Gauhati High Court
Biju Saikia vs The State Of Assam on 29 March, 2022
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GAHC010019162021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/2/2021
BIJU SAIKIA
SIVASAGAR, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. M DUTTA(AMICUS CURIAE)
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./79/2020
KUMUD CHANDRA BORGOHAIN
S/O LATE GUNONATH BORGOHAIN
RESIDENT OF NAMTI GOHAIN GAON
P.S. NAMTI
DIST. SIVASAGAR
PIN 785680
ASSAM
VERSUS
STATE OF ASSAM AND ANR.
REPRESENTED BY LEARNED PUBLIC PERSECUTOR
GAUHATI HIGH COURT
GUWAHATI
2:INFORMANT PROSECUTRIX 'X'
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REPRESENTED BY HER FATHER
SRI DILIP SAIKIA
S/O- LATE KULADHAR SAIKIA
NAMTI PARABANTI GAON
P.O AND P.S.- NAMTI
DIST- SIVASAGAR
ASSAM-785680.
------------
Advocate for : MR. S S BAROOAH
Advocate for : PP ASSAM appearing for STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT & ORDER (ORAL)
Date : 29-03-2022
(Suman Shyam, J)
Heard Dr. B.N. Gogoi, learned counsel for the appellant in Crl. Appeal No. 79/2020
and Mr. Mrinmoy Dutta, learned amicus curiae appearing for the appellant in Crl. Appeal
(J) No. 02/2021. We have also heard Mr. D. Das, learned Addl. P.P. Assam appearing on
behalf of the State in both these appeals. Mr. A. Bhattacharyya, learned counsel for the
informant/ respondent No. 2 is also present.
[2] Both these appeals arise out of the common judgment dated 21-12-2019 passed by
the learned Special Judge, Sivasagar in Special (P) Case No. 46/2017. By the impugned
judgment, the appellant in Crl. Appeal No. 79/2020, viz. Kumud Chandra Borgohain (A-1)
has been convicted under Section 6 of the POCSO Act read with Section 376(2)(n) of the
IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.
5,000/- with default stipulation. By the impugned judgment, the appellant in Crl. Appeal
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(J) No. 02/2021 was also convicted under Section 17 read with Section 6 of the POCSO
Act and under Section 109 read with Section 376(2)(n) of the IPC and sentenced to
undergo rigorous imprisonment for life and also to pay fine of Rs. 5,000/- with default
stipulation.
[3] At the outset it deserves to be mentioned herein that the two victim girls who have
brought the allegation against the appellants are the daughters of one of the appellants
Smti. Biju Saikia (A-2). On 30-09-2017 one of the twin daughters of the appellant A-2
who is referred to as 'D', in this case had lodged an ejahar before the Officer-in-Charge,
Namti Police Station alleging that the A-1, a resident of Namti Chariali, Gohain Gaon had
been visiting their house for almost 10/12 years and during that time, he had been
indulging in illicit relationship with her mother (A-2). Afterwards the accused A-1 on the
pretext of taking her to the hospital, took her to a hotel at Jorhat and sexually assaulted
her. That apart, he also took her to Dibrugarh and sexually assaulted her and also tried to
assault her at home. In addition to that, by luring her sister 'J' saying that he would take
her to Guwahati for outing, on two occasions, he had sexually assaulted her also at night.
Her mother A-2 has full cooperation in the matter. Therefore, request had been made
before the Investigating Officer (I/O) to take necessary action in the matter.
[4] Based on the ejahar dated 30-09-2017, Namti P.S. Case No. 21/2017 was
registered under Section 4 of the POCSO Act and the matter was taken up for
investigation. Upon completion of the investigation, the I/O had submitted charge sheet
against both the accused persons. Based on the charge sheet submitted by the I/O the
learned Special Judge had framed charge under Section 6 of the POCSO Act read with
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Section 376(2)(f)(n) of the IPC against A-1. Charge against A-2 was also framed under
the aforesaid sections as well as Section 109 IPC for abatement of the main offence.
