JUDGMENT :

1. Heard Mr. P. J. Saikia, learned Senior Counsel assisted by Mr. P. Bordoloi, learned counsel for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State of Assam.

2. The present appeal is directed against the Judgment and order dated 16.09.2011 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 78 (T)/2010 convicting the appellant/ accused under Section 354 of I.P.C. and sentencing him to undergo imprisonment for 2 months and 7 days and to pay a fine of Rs. 5,000/-and in default of payment of fine to undergo Simple Imprisonment for a period of another 15 days and to pay Rs. 15,000/- as compensation.

3. The prosecution case in brief is that one Smt. Namita Sengupta lodged an Ejahar before the Officer-in-Charge of Tinsukia Police Station on 21.07.2009 stating inter-alia that appellant was residing with his family as tenant under the same landlord of the informant and that the minor daughter of the informant used to call the appellant as uncle and that her daughter used to visit the house of the appellant on and off and that on 18.07.2009, the appellant called the victim to his house and at that time the wife of the accused was absent and his son was sent for bringing betel nut from a nearby shop and taking advantage of the situation, the appellant undressed the victim and committed rape on her and that the victim disclosed the aforesaid incident to the informant on 19.07.2009.

4. On receipt of the said Ejahar, the officer in charge, Tinsukia Police Station registered a case being Tinsukia Police Station Case 479/2009 under Section 376 (f) of IPC for investigation. Accordingly, the investigation was conducted and thereafter, charge sheet was filed under section 376 (f) of IPC against the appellant/accused.

5. Thereafter, committal court committed the matter to the Court of learned Sessions Judge, Tinsukia. Charges were framed under Section 376 (f) of IPC, on 07.08.2010 against the appellant and was read over and explained to the accused/appellant to which he pleaded not to be guilty and claimed to be tried. Accordingly, the trial commenced.

6. To bring home the charges, the prosecution examined as many as 11 witnesses including the victim and no defence evidence has been adduced on behalf of the appellant. The statement of the accused was recorded under section 313 Cr.P.C.

7. Thereafter, the learned trial Court convicted the appellant/ accused under Section 354 of I.P.C. and sentenced him to undergo imprisonment for 2 months and 7 days and to pay a fine of Rs. 5,000/-and in default of payment of fine to undergo Simple imprisonment for a period of another 15 days and to pay Rs. 15,000/-as compensation. Assailing such judgment and conviction, the present criminal appeal is filed.

8. Before determining the legality and validity of such conviction, let this Court now examine the deposition of the witnesses so as to arrive at a just and fair decision.

I. PW-1 Smti. Namita Sengupta, was the mother of the victim and informant of the case. In her examination-in-chief, she deposed that victim was of 5 years of age at the time of occurrence. On 09.07.2009, in the morning, the victim reported to her that the accused on the previous night put off her pants and committed bad acts by applying oil. The victim also informed her about burning sensation in her vagina. But when examined she deposed that she did not notice any abnormality in her vagina. She further deposed that victim on 18.07.2009 informed her about the bad acts committed by the accused with her but she did not pay any attention as her husband was not at him. On 19.07.2009, after return of her husband, the matter was informed to him and he called his neighbours – Sujit Kumar Bhowal, Bimal Dahutia (PW-5), Dipa Dahutia (PW-3), Anjali Hazarika (PW-7) etc. On hearing about the occurrence, many people assembled in her house and then they went to the house of the accused but his house was found under lock and key. The people assembled