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Gauhati High Court
Page No.# 1/2 vs The State Of Assam And Anr on 7 August, 2025
Page No.# 1/21
GAHC010254032023
2025:GAU-AS:10335
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./70/2024
ASHRAFUL SHEIKH
S/O RAHMAT ALI, R/O VILLAGE- CHARUABAKRA,
P.S- CHAPAR, DIST- DHUBRI, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PP, ASSAM.
2:SHAHERA KHATUN
D/O SARBES ALI
R/O VILLAGE- CHARUABAKRA (JUNGLE BLOCK)
P.S.- CHAPAR
DIST- DHUBRI
ASSAM
Advocate for the Petitioner : MR. R BORA,
Advocate for the Respondent : PP, ASSAM, MR. A PHUKAN, AMICUS CURIAE (R-2)
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:::BEFORE:::
HON’BLE MRS. JUSTICE MITALI THAKURIA
Date of hearing : 22.07.2025
Date of Judgment & Order : 07.08.2025JUDGMENT & ORDER (CAV)
Heard Mr. R. Bora, learned counsel for the appellant. Also heard Mr. P.
Borthakur, learned Additional Public Prosecutor for the State respondent No. 1
and Mr. A. Phukan, learned Amicus Curiae for the respondent No. 2.
2. This is an appeal under Section 374(2) read with Section 482 of the Code
of Criminal Procedure, 1973 against the impugned judgment and order dated
29.08.2023, passed by the learned Special Judge, Bilasipara, Dhubri in Special
(POCSO) Case No. 38/2019, whereby the appellant has been convicted under
Section 4 of the POCSO Act, 2012 and sentenced to undergo Rigorous
Imprisonment for 8 (eight) years and also to pay a fine of Rs. 10,000/- (Rupees
ten thousand), in default, to suffer Simple Imprisonment for 2 (two) months and
also convicted under Section 376 of the IPC.
3. The prosecution case, in brief, is that on 13.02.2019, one Sorbesh Ali
lodged an F.I.R. before the Chapar Police Station alleging that on 07.02.2019, at
about 02.00 a.m. (late night), while his minor daughter, i.e. the alleged victim,
was washing her hand and feet at the tube well after answering nature’s call,
the appellant herein, Ahsraful Islam, all of a sudden, hold her from backside,
dragged her to the backside of their house by gagging her mouth and
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committed rape upon her. Thereafter, the victim, on being free herself from the
grip of the appellant, made hue and cry and hearing such hue and cry, some
neighboring people rushed to the place of occurrence and they also identified
the appellant while he was running away. The other accused persons named in
the F.I.R. gave assurance to the complainant that they will settle the matter at
the village meeting, but on 12.02.2019, the appellant did not agree with the
village bichar and gave threatening to the family member of the complainant
following which the F.I.R. was lodged against the appellant. Upon receipt of the
said F.I.R., the Officer-In-Charge, Chapar Police Station, registered a case, being
Chapar P.S. Case No. 47/2019, under Section 4 of POCSO Act and Section 376
of the IPC, and started investigation. During investigation, the I.O. visited the
place of occurrence, recorded the statement of the witnesses, seized the birth
certificate of the victim, sent the victim to Dhubri Civil Hospital for medical
examination and produced the victim before the jurisdictional magistrate and
recorded her statement under Section 164 Cr.P.C.
4. Thereafter, on completion of investigation, the I.O. laid Charge-Sheet
against the present accused/appellant before the learned Special Judge,
Bilasipara, Dhubri, under Section 376 of IPC read with Section 4 of POCSO Act,
2012. Accordingly, the learned Special Judge, Bilasipara, Dhubri, after
considering the materials available on record and also finding prima facie case,
framed charge against the present accused/appellant under the aforesaid
Sections. The charges were read over and explained to the accused/appellant,
to which he pleaded not guilty and claimed to be tried.
5. During the trial of the case, the prosecution examined as many as 10 (ten)
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numbers of witnesses including the victim, who was examined as CW-1, the
Medical Officer and the Investigating Officer and few exhibits. The
accused/appellant was also examined under Section 313 Cr.P.C., wherein he took
the plea of total denial and declined to adduce any evidence. Thereafter, the
learned Special Judge, Bilasipara, Dhubri, hearing both the parties and on
perusal of the materials available on records, vide judgment & order dated
29.08.2023, in Special (POCSO) Case No. 38/2019 (GR No. 201/2019),
convicted the appellant under Section 4 of the POCSO Act, 2012 and sentenced
him, as aforesaid.