Since the accused persons had denied the charge and claimed innocence, they were
subjected to trial.
[5] During the course of trial, the victims, viz. 'D' and 'J' were examined by the
prosecution as PW-1 and PW-2 respectively. The prosecution side has also examined eight
other witnesses including the father (PW-4) and the brother (PW-3) of the victim girls, the
Doctor, who had conducted medical examination of the victims (PW-8) and the I/Os who
had conducted the investigation and submitted report as PWs- 9 and 10 respectively. Two
witnesses, viz. Smti. Queen Dutta and Mr. Farid Islam Hazarika were examined as Court
Witness Nos. 1 and 2. After recording the evidence adduced by the prosecution side the
statement of the accused persons were recorded under Section 313 Cr.P.C. The case of
the defense was one of total denial. The accused (A-1) has also stated that when the
demand for money amounting to Rs. 7,00,000/- made by the brother of the victim was
turned down, a false case was instituted against him. Based on the evidence available on
record, the learned Special Judge, Sivasagar had held that the charges brought against
both the accused persons had been established beyond reasonable doubt and accordingly,
convicted the accused persons and sentenced them in the manner indicated hereinabove.
[6] Assailing the impugned judgment dated 21-12-2019, Dr. Gogoi, learned counsel for
the appellant in Crl. A. No. 79/2020 has argued that save and except the testimony of the
two victim girls there is not even an iota of evidence to establish the charge brought
against the accused persons. He submits that there are material contradiction in the
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testimony of PWs- 1 and 2 and even the family members of the victims have not
supported the prosecution story. That apart, there is no explanation for the delay in
lodging the ejahar. Under the circumstances, submits Dr. Gogoi, the learned trial court has
committed manifest illegality in convicting the appellant including the mother of the
victims for committing offence under Section 6 of the POCSO Act. Dr. Gogoi has further
argued that the ejahar lodged by the father of the victims on 29-09-2019 making
allegations against the accused A-1 based on which Namti P.S. Case No. 20/2017 was
registered under Section 366 IPC has ended in final report and the version narrated in the
said ejahar is wholly inconsistent with the prosecution story. According to Dr. Gogoi, not
to speak of sufficient evidence to prove the charge, the prosecution has even failed to
establish that the victims were aged below 18 years on the alleged date of occurrence. In
such view of the matter, learned counsel has prayed for setting aside the conviction of A-1
and for acquitting him.
[7] Supporting the contention advanced by Dr. Gogoi, Mr. Mrinmoy Dutta, learned
amicus curiae appearing for the appellant (A-2) in Crl. Appeal (J) No. 02/2021 has argued
that the version emerging from the evidence of PWs- 1 and 2 is not believable due to
inherent contradiction in their statements and there are material improvement in the
version of prosecution witnesses. Contending that the medical evidence as well as
testimony of CWs- 1 and 2 did not support the prosecution case, Mr. Dutta has argued
that the evidence of PW-3, i.e. the brother of the victims also contradicts the testimony of
the prosecutrix and thereby conclusively demolishes the prosecution case. The learned
amicus curiae, therefore, submits that present is a fit case where the impugned judgment
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deserves to be set aside and the appellant be acquitted.
[8] Mr. D. Das, learned Addl. P.P. Assam appearing for the respondent State, on the
other hand, has argued that the prosecution has succeeded in establishing that the victim
girls were aged below 18 years on the date of occurrence and from their testimony, it has
clearly emerged that both the appellants were not only having illicit relationship behind
the back of the husband of A-2 but the complicity of the mother in permitting her
daughters to be sexually assaulted by accused A-1 has also been established. Under the
circumstances, submits Mr. Das, there is no justifiable ground for this Court to interfere
with the impugned judgment. The learned Addl. P.P. has, however, submitted in his usual
fairness that both the alleged occurrence had apparently taken place about a year before
the ejahar was lodged and there is no proper explanation for the delay in lodging the
ejahar.
