Gauhati High Court
Page No.# 1/13 vs The State Of Assam And Anr. B on 29 August, 2025
Page No.# 1/13
GAHC010011102024
2025:GAU-AS:11592
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./189/2024
RAJESH BAG
S/O- LATE ASSAM BAG,
R/O-BEESAKOPIC T.E. 2 NO. LINE,
P.S.- DOOMDOOMA, DIST- TINSUKIA, ASSAM. PIN- 786151.
VERSUS
THE STATE OF ASSAM AND ANR. B
REPRESENTED BY PP, ASSAM.
2:SMTI. SARITA TANTI
W/O- SRI RAMDHAN TANTI
R/O-BEESAKOPIC T.E. 2 NO. LINE
P.S.- DOOMDOOMA
DIST- TINSUKIA
ASSAM. PIN- 786151
Advocate for the Petitioner : MR N N UPADHYAYA, OWEN. C,MR A K SHARMA,MR S
SHARMA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER (CAV)
Date : 29-08-2025
Heard Mr. A. Thakuria, learned counsel for the appellant. Also heard Mr. B. Sarma,
learned Additional Public Prosecutor for the State respondent No. 1.
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2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against
the impugned judgment and order dated 12.10.2023, passed by the learned Additional
Sessions Judge-cum-Special Judge (POCSO), Tinsukia in Sessions Case No. 08/2023,
whereby, the appellant has been convicted to undergo Rigorous Imprisonment for 4 (four)
years with fine of Rs.5,000/-, in default of payment to undergo Simple Imprisonment for 3
(three) months for committing the offence under Section 354 IPC. The accused is also
sentenced to undergo R.I. for another 6 (six) months for committing the offence under
Section 448 IPC, wherein, both the sentences are to run concurrently.
3. The prosecution case, in brief, is that on 06.11.2022 at about 9:00 p.m. while the
informant was sleeping at her room, at that time her neighbour Rajesh Bag entered her
house and put out all the lights and tried to commit rape on her. As the informant woke up,
the miscreants fled away from there. Thereafter, the informant chased the miscreants and
disclosed the incident to the wife of said Rajesh Bag. Thereafter, the informant lodged an
Ejahar before the Officer-in-Charge of Doomdooma Police Station and on the basis of the said
Ejahar, Doomdooma P.S. Case No. 341/2022 under Section 448/376/511 IPC was registered.
4. Thereafter, on completion of investigation, the I.O. laid Charge-Sheet against the
present accused/appellant before the learned Additional Sessions Judge-cum-Special Judge
(POCSO), Tinsukia, under Sections 448/376/511 of IPC. Accordingly, the learned Additional
Sessions Judge-cum-Special Judge (POCSO), Tinsukia, after considering the materials
available on record and also finding prima facie case, framed charges 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 7 (seven) numbers of
witnesses including the victim, who was examined as PW-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 Additional Sessions Judge-cum-Special Judge (POCSO),
Tinsukia, hearing both the parties and on perusal of the materials available on records, vide
judgment & order dated 12.10.2023, in Sessions Case No. 08/2023, convicted the appellant
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under Sections 354/448 IPC and sentenced him, as aforesaid.
6. On being aggrieved and dissatisfied with the aforesaid impugned judgment and order
dated 12.10.2023, passed by the learned Additional Sessions Judge-cum-Special Judge
(POCSO), Tinsukia in Sessions Case No.8/2023, the present appeal has been preferred by the
accused/appellant.
7. Mr. Thakuria, learned counsel for the appellant submitted that the learned Special Judge
(POCSO) misread and misinterpreted the evidence on record and as such, the impugned
judgment is liable to be set aside and quashed.
8. He further submitted that the learned Special Judge (POCSO) did not appreciate the
evidence in its proper perspective and thus, arrived at the wrong decision, convicting the
accused appellant under Sections 448/354 IPC. The entire conviction is based only on the
testimony of the prosecutrix/PW-1, whose evidence is found to be contradictory and thus, it is
not believable and trustworthy. Further, he submitted that there is no eye witness to the
prosecution case and all the witnesses examined by the prosecution are hearsay witnesses,
who were not present at the place of occurrence. He also submitted that the wife of the
accused, before whom, the matter was first reported by the victim was also not examined by
the prosecution, who was one of the vital witnesses for the prosecution.
9. PW-6, the Doctor, who examined the victim, also did not found any external injury while
examining the victim and thus, the medical evidence also does not support the prosecution
case. Apart from that, the contradictions of the evidences of the PWs are also confirmed by
cross examining the I.O. by the defence.