6. On being aggrieved and dissatisfied with the aforesaid impugned judgment
and order dated 29.08.2023, passed by the learned Special Judge, Bilasipara,
Dhubri in Special (POCSO) Case No. 38/2019, the present appeal has been
preferred by the accused/appellant.
7. It is submitted by Mr. R. Bora, learned counsel for the appellant, that the
learned Trial Court below had failed to appreciate the evidence in its true
perspective and thus came to an erroneous finding of guilt of the
accused/appellant. The prosecution also failed to prove the guilt of the appellant
beyond reasonable doubt and the evidence brought on record does not support
the conviction. He further submitted that the F.I.R. was lodged after an
unexplained delay of six days from the date of the alleged incident, which raises
serious doubt about the veracity of the prosecution’s case. The deposition of the
prosecution witnesses suffer from serious contradictions, particularly with
respect to the date, time, and place of occurrence, and none of the witnesses
claimed to have seen the appellant committing the alleged act. He further
submitted that as per the P.W.-1, the alleged victim wanted to marry the
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appellant and the F.I.R. was lodged only after the appellant refused to do so.
PW-2, who is the complainant and father of the alleged victim, deposed that the
appellant took the victim to a jungle far from home and committed sexual
intercourse with her and upon the victim raising hue and cry, he and his wife
reached the spot, after which the appellant fled. He stated that a village bichar
was held, and the appellant initially agreed to marry the victim but later refused
and for which, the F.I.R. had been lodged. However, in cross-examination, PW-2
admitted that it was a dark night on the date of occurrence. The learned
counsel also pointed out that in his statement recorded under Section 161
Cr.P.C., PW-2 had stated that the incident was narrated to him by his wife (PW-
3), contradicting his evidence-in-chief wherein he claimed to have reached the
place of occurrence upon hearing the victim’s cry. Thus he submitted that none
of the prosecution witnesses could state the exact date of the alleged
occurrence. Although the victim deposed that the incident took place two years
ago, other witnesses, including the P.W.-5, stated that the incident occurred
either one year ago or 8-9 months back. The statement of the prosecutrix has
not been corroborated by any other witness, and in absence of such
corroboration, her sole testimony cannot be relied upon to convict the appellant.
8. Mr. Bora further submitted that the alleged victim deposed that initially she
did not raise any hue and cry while she was being dragged by the appellant and
only after the alleged sexual intercourse, which she claims to have resisted, she
raised alarm. Her parents then reached the jungle and subsequently approached
the appellant’s family, who refused to accept their complaint or the village
bichar and the F.I.R. was lodged only after the appellant refused to marry her.
However, none of the witnesses saw the appellant committing rape and the
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statements of the prosecution witnesses are contradictory and do not inspire
confidence, and therefore, cannot form the basis for convicting the appellant.
More so, he submitted that the medical evidence also does not support the
allegation of rape, as the medical officer found no signs of recent sexual assault
or injury on the victim. In such circumstances, the presumption under Section
29 of the POCSO Act is not attracted. The learned Trial Court also failed to take
note of the fact that the victim and her family were aggrieved due to the
appellant’s refusal to marry the victim, which suggests a motive for false
implication. Moreover, the investigation was deficient as the I.O. did not collect
the clothes of the victim or send them for forensic examination. The conviction
is based solely on incomplete and unreliable circumstantial evidence, without
establishing a complete chain of events pointing unerringly to the guilt of the
appellant, which is not tenable in the eye of law. Accordingly, he submitted that
the impugned judgment and order dated 29.08.2023, passed by the learned
Special Judge, Bilasipara, Dhubri, in Special POCSO Case No. 38/2019, is illegal,
unjust and unreasonable and hence, the same is liable to be set aside and
quashed.
9. Mr. Bora also submitted that although the birth certificate of the victim was
exhibited through the I.O., the issuing authority was not examined by the
prosecution to prove its contents. In that regard, he also relied on a decision of
this Court passed in the case of Manirul Islam @ Manirul Zaman Vs. State
of Assam & Anr., reported in 2021 Legal Eagle (GAU) 310, wherein it was
held that “any birth or death which had not been registered within one year of
its occurrence, can be registered only on an order made by a Magistrate of the
First Class or a Presidency Magistrate after verifying the correctness of the birth
or death and on payment of prescribed fee.”