[9] We have considered the submissions made by the learned counsel for both the
parties and have also gone through the materials available on record. On a careful
scrutiny of the record, we find that the prosecution story is almost entirely based on the
testimony of two victim girls who were examined as PWs- 1 and 2.
[10] In her testimony PW-1, i.e. 'D' has deposed that A-2 is her mother and A-1 was
known to her. A-1 used to frequently visit their shop. Presently, her age was 18 years and
she was a student of Class-X at Namti Girls School. Her date of birth was 17-06-1999. In
the year 2016, the accused A-1 used to visit their residence and he became like a family
member. In the year 2016, A-1 had offered to take her to Dibrugarh for her skin problem
and medical check-up which she had declined. However, her mother (A-2) had forcibly
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sent her to Dibrugarh with A-1. The accused took her to one hotel at Dibrugarh and
committed rape on her inside the hotel room. The accused did not take her to hospital for
medical treatment. They stayed in the hotel for one night. The accused had introduced
her as his daughter in the hotel by changing her surname. From Dibrugarh, the A-1
brought her back to her residence. She did not inform the matter to her mother as her
mother did not listen to them and remained under the influence of A-1. After about a year
A-1 took her to Jorhat for medical consultation for her skin problem and after consultation
with the Doctor, he took her to a hotel at Jorhat and kept her in the said hotel for a night.
Her mother had called A-1 and he informed her that he will spend the night in the house
of a known person. By keeping her in the hotel at Jorhat, the accused (A-1) had
committed rape on her at night. PW-1 has further stated that the accused took her to
Jorhat thrice and committed rape on her on all the three occasions. Out of these three
occasions, she was taken for medical check-up on two occasions and once for visit. On all
the three occasions she went alone with the accused A-1 being forced by her mother, in
spite of her reluctance. This witness has further deposed that the A-1 used to come to
their residence in the absence of her father and used to sleep with A-2. In the absence of
her father, her mother (A-2) used to call the A-1 and he used to spend nights in their
house. When the A-1 came to their house, he used to touch her body and also took her
sister 'J' to Guwahati and committed misdeed. 'J' went to Guwahati once with her mother
and once alone. PW-1 has further stated that she had reported the matter to her aunt
Mira Devi Saikia. Just before the filing of the case, during the night hours, when A-1 came
to their house, herself and 'J' did not treat him well, as a result of which, A-2 had rebuked
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them. On that, her elder brother Bibhuti Saikia asked them about the reason for doing so
and then they narrated the incident of rape and misbehavior committed by A-1 on them.
Having come to know about the same, her brother had scolded A-1, but her mother (A-2)
had protected him and even asked her to beg apology, which she refused. On hearing the
hue and cry in their house, the neighbouring people had gathered. Her brother had also
slapped the accused A-1. Then her mother (A-2) had sent A-1 out of the house through
the back side of the house. On the same night, they went to Namti Police Station and
lodged FIR. PW-2 has confirmed that Exhibit- 1 is the FIR and Exhibit- 1(i) was her
signature. She has also deposed that the police had interrogated her and took her as well
as victim 'J' to the hospital. Her statement was also recorded before the Magistrate and
Exhibit-2 is the said statement. During her cross-examination, PW- 1 has stated that her
birth was in their residence. Namti Public Health Centre was near their house but she
could not say if the said hospital issued birth certificate. Exhibit-4 Birth Certificate was
issued by the Geleki Unit of Registrar of Birth and Death. This witness has denied the
suggestion that her age was higher than what had been claimed and that she had failed
once in Class- VIII and on several occasions, in the school. She has also admitted that no
document showing her skin ailments in the year 2016 had been submitted nor had she
disclosed the name of the Doctor who had examined her at Guwahati.