10. Accordingly, Mr. Thakuria, learned counsel for the appellant submitted that the order of
conviction is perverse which cause prejudice to the accused appellant and hence, the same is
liable to be set aside and quashed.
11. Per contra, Mr. Sarma, learned Addl. PP submitted that the learned Special Judge
(POCSO) had passed the order by appreciating the evidence in its true perspective and thus,
arrived at a just decision and hence, interference of this is not at all necessary.
12. Further, it is submitted that the occurrence took place at about 09:00 p.m. in the night
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and hence, the possibility of eye witness is also very less and the circumstance speaks that
the victim was alone in her house along with her 7 years old minor daughter. However, all the
witnesses corroborated the version of the PW-1 and thus, supported the prosecution case and
there is nothing to disbelieve all the supporting witness. Further, he submitted that PW-5 is
important and vital witness of the prosecution, who came to know about the incident, when
the victim informed about the incident to her husband over telephone in presence of PW-5.
13. Mr. Sarma, learned Addl. PP further submitted that it is a settled position of law that
conviction can be based on the sole evidence of the prosecutrix, if it is believable and
trustworthy.
14. Mr. Sarma, learned Addl. PP accordingly submitted that the learned Special Judge
(POCSO) had rightly passed the order convicting the accused appellant and hence,
interference of this Court is not warranted.
15. So, before arriving at any decision, let us scrutinize the evidences of the
prosecution witnesses.
16. PW-1, the victim of the case, deposed that she knows the accused and he
is her neighbour and the occurrence took place 06.11.2022 at about 09:00 p.m.
She was at her home along with one of her minor daughter as her husband had
gone to attend a marriage function at Goipani. While she was watching T.V., she
felt asleep. She did not lock the door as her husband was suppose to return.
Then, the accused entered her house and put out the lights. When the accused
tried to mounted on her, she woke up and slapped the accused. Then the victim
took the accused to his wife and narrated the whole incident to his wife. The
wife of the accused also assaulted him. Thereafter, the accused fled away from
there. Then, the informant informed her husband about the incident over phone
and he came back and searched for the accused, but he was not found and on
the next day, the informant lodged the FIR.
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17. In her cross examination, the informant stated that the accused used to
come to their house to watch T.V. On the day of the incident the informant was
watching T.V. from the bed room as the T.V. can be seen from their bed room.
At the time of the alleged incident her 7 years old minor daughter was with her.
The lights of all the rooms were switched on. The informant stated that she
usually bolt the door around 08:00 p.m., but on the day of the incident, she did
not bolt the door. It is stated by the informant that she did not wake up when
the accused entered her house and switched off the lights of all the rooms
including the kitchen. The house of the accused is adjacent to her house. On
the day of the incident the accused was wearing a sporting and a half pant and
she could not remember the colour of the apparel. She raised alarm as she
woke up. But no one came. The informant also denied the suggestion that she
had not told before the police that she slapped the accused, she had taken him
to his wife and the wife of the accused also assaulted him. The informant also
denied the suggestion that she had not told before the police that the accused
had entered their house and switched off the lights and the accused mounted
on her.
18. PW-2 stated that victim is her daughter-in-her. She knew the accused, he
is her neighbour. The incident took place 6 months ago at around 09:00 p.m.
and at that time, she was at her home. She came to know about the incident on
the next day morning as there was hue and cry in the village. Then, she went to
the house of the victim and asked her about the incident. The victim told her
that the accused had got up in her bed and attempted to commit bad act on her
when her husband went out to attend a marriage function.
In her cross examination PW-2 stated that she had not stated before
police that the victim had told her that the accused got up in her bed and tried
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to commit bad act on her. She denied the suggestion that she deposed falsely
against the accused as the case was lodged by her daughter-in-law.
19. PW-3 stated that he knew the accused, as he is his neighbour. He also
knew the victim. The incident took place in November, 2022 at about 09:00 p.m.
It is stated by PW 3 that he heard that when the victim was sleeping at her
home, the accused entered her home and the accused mounted on the bed of
the victim and at that time the husband of the victim was not at home as he
went to beat drum in a marriage function. It is stated by PW-3 that the accused
fled away from the scene when the victim made hue and cry.
In his cross examination, PW-3 stated that he did not remember from
whom he heard about the incident. The victim is his relative. He denied the
suggestion that he deposed falsely that the accused had entered the house of
the victim and mounted on her bed. He also denied the suggestion that he
deposed falsely against the accused, as the victim is his relative.