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10. Mr. Bora further submitted that from the evidences of the witnesses and
also from the statements made before the I.O., it is seen that all the witnesses
had improved their statements while adducing evidence before the learned
Special Judge which also creates reasonable doubt in regards to the veracity of
the prosecution case. In that regard also, he relied on a decision of this Court
passed in the case of Abdul Hamid Vs. State of Assam, reported in 1988
Legal Eagle (GAU) 17.
11. Mr. Bora further submitted that it is a settled principle of law that the
conviction can be based on the evidence of the sole testimony of the prosecutrix
if it is reliable and trustworthy and is of sterling quality. It is also well settled
that the oral testimony can be divided into 3 (three) categories, i.e. (i) wholly
reliable, (ii) wholly unreliable & (iii) neither wholly reliable nor wholly unreliable,
and in the case of third category, the Court has to be circumspect and look for
corroboration of any material particulars by reliable testimony, direct or
circumstantial, as a requirement of rule of prudence. In that context, he relied
on a decision of Hon’ble Supreme Court passed in the case of Nirmal
Premkumar & Anr. Vs. State Representation. By Inspector of Police
(Criminal Appeal No. 1098 of 2024) and emphasized on paragraph No. 13
of the said judgment, which reads as under:
“13. This Court was tasked to adjudicate a matter involving gang rape allegations
under section 376(2)(g), I.P.C in Rai Sandeep v. State (NCT of Delhi)5. The Court
found totally conflicting versions of the prosecutrix, from what was stated in the
complaint and what was deposed before Court, resulting in material inconsistencies.
Reversing the conviction and holding that the prosecutrix cannot be held to be a
‘sterling witness’, the Court opined as under:
“22. In our considered opinion, the ‘sterling witness’ should be of a very high quality
and calibre whose version should, therefore, be unassailable. The court considering the
version of such witness should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the witness would be
Page No.# 8/21immaterial and what would be relevant is the truthfulness of the statement made by such
a witness. What would be more relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when the witness makes the
initial statement and ultimately before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There should not be any prevarication
in the version of such a witness. The witness should be in a position to withstand the
cross-examination of any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. Such a version should have co-relation
with each and every one of other supporting material such as the recoveries made, the
weapons used, the manner of offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the version of every other
witness. It can even be stated that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as well as all other such (2020) 10
SCC 573 (2012) 8 SCC 21 similar tests to be applied, can it be held that such a witness
can be called as a ‘sterling witness’ whose version can be accepted by the court without
any corroboration and based on which the guilty can be punished. To be more precise,
the version of the said witness on the core spectrum of the crime should remain intact
while all other attendant materials, namely, oral, documentary and material objects
should match the said version in material particulars in order to enable the court trying
the offence to rely on the core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.” (underlining ours, for emphasis)”
12. Citing the above referred judgment, it is submitted by Mr. Bora, learned
counsel for the appellant, that in the present case, the prosecutrix cannot be
considered as a sterling witness and her testimony is not reliable to sustain the
conviction of the present accused/appellant. He further submitted that the
testimony of the prosecutrix does not inspire confidence and under this
circumstances, the judgment passed by the learned Session Judge is liable to be
set aside and quashed.
13. On the other hand, Mr. Borthakur, learned Additional Public Prosecutor,
submitted that although there was a delay of 5 (five) days delay in lodging the
F.I.R., such delay is not fatal to the prosecution case as it may be attributed to
the common practice of attempting a village bichar before approaching the
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police. Further he submitted that it is to be seen as to whether the prosecution
could establish foundational facts in the present case. From the statements
made by the victim as well as from the eye witness, i.e. the parents of the
victim (P.Ws.- 2 & 3), it is seen that there is no such contradiction in their
statements to disbelieve the victim or the parents of the victim, who run to the
place of occurrence immediately after the occurrence and also saw the accused
while running away from the place of occurrence. The testimony of the victim
remained consistent in every stages and hence, it cannot be disbelieved. Further
he submitted that it is the settled position of law that the conviction can be
based solely on the evidence of the prosecutrix if it is believable and
trustworthy. He further submitted that admittedly the victim was minor at the
relevant time of incident which reveals from her birth certificate as well as from
the medical evidence. More so, the defence never raised the issue that the
victim was a major at the relevant time of incident. Rather from the birth
certificate as well as from the medical documents, it reveals that the victim was
a minor at the time of incident. He further submitted that there may not be any
evidence or sign of recent sexual intercourse with the victim as the medical
examination was done after 8 days of occurrence as there was a delay in
lodging the F.I.R. itself. Accordingly, he submitted that there is no illegality in the
order passed by the learned Trial Court which was passed after assessing the
evidence on record in its true perspective.
