SADANANDA BORGOHAIN Vs. THE STATE OF ASSAM AND ANR.

JUDGEMENT

(1.) THIS application under Section 439 of the Code of Criminal Procedure is directed against the order, of conviction and sentence passed against the accused -petitioner under Section 354, Indian Penal Code, by the learned Additional District Magistrate (Judicial), Dibrugarh. The petitioner was sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs. 100/ -, in default rigorous imprisonment for one month more. On appeal, the order of conviction and sentence was upheld by the learned Sessions Judge, Dibrugarh.

(2.) THE prosecution case was that the petitioner Sadananda Borgohain was a school teacher. On the date of occurrence, namely on 2 -10 -67, he took Mst. Anjalibala Phukan, a school girl, to the school at Bezpathargaon, while she was going by the school to a friend's house, and outraged her modesty by having sexual intercourse with her in a room of that school. In the evening the matter was reported by the girl to her father who informed the school authority. But as the school authority did not take any action in this regard, the girl lodged an ejahar at the Dibrugarh Police Station on 7 -10 -67, whereupon, a case was registered under Section 376, Indian Penal Code. After completion of the investigation, the police submitted charge -sheet against the petitioner under Section 354, Indian Penal Code.

(3.) THE point urged before me by learned Counsel for the petitioner was that in the facts and circumstances of this case, the prosecution case was highly improbable. He submitted that it was not probable that during the day time the teacher would forcibly take the girl inside the school and commit rape on her. He further submitted that the prosecution case of rape was completely belied by the evidence of P.W. 5 Dr. P. B. Das, Assistant Surgeon, Moran State Dispensary, who examined the girl on 7 -10 -67 at 3 -50 P.M. but did not find any sign of injury in the private parts of the girl. P.W. 5 also found that the girl appeared to be between 13 and 14 years of age. P.W. 6 is the girl Anjalibala Phukan, the victim of the alleged rape. Her evidence was that on 2 -10 -67, which was a school holiday on account of Gandhi Jayanti, she was going to the house of a friend at noon. While she was going by the side of the school, she saw the accused, who was a school teacher, near the school. The teacher invited her to go inside the school. She refused. Then the petitioner caught hold of her hand and pulled her towards the school. Thereafter they entered into a room. The petitioner closed the room from inside and thereafter he committed rape on her. After the act was over the door was opened and the accused left the place when P.W. 6 also left for her place. P.W. 2 is Nanda Barua, who was a student of Class VIII of that school. According to him, on the date of occurrence he along with P.W. 3 Tarun Barua were looking after their cattle in the nearby field. At that time P.W. 4 Ghanakanta Sangamai and one Pradip Chetia came after attending their tuition classes. While they were talking they saw accused Sadananda and P.W. 6 Anjalibala Phukon entering the school. As the school was closed, their entry into the school raised suspicion in their minds. They therefore went and peeped into the room through some peephole, variantly, through a window and saw the petitioner on the top of the girl having sexual intercourse with her on the floor of the room. As the petitioner was a school teacher these boys, according to them, did not raise any hue and cry. P.W. 3 Tarun Bania, is also a school student of Class VIII. His evidence is also on the line of P.W. 2. P. W. 4 Ghanakanta Sangmai also gives the same story. After considering the evidence of the prosecution witnesses, the learned Sessions Judge comes to the following conclusion: