1. This criminal appeal filed under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence, dated 03.09.2005, passed by the learned Sessions Judge, Morigaon, in Session Case No. 59/2004, whereby learned Sessions Judge found the accused appellant guilty of committing offence punishable under section 354 of IPC and sentenced him to suffer R.I. for 1 (one) year and to pay a fine of Rs. 2,000/-, in default of payment of fine to, suffer further R.I. for 6 (six) months. Heard learned counsel, Mr. A.M. Borbhuiyan, who has been appointed as Amicus Curiae by this Court and learned Addl. P.P., Mr. B.S. Sinha, for the State respondent.

2. The fact of the case may be summarised thus:

3.1 On 14.05.2003, at about 4:00 p.m., the victim prosecutrix "Sabita" (actual name kept concealed), a minor girl, aged about 13 years, alongwith her younger cousin sister, Subhadra Mandal, aged about 10 years, went to the paddy field near their house to collect grass. While they were about to leave the field, the accused-appellant, Md. Sultan Ali, suddenly, caught hold of 'Sabita' and started dragging her towards the paddy field. He caught the mouth of 'Sabita' and therefore, she was not in a position to raise alarm. On seeing the incident, PW 3, Shubadra Mandal raised alarm and rushed to their house and informed the incident to her mother, PW 6, Smti. Saraswati Mandal and PW 6 immediately informed the incident to her husband, PW 4 Maniklal Mandal, and, they alongwith neighbours, went to the field. The accused, thereafter, left the place and entered in the house of Hamed Ali and Kuddush Ali, and when Maniklal Mandal, Saraswati Mandal and others came there to enquire about 'Sabita', Sultan Ali, Hamed Ali and Kuddush Ali came out to assault them and out of fear Maniklal Mandal, his wife Saraswati Mandal and others left the place.

3.2 On 16.05.2003, father of 'Sabita', lodged an F.I.R. with the O/C, Jagiroad P.S. alleging the incident and, accordingly, Jagiroad P.S. Case No. 61/03 under Sections 376, 511, 506 read with Section 34 of IPC was registered and investigation was taken up.

3.3 In course of investigation, I.O. arranged medical examination of 'Sabita' in the Civil Hospital, Morigaon and, accordingly, PW 7, Dr. Bhogeswar Thakuria, examined the victim girl in the hospital and medical report(Exbt. 2) was collected by him.

3.4 The prosecutrix, her father PW 2, Jagabandhu Biswas, PW 4, Maniklal Mandal, and PW 5, Barun Debnath, were produced before the learned Judicial Magistrate for recording their statements under Section164 of Cr.P.C. and, accordingly, their statements were recorded. In the statements made by the prosecutrix and her father it was disclosed that the accused, Sultan Ali committed rape on the prosecutrix in the field and when Maniklal Mandal and his wife Saraswati Mandal and others reached there the accused fled away.

3.5 I.O., in course of examination, got the copies of statements recorded under Section 164 of Cr.P.C. and also recorded statements of all materials witnesses, and thereafter submitted charge sheet against accused, Sultan Ali for commission of offence punishable under Sections 376, 511, 506 read with Section 34of IPC and did not forward the other two FIR named accused, Hamed Ali and Kuddush Ali to face the trial and, accordingly, they were discharged.

3.6 On commitment the case to the Court of Sessions, learned Sessions Judge, on 17.08.2004, framed charge against the accused Sultan Ali for commission of offence punishable under Sections 376 of IPC to which the accused pleaded not guilty and claimed to be tried.

3.7 Prosecution examined as many as 8 (eight) witnesses, namely, PW 1, the victim prosecutrix, PW 2, father of the prosecutrix, who was the maker of the FIR, PW 3, Shubadhra Mandal, younger sister of the prosecutrix, a minor girl, who was with the prosecutrix at the time of alleged occurrence, PW 4, Maniklal Mandal, father of PW 3, PW 5, Barun Debnath, a neighbour, PW 6, Saraswati