14. Mr. Phukan, learned Amicus Curiae for the respondent No. 2, submitted
that from the medical evidence as well as from the birth certificate, it is seen
that the victim was a minor at the time of incident. Her testimony remains
consistent at all stages of the proceedings and there is no reason to disbelieve
her evidence who had specifically stated that the accused committed rape on
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her while she went outside of her house for attending a natural call. There may
be some minor discrepancy in the evidences of the prosecution witnesses, but
such inconsistencies should not be detract from the overall credibility of the
prosecution case and in cases of this nature, the Court should not go for every
technical aspects. More so, the birth certificate is a public document which is
prepared by the public servant in discharing of his duty and unless its
genuineness is specifically challenged, its evidentiary value cannot be doubted.
Accordingly, he submitted that the learned Trial Court committed no error or
mistake while passing the judgment convicting the accused/appellant and
hence, the interference of this Court is not at all necessary.
15. I have given my anxious consideration to the submissions made by the
learned counsel appearing on behalf of the parties and also perused the
materials available on record.
16. Before arriving at any decision, let us first scrutinize the evidences of the
witnesses.
17. C.W-1, the victim of the case, deposed that she knows the accused
Ashraful and the occurrence took place about 2 years ago, at about 02.00 a.m.,
in a jungle. She further deposed in her evidence-in-chief that on the day of
occurrence, at about 02.00 a.m., while she came outside of her home to pass
urine, the accused dragged her to the jungle and forcefully committed sexual
intercourse with her. She further deposed that initially, she did not raise hue and
cry while she was being dragged by the appellant and she raised alarm only
when the accused fled away from the place of occurrence after committing
sexual intercourse with her.
Page No.# 11/21
18. In her cross-evidence, she stated that the accused had the access to their
home. She also stated that after the said incident, one village bichar was held
and as the accused refused to marry her, her father lodged the F.I.R. against the
appellant. She however denied when suggested that her father went to the
house of the accused with a proposal for marrying her and also denied when
suggested that the accused did not commit sexual intercourse with her by
dragging her to jungle.
19. P.W.-1, in her evidence, had deposed that on the night of incident, which
occurred about 1 (one) year ago, on hearing hue and cry, she came out and
saw that the accused was doing bad thing with the victim at a nearby jungle of
the house. She also noticed other people came and the accused fled away from
the place of occurrence. She further deposed that the victim told her that while
she came to pass urine, the accused caught her and dragged her to jungle. The
village bichar was also held.
20. In her cross-examination, she stated that the occurrence took place at
02.00 a.m. and the F.I.R. was lodged when the accused refused to marry the
victim. She denied when suggested that she did not see the accused at the
place of occurrence and did not state the same before the I.O. also.
21. P.W.-2 is the informant and the father of the victim. As per him, the
occurrence, took place about 1 (one) year ago, at about 01.00/02.00 a.m. He
stated that while his victim daughter went outside of the house for attending
nature call, the accused took his victim daughter to a jungle, which is far away
Page No.# 12/21
from their house, and did sexual intercourse with the victim. Thereafter, on
being hue and cry raised by the victim, he reached there along with his wife. He
further stated that after seeing them, the accused fled away and thereafter a
village bichar was held, wherein the accused accepted to marry the victim. But,
later on, the accused refused to marry the victim and therefore he lodged the
F.I.R.
22. In his cross-evidence, he denied when suggested that the victim did not
state before the village people that the accused committed rape on her.
23. P.W.-3, who is the mother of the victim, also deposed in her evidence that
on the night of occurrence, at about 02.00 a.m., her victim daughter went
outside to pass urine and when they searched for her, they found her lying in
the jungle and she was taken there by the accused. She further stated that the
victim told her that the accused did bad thing with her and thereafter a village
bichar was held.
24. In her cross-evidence, she stated that at the time of occurrence, it was
dark and while she reached the place of occurrence, other people were not
there.
