Crl.A. 108/2005 BEFORE HON’BLE MR JUSTICE B.D. AGARWAL This appeal is directed against the judgment and order dated 3.5.2005, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 61(JJ) of 2004 (G.R. ca se No. 561 of 2002) whereby the appellant has been convicted under Sections 366 and 417 of the IPC. After convicting so, the appellant was sentenced to undergo R.I for 3 (three) years and fine of Rs. 1,000/- (one thousand) for offence unde r Section 366 of the IPC and R.I for 6 (six) months for offence under Section 41 7 of the IPC. Being aggrieved, the convict preferred this appeal. [2] Heard Mr. BK Bhattacharjee, learned senior counsel for the appel lant and Mr. B.S. Sinha, learned Addl. P.P. for the state respondent. I have als o perused the impugned judgment & order and the evidence on record. [3] Admittedly, the victim girl died after filing of the FIR. Hence, the trial court had no occasion to get oral testimony of the victim girl. The o ther admitted fact is that after the occurrence, the victim girl also stayed wit h another boy by way of eloping. Initially, the appellant was challaned under Se ction 376 of the IPC and he was also tried for the said offence. However, after that the appellant has been convicted under section 366 of the IPC. [4] In my considered opinion, the offence of kidnapping cannot be co nsidered as minor offence of the rape, so that the accused could have been convi cted under Section 366 of the IPC added with section 222 of the Cr.P.C. Besides this, from the FIR and the deposition of the victim’s sister, it is apparent tha t the victim had love affairs with the accused and she had voluntarily accompan ied with the accused and stayed in a Hotel for night. [5] Under these circumstances, the conviction of the appellant under Section 366 is untenable in law and the same is hereby set aside. [6] With regard to the conviction for offence under Section 417, the re is no evidence on record in this regard. I have already noted earlier that th e victim had died before giving her deposition and hence, it is not clear as to what nature of promise was given by the accused. In my considered opinion, any p romise of marriage should precede the actual offence of cheating. [7] In the present case, neither the sister nor the father of the vi ctim (PWs 1 and 3) have stated anything that the accused had given any kind of p romise to marry her sister/ his daughter. The other witnesses are remained total ly silent. [8] Accordingly, the conviction under Section 417 of the IPC is also hereby set aside and the impugned judgment is hereby set aside. Accordingly, the bail bond stands discharged.