Baharul Islam, J.
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 accused pleaded not guilty to the charge. The prosecution examined seven witnesses in this case. After trial, the learned Magistrate convicted and sentenced the accused as aforesaid. The petitioner preferred an appeal before the learned Sessions Judge, Lakhimpur, who dismissed the appeal and upheld the conviction and sentence against the petitioner, as mentioned earlier.
4. 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:
I have no reason to disbelieve the evidence of these three young boys and the girl herself who have no reason to implicate a school teacher with an occurrence of this nature. From their evidence, I am satisfied that the appellant did have sexual intercourse with the girl on the date of occurrence inside the school.
5. When these witnesses have been believed by the both the courts below, in a revision, I would not have ordinarily proceeded to upset these findings. But there are certain inherent infirmities in the prosecution case. One glaring fact is that when the girl refused to go inside the school on the invitation of the accused, according to her, the petitioner caught hold of her hand and then she began to follow him. This part of the evidence is not believable, particularly because of the subsequent alleged incident, namely, that she was taken inside the room and the petitioner committed sexual intercourse on her; has no corroborative evidence in support of it. Further there is no evidence to show that she raised any hue and cry when rape was about to be committed on her by the accused. Secondly, it is also not believable that the accused who was a teacher, would forcibly take the girl inside the room and commit rape in broad daylight when there were other persons, namely P.Ws. 2 and 3 tending cattle near the school, On the top of it, the medical evidence completely belies the prosecution case of rape. P.W. 6 says that on her refusal to accompany accused into the room of the school, accused caught hold of her and took her into the room, while P.Ws. 2 and 3 say that they saw P.W. 6 and the accused entering the room.
6. Section 354, Indian Penal Code, is in the following terms:
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
One of the ingredients of this section is that the accused assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. In this case, the prosecution has not led any evidence to show that the accused intended to outrage the modesty of P.W. 6. Even if the prosecution story as deposed to by P.Ws. 2, 3 and 4 that the accused was 'on the body' of P.W. 6 inside the room, it would not be outraging of modesty if the girl was a consenting and voluntary party to the affair. There is no evidence or finding to show that she protested. But there is no finding of any of the courts below to show that the girl was forcibly taken by the accused inside the room or that there was rape or an attempt to commit rape. The evidence of the girl that the accused caught hold of her hand and took her inside the room has not been supported by P.Ws. 2, 3 and 4 as stated earlier. Their evidence is that they were nearabout the school and saw the accused and P.W. 6 entering the room. They have not stated that the accused caught hold of the hand of the girl and took her inside the room. Therefore, the prosecution has failed to make out a case against the accused under Section 354 of the Indian Penal Code. The conviction and sentence passed against the petitioner are hereby set aside.
7. The revision petition is accordingly allowed. The accused is acquitted. He is discharged from his bail bond.