20. PW-4 in his statement stated that he knows the victim and he also stated
that the victim is his sister in law. He stated that he lives in a separate house.
The incident took place in November, 2022 at around 09:30 pm. He stated that
the victim came to their house and told them that the accused entered the
victim’s room and hugged her. At that time victim’s husband was not at home.
Her husband went to Mankhowa T.E. to attend a function. The victim narrated
the incident to her husband over phone and he reached home but the accused
already left the place before his arrival at the place of occurrence.
In his cross examination, PW-4 stated that he had not stated anything
before police what he have stated before the Court as the police did not ask him
about the incident. He denied the suggestion that he deposed falsely against
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the accused, as the victim is his sister-in-law.
21. PW-5 in his evidence-in-chief stated that accused is his neighbour. He also
knew the victim. The incident took place about 5/6 months ago. It is stated by
the PW-5 that on the day of the incident he along with the husband of the
victim went to Mankhowa T.E. to attend a marriage function. When they were at
the function, the victim called her husband over phone and told that the
accused had entered her room and mounted on her bed. The accused touched
over the body of the victim. Thereafter, they came back from the marriage and
went to the house of the victim and the victim informed about the incident.
Thereafter, PW-4 returned to his home and in the meanwhile, the accused had
fled away.
In his cross examination, PW-5 stated that police did not record his
statement. He also denied the suggestion that he deposed falsely against the
accused because of his cordial relation with the family of the victim.
22. PW-6 is the Doctor, who was serving as Deputy Superintendent at
Doomdooma FRU. On 07.11.2022 Dr. Chandra Sekhar Koiri examined Smt.
Sarita Tanti, wife of Sri Ramdhan Tanti of Beesakopie T.E. On examination no
external injury was found. Dr. Chandra Sekhar Koiri examined the victim and he
put his signature in the Medico-Legal Report as Dr. Chandra Sekhar Koiri had no
power to sign the same.
23. PW-7 is the Investigating Officer of the case and in his statement he stated
that on 07.11.2022 he was working as Attached Officer at Doomdooma P.S. and
on that day O.C. Doomdooma P.S. received an Ejahar from one Sarita Tanti and
on the basis of the said Ejahar, Doomdooma P.S. Case No. 341/2022 was
registered and the same was endorsed to him for investigation. Being the I.O. of
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the case, he recorded the statement of the informant and victim and sent the
victim for her medical examination and also sent her to the Court for recording
her statement under Section 164 CrPC. Being the I.O. of the case, he visited the
place of occurrence, prepared sketch map and recorded the statements of the
other witnesses acquainted with the facts of the case and he also arrested the
accused and forwarded him to the Court. He also collected the medical report of
the victim and on completion of investigation he submitted the charge sheet
against the accused.
In his cross examination, the PW-7, I.O. of the case stated that on
07.11.2022 at about 3:15 p.m. he took up the investigation. He stated that in
the sketch map he did not indicate specifically in which room of the house of
the informant the incident took place. It is also stated by the PW-7 that he did
not seize anything from the place of occurrence and also did not seize the
wearing apparel of the victim. It is stated by the I.O. that the victim did not
state before him that the victim had slapped the accused and also did not state
the fact that the victim had taken the accused to his wife and his wife also
slapped him. It is also not stated before the I.O. by the victim that the accused
switched off the lights in the house. The I.O. stated that PW-1 told him that the
accused mounted on her bed. He also denied the suggestion that he filed the
charge sheet in the case without making any proper investigation of the case.
24. From the evidence of the PWs as discussed above, it is admitted that none
of the PWs have seen the occurrence, or nor they were present at the time of
the incident. But all the PWs have supported the prosecution version to the
extent that they heard about the incident which was reported to them by the
victim that on the night of the incident, the accused appellant entered her
house switched off all the lights and mounted on her bed with an attempt to
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commit bad act with the victim and it is also found admitted at the relevant time
of the incident, her husband was not available in the house as he was attending
a marriage function.
25. This part of evidence goes un-rebutted and though all the witnesses were
hearsay, but they supported the case of the prosecution to that extent.
26. As per PW-1, the accused appellant entered into her house switched off all
the lights, when she was along in the house with her 7 years minor daughter
and he tried to mount on her with an attempt to commit bad act on her. When
she woke up, she slapped the accused and also took him to his wife and then
narrated the whole incident to her. But the prosecution failed to examine the
wife of the accused, who was stated to be the first person, to whom the
incident was first reported by the victim.
