned Trial court alongwith a copy of this judgement.