[11] During her cross-examination, PW-1 had denied the suggestion that she had not
stated before the I/O that " my mother has forcible sent me with the accused Kumud
Chandra Gogoi to Dibrugarh; that in the hotel accused Kumud introduced me as his
daughter by changing my title; that I did not inform the matter to my mother as she did
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not listen to us and remain influenced from Sri Kumud Chandra Borgohain; that from
Jorhat when my mother called Sri Kumud Chandra Borgohain, he informed my mother
that he will stay at residence of his known person; that accused took me to Jorhat trice
and committed rape on all the three occasions; that out of this, twice I was taken for
medical check up and once for visit; that in absence of my father my mother used to call
Sri Kumud Chandra Borgohain and he used to stay at our home for night; that while he
come to our residence, Sri Kumud Chandra Borgohain used touch my body; that accused
took my sister Jimpy to Guwahati twice and also committed misdeeds with him and once
Jimpy went to Guwahati with my mother and once alone; that we have reported the
matter to our aunt Mira Devi Saikia, that just before filing of the case, at night hours,
when Sri Kumud Chandra Borgohain came to our house and I and Jimpy did not
responded well to treat him, he rebuked us, that on this my elder brother Bibhuti Saikia
asked about the reason and we narrated the incidents of misbehaves and rape on us by
Sri Kumud Chandra Borgohain, that on knowing this my brother scolded Sri Kumud
Chandra Borgohain but my mother protected the accused Sri Kumud Chandra Borgohain;
that even our mother asked us to beg apology but we refused; that on hearing hue and
cry at our house, neighbouring peoples gathered at our house; that my brother also
slapped the accused Sri Kumud Chandra Borgohain and on this my mother sent back the
accused from back side of the house."
PW-1 has also denied the suggestion that A-1 never took her to any hotel or kept
her there and never committed any rape on her. PW-1 has further denied that she has
deposed falsely on being tutored by others and that she has falsely implicated her mother
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since she might reveal the truth.
[12] PW-2 'J' is the twin sister of the PW-1 and is the other victim in this case. In her
deposition before the court, PW-2 has stated in similar lines by saying that the accused A-
2 is her mother and A-1 is known to her. A-1 used to frequently visit their shop and
residence. Presently, her age was 18 years and she was studying in Class- X at Namti Girls
School. Her date of birth was 17-06-1999. Since 2006, the A-1 used to visit their
residence while he was an electrical contractor and became like a family member. The A-1
also used to visit the shop opened by her mother (A-2). A-1 had helped her mother
financially in maintaining the shop and the family. In the absence of her father, her
mother used to call the A-1 to their residence, who used to come and stay with her
mother. While he stayed in their residence over the past 6/7 years, the A-2 used to ask
the A-1 to sleep with them. She along with her sister 'D' used to sleep with the A-1. While
sleeping with A-1, he used to commit rape on her and 'D'. Though she had informed the
matter to her mother she disbelieved them and remained silent. In the year 2016, during
the summer vacations, the A-1 took her to Guwahati for a visit and kept her in a rented
house for two nights. The A-1 had committed rape on her twice during the stay at
Guwahati. PW-2 has further stated that A-1 used to bring drinks and fruits and used to
force her to consume drinks. After that, the A-1 tried to take her out side but she used to
boldly refuse. A-1 also took her sister 'D' to Jorhat and Dibrugarh for medical consultation
for her skin problem. 'D' had reported to her that the A-1 had committed rape on her at
Dibrugarh and Jorhat. She also informed the matter to her best friend Queen Dutta (CW-
1). A-1 committed rape on 'D' on several occasions. The witness has stated that she has
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informed the matter to the Secretary of the NGO Mr. Farid Islam Hazarika (CW-2). Just
before filing the case, a feast was organized in their residence due to home coming of her
uncle. After the dinner, when A-1 came to their house and she and 'D' did not respond
well to him, at that time, A-1 had rebuked them. At that stage, her elder brother Bibhuti
Saikia (PW-3) had asked her about the reason and they narrated the incident of rape and
misbehavour committed on them by the A-1. Having come to know about the same, her
brother had scolded the A-1 but her mother (A-2) had protected the accused from public