25. P.W.-4 deposed that he came to know about the incident on the next day
from one Abu Bakkar at the residence of Sarbesh. He further deposed that the
said Abu Bakkar told him that on the previous night, while the victim went to
the hand pump, situated near to their house, to wash her face and hand, the
accused took her to a nearby jungle and committed rape on her. He also stated
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that on the next day, bichar was held in the residence of one Abdul Goni and in
the said bichar, the accused denied committing rape on the victim. However, on
being asked, the victim told him that the accused committed rape on her with a
promise to marry her.
26. In his cross-examination, he denied when suggested that he did not know
about the incident and also state before the police that he heard about the
incident from Abu Bakkar.
27. P.W.-5 deposed in his evidence that the incident took place about 8/9
months ago, at about 02.00 a.m. As per him, on the night of incident, while
hearing hue and cry in the residence of Sorbesh Ali (P.W.-2), he went there and
heard that while the victim went out of her room to pass urine, the accused
took her to a jungle and later on, the accused left the victim and fled away. He
also deposed that a meeting was supposed to be held in the village but
subsequently the same was not held.
28. In his cross-examination, he stated that at the place of occurrence, Abu
Bakkar, Samir Ali and others were present, but he could not recognize the other
persons. He denied when suggested that he had not stated before the police
that he had not visited the place of occurrence.
29. P.W.-6 stated that he does not know about the incident, though he came
to know that a bichar was held in the village.
30. P.W.-7 deposed that two years prior, at about 4.00/4.30 p.m., while he was
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returning home from New Charua Bakra Market, he heard about the misdeed
committed by the accused to the victim from a group of people.
31. However, in his cross-evidence, he stated that he cannot say on which
date the occurrence took place. He also stated that the case has been filed only
because the accused refused to marry the victim.
32. P.W.-8 is the Medical Officer who conducted medical examination of the
victim and as per his medical report, there was no sign of recent sexual
intercourse on the victim.
33. P.W.-9 is the I.O. of the case and during investigation, he recorded the
statement of the witnesses, statement of the victim under Section 164 Cr.P.C.
and also got the minor victim medically examined by the doctor and further
seized the birth certificate of the victim. But the I.O. had to be re-examined
subsequently wherein it is found that at the time of seizure of the birth
certificate, he inadvertently made a mistake and it was stated to be the birth
certificate of Amela Khatun, i.e. the mother of the victim, instead of the victim.
The birth certificate was also accordingly exhibited by him as M. Ext. No.-1 and
in his re-examination, it was also found that inadvertently, he exhibited sketch
map as Ext.-1, which ought to have been exhibited as Ext.-4, which is corrected
during his re-examination. On the question put by the Court, the I.O. also
replied accordingly that he seized the birth certificate of the victim vide MR No.
86/2019, though inadvertently it was mentioned as birth certificate of the Amela
Khatun, mother of the victim.
Page No.# 15/21
34. P.W.-10 is the another I.O., who subsequently filed the charge-sheet on
the basis of investigation done by the P.W.-9 and the charge-sheet is accordingly
filed under Section 376 of Indian Penal Code read with Section 4 of POCSO Act.
In his cross-evidence, he admitted that he did not examine the neighboring
people of the locality. However, he filed the charge-sheet on the basis of
investigation/statements recorded by the earlier I.O.
35. So, from the above testimonies of the above prosecution witnesses, it is
seen that the C.W.-1 and the P.Ws.-1, 2 & 3 are the vital witnesses of the
prosecution and the other prosecution witnesses are the hearsay witnesses who
came to know about the incident while visiting the house of the informant. P.W.-
4 came to know about the incident on the next date when he visited the house
of the informant and similarly P.W.-5 also went to the house of the informant
when he came to know about the incident. P.W.-6 had no knowledge about the
incident and the P.W.-7 also heard about the incident from the informant that
the accused/appellant had committed the alleged offence. P.W.-8 is the Medical
Officer and the P.Ws.-9 & 10, as discussed above, are the Investigating Officers.