27. Further, from the cross-examination of PW-1 it also reveals that she used
to bolt the door in the night at around 08:00 p.m., but the victim made an
explanation that on the day of the incident, she did not bolt the door as her
husband was outside, who was attending a marriage function. This part of
evidence could not be rebutted by the prosecution, while cross examining her.
28. Coming to the evidence of PW-5, who is also a vital witness to the
prosecution, and he came to know about the incident on the night of the
incident itself, when the victim informed her husband about the incident over
phone that the accused entered into her house and mounted on her to commit
bad act on her. PW-5 was present at that time along with the husband of the
victim as they were attending a marriage function together and the evidence of
PW-5 also could not be rebutted by the defence and he denied the suggestion
that he deposed falsely before the Court only because he had a cordial relation
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with the family of the victim.
29. Coming to the medical evidence of the Doctor, PW-6, it is seen that he did
not found any external injury on the body of the victim at the time of her
examination. It is quite obvious of not finding any external injury mark on the
body of the victim as there is no allegation that there was any tussle with the
victim, while the accused mounted on her body with an attempt to commit bad
act as she herself stated that when she woke up and identified the accused, she
slapped him and took him to his wife and narrated the whole incident. Thus,
non finding of any external injury on the body of the victim is quite possible as
there is no such allegation of any assault or tussle with the accused appellant.
30. Further from the evidence of the I.O. it is seen that there are some minor
contradictions in the evidence of the victim, especially she did not state before
the I.O. regarding slapping of the accused appellant and also in regards to the
assault made by the wife of the accused appellant at the time when the victim
took the accused to his own house before his wife. But, such minor
contradiction does not go to the root of the prosecution case, wherein, it is
alleged that the accused entered into the house of the victim on the night of
occurrence, mounted on her bed and tried to commit bad act with her and
when she woke up and raised alarm and subsequently, she reported about the
incident to her husband and thereafter, other PWs also came to know about the
same. She made those statements in her F.I.R also and thus, her evidence
completely corroborates her statements made in the F.I.R.
31. So, from the entire discussions made above, it is seen that there is no
reason to disbelieve the prosecutrix, whose evidence goes un-rebutted and
remain consistent in every stages. It is a settled law that the victim of a sexual
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assault is not to be treated as accomplished and as such, her evidence does not
require corroboration from any other evidence if her sole testimony inspires
confidence and trustworthy.
32. Here in the instant case, from the discussion made above, it is seen that
the prosecution has been able to prove the foundational facts of the case to
discharge the burden. The accused only took the plea of denial during the entire
trial of the case and even he did not took any plea of previous enmity etc. while
recording his statement under Section 313 Cr.P.C. Thus, the accused/appellant
could not disprove the prosecution case by adducing any evidence in his
support.
33. The Hon’ble Apex Court in the case of Moti Lal Vs. State of M.P.,
reported in 2008 0 AIR (SC) 882, has held in paragraph Nos. 9 as under:
“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
Page No.# 12/13circumstances 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).”
34. In State of Himachal Pradesh v. Raghubir Singh, (1993) 2 SCC
622; 1993 SCC (Cri) 674, the Hon’ble Supreme Court held that there is no
legal compulsion to look for any other evidence to corroborate the evidence of
the prosecutrix before recording an order of conviction. Evidence has to be
weighed and not counted. Conviction can be recorded on the sole testimony of
the prosecutrix, if her evidence inspires confidence and there is absence of
circumstances which militate against her veracity. A similar view has been
reiterated by the honourable Supreme Court in Wahid Khan v. State of Madhya
Pradesh (2010) 2 SCC 9; AIR 2010 SC 1, placing reliance an earlier judgment in
Rameshwar S/o kalian Singh v. State of Rajasthan, AIR 1952 Sc 54. Thus the
law that emerges on the issue is to the effect that the statement of prosecutrix,
if found to be worthy of credence and reliable, requires no corroboration. The
Court may convict the accused on the sole testimony of the prosecutrix.
35. So, from the entire discussions made above, it is seen that the prosecution
has been able to prove that the accused/ appellant had committed the offence
of sexual assault on the victim/prosecutrix, at the relevant time of incident.
36. Thus, considering the entire facts and circumstances of this case, I am of
the opinion that the learned Addl. Sessions Judge had rightly passed the order
of conviction and sentence against the accused/appellant is justified and hence,
I find that the judgment and order dated 12.10.2023, passed by the learned
Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia, in Sessions
Case No. 8/2023, requires no interference of this Court and accordingly, the
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same stands upheld.
37. With the above observation, the criminal appeal stands disposed of.
JUDGE
Comparing Assistant
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