To secure a conviction for adultery or trespass, evidence of sexual intercourse and forcible entry must be present; mere assumptions do not suffice.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

Heard Mr. SSA Rahman, the learned counsel appearing for the petitioner. Also heard Mr. R.J. Baruah, the learned Addl. Public Prosecutor, Assam.

2. This is an application under Section 397 read with Section 401 of the CRIMINAL PROCEDURE CODE challenging the judgment and order dated 30.04.2012 passed by the learned learned Sessions Judge, Dhemaji in Criminal Appeal No.11(1)/2012 affirming st the judgment dated 18.01.2012 passed by the learned Judicial Magistrate 1 Class Dhemaji in G.R. Case No.772/2010. In fact, the petitioner was convicted under Section 457 and 497 of the INDIAN PENAL CODE .

3. Shri Paranjyoti Gogoi had lodged an FIR before police stating that the present petitioner was maintaining illicit relationship with his wife for a period of last one year. On 15.10.2020 at about 9.30 P.M., the petitioner had entered into the house of the informant and after switching off the light, he started indulging in illicit acts with the wife of the informant and the informant Paranjyoti Gogoi caught them red handed. On receipt of the FIR, Dhemaji P.S. Case No.305/2010 under Sections 448 and 497 of the IPC came into being.

4. At the time of trial, the prosecution side examined 9(nine) witnesses. The informant Paranjyoti Gogoi has stated in his evidence that on the day of occurrence at about 9.30 P.M., he arrived at his house and while standing in the verandah of the house, he felt that somebody was inside the house though the lights inside the house were switched off at that time. Paranjyoti Gogoi called his neighbours Modan Biswas, Arpita Biswas and Pranabjyoti Gogoi. He also called his brother-in-law over phone. When they arrived, all of them went to the back side of the house and locked the door from outside. Then, again they came to the front side of the house. Paranjyoti Gogoi called his wife inside the house and asked her to open the door. The wife opened the door. All of them entered into the house. The witness Modan Biswas switched on the light and this witness saw that the wearing apparels of his wife were not in proper state. They also found the petitioner inside the kitchen and he was trying to button up his trousers.

5. The second prosecution witness is Modan Biswas. His evidence is similar to that of Paranjyoti Gogoi. He supported the evidence of Paranjyoti Gogoi.

6. The third prosecution witness is Pranabjyoti Gogoi. He is the brother of Paranjyoti Gogoi. He supported the evidence of Paranjyoti Gogoi and Modan Biswas. He stated that long back he had heard that the present petitioner was maintaining illicit relationship with his sister-in-law.

7. The fourth prosecution witness is Arpita Biswas. She also supported the evidences of Paranjyoti Gogoi, Modan Biswas and Pranabjyoti Gogoi.

8. The fifth prosecution witness is Jinki Biswas. She is the wife of the witness Modan Biswas. She is not an eye witness to the occurrence.

9. The sixth prosecution witness is Ganesh Lahon. He is also an eye witness to the occurrence and supported the evidences of Paranjyoti Gogoi, Modan Biswas and Pranabjyoti Gogoi.

10. The seventh prosecution witness is Dr. Tikendrajit Taid. On 16.10.2010, on the basis of a police requisition, he examined the present petitioner. The doctor found no physical injury upon his person. No semen was found outside the penis or within the pubic area.

11. The eight prosecution is Gohin Gohain. He is also not an eye witness to the occurrence. He only heard that the petitioner was having sexual intercourse with the wife of Paranjyoti Gogoi.

12. The ninth prosecution witne