outrage. On hearing the hue and cry coming from their house neighbouring people had
gathered but her mother had sent the accused from the back side of the house. On the
same night, they went to Namti Police Station and lodged ejahar. Police took her and 'D'
to the hospital. She also recorded her statement before the Magistrate. During her cross-
examination, this witness has stated the she did not know if the Geleki Unit of Registrar of
Birth & Death had issued her the birth certificate Exhibit- 5, but has denied that Exhibit- 5
is a document procured by her father so as to show that her age was less than the her
actual age. This witness has further stated that she has failed once in Class- IX and
appeared in Class-X examination from Srimanta Sankardev High School at Meteka. On
being confronted by the defense side, PW-2 has denied the suggestion that she had not
stated before the police that "Accused Kumud also used to visit the shop opened my
mother and came in touch; that in absence of my father, my mother used to call Sri
Kumud Chandra Borgohain to our residence and stay with mother; that while he used to
stay in our residence, since last 6-7 years my mother asked Sri Kumud Chandra
Borgohain to sleep with us; while sleeping with us Sri Kumud Chandra Borgohain used to
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commit rape on me and Dimpy; though I informed the matter to my mother, she
disbelieves us and remained mum; at Guwahati, accused also used to bring drink and
with fruits forced us to consume drink; that after this accused tried to take me again
outside but I boldly refused; that accused took my sister Dimpy to Jorhat and Dibrugarh
for medical consultation for her skin problem, that Dimpy reported to me that accused Sri
Kumud Chandra Borgohain has committed rape on her at Dibrugarh and Jorhat; that she
also told the matter to her best friend Queen Dutta; that accused Kumud Chandra
Borgohain committed rape on Dimpy on several occasions; that I have also informed the
matter to NGO secretary Farid Islam Hazarika; that just before filing of the case, a feast
was organized at our residence on coming of uncles, that after the dinner, when Sri
Kumud Chandra Borgohain came to our house and I and Dimpy did not responded well to
treat him and on this Sri Kumud Chandra Borgohain rebuked us; that on this my elder
brother Bibhuti Saikia asked about the reason and we narrated that incidents of
misbehaves and rape on us by Sri Kumud Chandra Borgohain; that on knowing this my
brother scolded Sri Kumud Chandra Borgohain but my mother protected the accused Sri
Kumud Chandra Borgohain from public outrage; that on hearing hue and cry at our
house, neighbouring peoples gathered at our house and on this my mother sent back the
accused from back side of the house."
This witness has also denied the suggestion that accused A-1 never took her to
Guwahati nor did he ever commit rape on her. She had also denied of having falsely
deposed before the Court on being tutored by others.
[13] PW-3, Sri Bibhuti Saikia is the elder brother of the two victim girls. He has stated in
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his deposition that the A-2 is his mother and A-1 is known to him who used to frequently
visit their shop. Victim 'D' and 'J' are his younger sisters. They are twins, presently their
age was about 16 years and both of them were studying in Class-X at the Namti Girls
School. Since about past 10 years A-1 has been visiting their residence and has become
like a family member. Whenever he came home, he used to take lunch or dinner. On 30-
09-2017, when their family members and uncles joined in a get together and after the
guests had left the house, A-1 came to their house and asked for a glass of water from
his sister 'J'. At that time, he was taking his meal. His sister 'J' had replied that by giving
water to the A-1 they were maintaining a snake by giving milk. He then asked his sister 'J'
as to why she had uttered these words but 'J' did not give any direct reply. On being
asked 'D' narrated to him in details about the incident. His sister 'D' had told him that the
A-1, by taking both of them to various places, had attempted to commit rape on them. 'D'
also told him that the A-1 took them to Jorhat, Dibrugarh and Guwahati. Having come to
know about the same, he had an altercation with A-1. On hearing the hue and cry
neighbouring people had gathered in her house. Seeing the villagers coming to their
house A-1 fled from their house by leaving behind his scooty. His mother also made an
attempt to set the shop on fire by pouring kerosene but she failed. On the same night,
they went to Namti P.S. and his sister lodged an ejahar. Police came to their house and
interrogated him.