Thus, the evidences of C.W.-1 and P.Ws.- 1, 2 & 3 have to be
scrutinized/assessed carefully. All four witnesses corroborated to each other to
the effect that the incident had happened around 2.00 a.m., when the
victim/C.W.-1 went outside to attend her nature call and the accused allegedly
grabbed her, gagged her mouth, dragged her to the nearby jungle and
committed rape on her. However, it is notable that the victim admitted during
her deposition that initially she did not raise any hue and cry while she was
being dragged by the appellant and she only raised alarm when the accused
fled away from the place of occurrence after committing sexual intercourse.
Page No.# 16/21
There is no explanation offered as to why she remained silent or did not raise
any hue and cry during the initial phase of the incident, particularly, when the
accused dragged her in the night at about 2.00 a.m. from her residence. In the
same time, she also admitted in her cross-examination that the accused had
access to their home and her parents as well as she herself proposed to marry
him, but on his refusal only, the F.I.R. was lodged by her father.
36. P.W.-1 had claimed that she arrived at the place of occurrence hearing hue
and cry from the victim and even she saw the accused doing bad thing with the
victim at the nearby jungle of the house. She further stated that when the other
people arrived, the accused fled away from the place of occurrence. However,
she admitted in her cross-evidence that the F.I.R. was lodged by the P.W.-2 only
when the appellant refused to marry the victim. Her evidence also reveals that
she has not stated before the I.O. that she saw the accused at the place of
occurrence, which otherwise creates a material contradiction between her oral
testimony in the Court and her previous statement under Section 161 Cr.P.C.
37. Coming to the evidences of the parents of the victim, i.e. P.W.-2
(informant/father of the victim) & P.W.-3 (mother of the victim), it is seen that
the occurrence took place at about 2.00 a.m. when their daughter went outside
of the house to attend her nature’s call and the accused took their daughter
inside a jungle, which is far away from their house, and had sexual intercourse
with her. Thereafter, hearing the hue and cry of the victim, they arrived there
and saw the accused fleeing away from the place of incident. Thus, P.W.-2 heard
hue and cry raised by his daughter from the jungle which is far away from his
home, but he did not hear his daughter raising alarm while she was allegedly
Page No.# 17/21
dragged by the accused in the night at 2.00 a.m., which is seems to be quite
improbable. Thereafter a village bichar was held wherein the accused accepted
to marry the victim, but later on, he refused to marry her and then only, the
F.I.R. was lodged by P.W.-2/father of the victim. P.W.-3 also did not utter
anything about the presence of the other people at the place of occurrence nor
admitted the presence of the P.W.-1, who claimed her presence at the place of
occurrence after hearing the hue and cry raised by the victim. Thus, it is seen
that the presence of P.W.-1 is not uttered neither by P.W.-2 nor by P.W.-3 and
except claiming their presence, they have not claimed the presence of other
people at the place of incident. More so, from the evidence of the other P.Ws., it
is seen that they came to know about the incident only when it was reported by
the informant/P.W.-2.
38. Furthermore, from the evidence of the Investigating Officer, it reveals that
he did not examine any witnesses who reside nearby the jungle wherein the
accused/appellant allegedly raped the victim girl. It is also not a case that the
jungle was near to the house of the P.Ws.- 2 & 3 as it is deposed by the P.W.-2
himself that the accused dragged his daughter into a jungle which is far away
from their residence.
39. Coming to the medical evidence of the doctor, it is seen that he did not
find any sign of recent sexual intercourse while examining the victim. However,
admittedly, the medical examination of the victim was conducted after 7-8 days
of the occurrence and hence, the probability of not finding any sign of recent
sexual intercourse may be probable. More so, the medical evidence also did not
speak about any other injury or mark of violence in the body of the victim.
Page No.# 18/21
40. As regards to the issue raised by the defence concerning the genuineness
of the birth certificate, it is seen that admittedly there as an inadvertent mistake
on the part of the I.O., who mistakenly recorded the name of Amela Khatun
instead of the victim’s name while referring to the seized birth certificate. In the
same time, it is also seen that the defence did not raise any objection or dispute
regarding the age of the victim at the time of examination of prosecution
witnesses and the plea is taken only at the time of appellate stage. However,
from the material exhibit, i.e. the birth certificate, it is seen that it was issued by
a public servant within 1 (one) year from the date of birth of the victim and the
certificate issued by a public servant also cannot be questioned unless there is
question of genuineness arises.
41. It is a settled law that the victim of a sexual assault is not treated as
accomplice and as such, her evidence does not require corroboration from any
other evidence if her sole testimony inspires confidence and trustworthy.