[14] During cross-examination, PW-3 has stated that he had not seen A-1 staying in
their house at night and he could not say the dates on which the A-1 took his sister to
Guwahati, Jorhat and Dibrugarh. PW-3 has categorically deposed that he had not seen his
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sisters going with the A-1 to Guwahati, Jorhat and Dibrugarh. PW-3 has also denied that
he had deposed falsely in the matter and has denied that he had asked for Rs. 7,00,000/-
from the A-1 and on his refusal, had come up with a false case against him. This witness
has also denied of having falsely implicated his mother as she could have revealed the
truth. Further, the PW-3 has denied the suggestion made by the defense that he had not
stated before the police that on 30-03-2017, when their family members and uncles
joined in a get together, after the guests had left, the accused A-1 came to their house
and asked for a glass of water from his sister 'J'. At that time, he was taking his lunch.
When the accused A-1 asked for water 'J' told him that they are maintaining a snake by
giving water and then he had asked 'J' as to why she has uttered these words, she did
not give any direct reply.
[15] PW-4 Sri Dilip Saikia is the father of the victim girls. He has deposed before the
court that A-2 is his wife and A-1 was known to him. A-1 used to frequently visit their
shop. The victim 'D' and 'J' are his daughters. They were twins. Presently their age was
about 18 years and both of them were reading in Class-X at the Namti Girls School. The
A-1 used to visit their residence since about past 07 years. He had to remain away from
home consecutively for 3/4 days in a week in connection with his business. PW-4 has
stated that he had heard that A-1 used to come to his house. On 30-09-2017, at about
08:00 pm, when he returned home from Sonari, he did not find anyone at home. His
brother Monai Saikia told him that as the A-1 had misbehaved with his daughters, all the
family members went to Namti Police Station. At about 09:00 pm, one boy from the
neighbourhood took him to Namti Police Station on the plea that he had been called by
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the Police officer. At the Namti Police Station the officer informed him that his wife had
fled away with one man. He had seen his son and two daughters at the Namti Police
Station but did not ask them as to why they were there. Thereafter, he returned home
and at about 12:00 midnight, his children also returned home. On the next day, during
the evening hours, his wife returned home. During the cross-examination, PW-4 has
denied that since the A-1 had recently retired from service they had asked for Rs.
7,00,000/- from him and on his refusal, they concocted a false story and lodged a case
against him. PW-4 had also denied the suggestion that they had implicated the A-2 since
she could have told the truth.
[16] Smti. Mira Devi Saikia is the aunt of the victim girls and she was examined by the
prosecution as PW-5. This witness has deposed that the A-2 is the wife of her husband's
cousin and A-1 was known to her. She had seen the A-1 visiting the house of A-2 since
last 07 years, i.e. since the time she came to the village after her marriage. Victims 'D'
and 'J' are the twin daughters of A-2. About 7/8 months back, while she and 'J' went to
field for cultivation 'J' had informed her with some hesitation that her mother A-2 had
compelled her and 'D' to establish physical relationship with the A-1. She has also stated
that due to some skin problem of 'D' her mother had sent her with the A-1 to Jorhat for
medical consultation. The A-1 kept 'D' in a hotel and established physical relationship with
her against her will. 'J' had also told her that A-1 had taken her to Guwahati and
attempted to establish physical relationship with her but he failed due to the resistance
offered by her. Having come to know about this she had asked her to inform the matter to
her brother and father. After about a month when the A-1 came to the house of the
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victims 'J' misbehaved with the A-1 in presence of her brother and thereafter, the twin
had reported the incident that had happened with them. While the brother of 'D' tried to
assault the A-1, A-2 had protected him and thereafter, both of them fled the place. The
above incident was reported to her by 'J'.
[17] PW-6 Sri Pranab Dutta is the next door neighbour of the victims and A-2. This
witness has deposed that he had seen the A-1 frequently visit the resident of A-2. About
7/8 months ago, at about 06:00 pm, while he was in his shop, on hearing hue and cry, he
went to the house of the accused A-2 and saw that Bibhuti Saikia (PW-3) had scolded A-
1. PW-6 has stated that PW-3 had informed him that the A-1, by taking his sister 'J' and
'D' to Dibrugarh and Jorhat committed misdeeds with them and asked him for advice as
to what he could do with the accused (A-1). When he enquired about the incident from
'D' and 'J' accused (A-1) fled away with the help of A-2. He had also heard a hue and cry
of A-2 and she left the house. Several villagers had gathered there and then he returned
to his shop. The matter was informed to the police. Subsequently, on being asked by 'D'
and 'J' they told him that A-1 had taken them to the hotels and after showing
pornography, made physical relationship with them. During his cross-examination the PW-
6 had admitted that he had not made the above statement before the I/O.
[18] PW-7 Ashim Dutta is another neighbour and he knew the accused persons as well
as the victims who were the twin daughters of A-2. This witness has also deposed that he
had seen the A-1 frequently visit the house of A-2 and also heard from the villagers that
both of them had maintained an illicit relationship. The PW-7 has stated that on the date
of filing of the FIR one of the sisters, on finding him on the road, had complained that the
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A-1, by taking her to Dibrugarh or Jorhat in the pretext of consultation with skin care
doctor, after keeping her in the hotel, had committed rape on her. According to PW-7 the
victim girl had also stated that while she had informed the matter to her mother, she
refused to divulge the same to others. She had also stated that her mother had forced
the twin sisters to go with the A-1 and when they showed reluctance she used to scold
them. On that he had advised them to inform the matter to the villagers. Accordingly, a
meeting was held. Several villagers gathered at the Perabhari L.P. School and after
discussion, resolved to take the matter to police. PW-7 has also stated that he was in the
meeting and in the villagers meeting also, both the twin sisters had narrated the incident.
However, during his cross-examination, the PW-7 had denied that he had not stated so
before the I/O.
[19] PW-8 Dr. Duplay Patir was the Doctor who had examined the victim girls 'D' and 'J'
on 02-10-2017 while on duty at Sivasagar Civil Hospital as Sr. Medical and Health Officer.
The opinion of the Doctor was that the victim 'D' was aged above 18 years and she did
not have any signs of recent sexual intercourse. The Doctor had opined that the victim
did not have any signs of pregnancy nor did she have any signs of injury on her body and
on private parts. Similar is the opinion of the PW-8 with regard to victim 'J'. During his
cross-examination, PW-8 has stated that the hymen of a young girl may be torn due to
cycling, running etc. It may also be torn due to use of fingers for irritation for skin
diseases. The Doctor has further deposed that the victim 'D' did not complain of any skin
disease to him.
[20] PW-9 Sri Rabindra Hazarika is the Investigating Officer (I/O) who had conducted
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the investigation in connection with Namti P.S. Case No. 21/2017. PW-9 has deposed that
on 30-09-2017, while he was posted as O/C, Namti Police Station, at about 08:00 pm, he
had received one written ejahar from victim 'D', based on which, Namti P.S. Case No.