42. The Hon’ble Apex Court in the case of Moti Lal Vs. State of M.P.
[(2008) 11 SCC 20] has held in paragraph Nos. 7 & 9 as under:
“7. It is settled law that the victim of sexual assault is not treated as accomplice and
as such, her evidence does not require corroboration from any other evidence
including the evidence of a doctor. In a given case even if the doctor who examined
the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of
the prosecutrix. In normal course a victim of sexual assault does not like to disclose
such offence even before her family members much less before public or before the
police. The Indian women as tendency to conceal such offence because it involves her
prestige as well as prestige of her family. Only in few cases, the victim girl or the
family members has courage to go before the police station and lodge a case. In the
instant case the suggestion given on behalf of the defence that the victim has falsely
Page No.# 19/21implicated the accused does not appeal to reasoning. There was no apparent reason
for a married woman to falsely implicate the accused after scatting her own prestige
and honour.
9. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in
fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars. She is undoubtedly a
competent witness under Section 118 and her evidence must receive the same weight
as is attached to an injured in cases of physical violence. The same degree of care and
caution must attach in the evaluation of her evidence as in the case of an injured
complainant or witness and no more. What is necessary is that the Court must be
conscious of the fact that it is dealing with the evidence of a person who is interested
in the outcome of the charge leveled by her. If the Court keeps this in mind and feels
satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or
practice incorporated in the Indian Evidence Act, 1872 (in short Evidence Act) similar
to illustration (b) of Section 114 which requires it to look for corroboration. If for some
reason the Court is hesitant to place implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend assurance to her testimony short
of corroboration required in the case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the prosecutrix must necessarily
depend on the facts and circumstances of each case. But if a prosecutrix is an adult
and of full understanding the Court is entitled to base a conviction on her evidence
unless the same is own to be infirm and not trustworthy. If the totality of the
circumstances appearing on the record of the case discloses that the prosecutrix does
not have a strong motive to falsely involve the person charged, the Court should
ordinarily have no hesitation in accepting her evidence. This position was highlighted
in State of Maharashtra v. Chandraprakash kewalchand Jain (1990 91) scc 550).”
43. But, here in the instant case, from the discussions made above, it is seen
that the prosecutrix cannot be considered as sterling witness to base conviction
solely on the basis of her statement. From her deposition, as discussed above, it
reveals that although she was allegedly dragged from her house at around 2.00
a.m. to a jungle located at a distance, she did not raise any alarm during the act
of being taken away or while the alleged offence was being committed. It was
only after the accused fled the scene that she raised a hue and cry. Such
Page No.# 20/21
conduct is inconsistent with natural human behavior and raised serious doubt
about the truthfulness of her version. It is improbable that a girl being forcefully
taken from her house to a distant jungle and subjected to sexual assault would
remain completely silent during the entire incident. This part of evidence is
totally unbelievable and does not inspire confidence. More so, the evidences of
P.Ws.-2 & 3 that they heard the victim’s cries from the jungle, which was
admittedly far from their residence also does not appear believable or reliable.
Their version is also not supported by any credible or independent evidence.
These inconsistencies and improbabilities in the testimonies of the key witnesses
create reasonable doubt regarding the veracity of the prosecution case. In such
a scenario, the benefit of doubt goes in favour of the accused.
44. Thus, in view of the entire discussions made above, this Court is of the
opinion that the prosecution could not prove its case beyond reasonable doubt
and it is found that there is no cogent and reliable evidence to prove the case
against the accused/appellant beyond all reasonable doubt. Accordingly, the
appeal stands allowed. The judgment and order dated 29.08.2023, passed by
the learned Special Judge, Bilasipara, Dhubri in Special (POCSO) Case No.
38/2019, stands set aside. The appellant is set at liberty forthwith on being
acquitted of all the charges. Bond, if any, shall stand discharged. The appellant
shall be released forthwith if not required in any other case.
45. Before parting, I put on record the appreciation for the valuable assistance
rendered by Mr. A. Phukan, learned Amicus Curiae for the respondent No. 2, and
I recommend that he is entitled to a fee, as per the notified rate, to be paid by
the State Legal Services Authority.
Page No.# 21/21
46. In terms of above, this criminal appeal stands disposed of.
47. Send back the case record of the Trial Court along with a copy of this
judgment and order.
JUDGE
Comparing Assistant
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