21/2017 was registered under Section 4 of the POCSO Act. He then took over the matter
for investigation. During the course of investigation, he had examined the informant-cum-
victim 'D' as well as the other victim 'J', their brother Bibhuti Saikia (PW-3) and others. On
the same night, he went to the place of occurrence and drew a sketch map. He had
apprehended the A-1 from his house and also the A-2 after searching for her. On the next
day the victims were sent for their medical examination and also to the court for
recording their statements under Section 164 Cr.P.C. PW-9 has further stated that during
investigation, he had collected the birth certificate of the victims, as produced by the
informant, where the date of birth of the victims was mentioned as 17-06-1999.
[21] On being transferred, he had handed over the case diary to his successor. During
his cross-examination, PW-9 has replied that except Dilip Saikia (PW-4) he had recorded
the statement of all other witnesses at the police station on the same night when FIR was
received. He has further stated that he did not visit Jorhat, Dibrugarh or Guwahati as the
victim did not specifically disclose the name of the hotels of those places or the name of
the Doctors. In his cross-examination, the I/O has brought on record the contradictions in
the statement of the victims 'D' and 'J' as well as the other witnesses which are
reproduced herein-below for ready reference.
PW-9 has deposed that witness 'D' in her statement before him recorded u/s 161
Cr.P.C. did not state that "my mother has forcibly sent me with the accused Sri
Kumud Ch. Borgohain to Dibrugah; that in the hotel accused Kumud introduced me
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as his daughter by changing my title; that I did not inform the matter to my
mother as she did not listen to us and remain influenced from Sri Kumud Chandra
Borgohain; that from Jorhat when my mother called Sri Kumud Chandra Borgohain,
he informed my mother that he will stay at residence of his known person; that
accused took me to Jorhat thrice and committed rape on all the three occasions;
that out of this, twice I was taken for medical check up and once for visit; that in
absence of my father my mother used to call Sri Kumud Chandra Borgohain and he
used to stay at our home for night; that while he come to our residence, Sri Kumud
Chandra Borgohain used touch my body; that accused took my sister Jimpy to
Guwahati twice and also committed misdeed with her and once Jimpy went to
Guwhati with my mother and once alone; that we have reported the matter to our
aunt Mira Devi Saikia, that just before filing of the case, at night hours, when Sri
Kumud Chandra Borgohain came to our house and I and Jimpy did not responded
well to treat him, he rebuked us, that on this my elder brother Bibhuti Saikia asked
about the reason and we narrated the incidents of misbehaves and rape on us by
Sri Kumud Chandra Borgohain, that on knowing this my brother scolded Sri Kumud
Chandra Borgohain but my mother protected the accused Sri Kumud Chandra
Borgohain; that even our mother asked us to beg apology but we refused; that on
hearing hue and cry at our house, neighbouring peoples gathered at our house;
that my brother also slapped the accused Sri Kumud Chandra Borgohain and on
this my mother sent back the accused from back side of the house." However, the
said witness has stated about rape at Jorhat.
Witness 'J' in her statement before him recorded u/s 161 Cr.P.C. did not state
that "Accused Kumud also used to visit the shop opened my mother and came in
touch; that in absence of my father, my mother used to call Sri Kumud Chandra
Borgohain to our residence and stay with mother; that while he used to stay in our
residence, since last 6-7 years my mother asked Sri Kumud Chandra Borgohain to
sleep with us; while sleeping with us Sri Kumud Chandra Borgohainused to commit
rape on me and Dimpy; though I informed the matter to mother, she disbelieves us
and remained mum; at Guwahati, accused also used to bring drink and with fruits
forced us to consume drink; that after this accused tried to take me again outside
but I boldly refused; that accused took my sister Dimpy to Jorhat and Dibrugarh
for medical consultation for her skin problem, that Dimpy reported to me that
accused Sri Kumud Chandra Borgohain has committed rape on her at Dibrugarh
and Jorhat; that she also told the matter to her best friend Queen Dutta; that
accused Kumud Chandra Borgohain committed rape on Dimpy on several
occasions; that I have also informed the matter to NGO secretary Farid Islam
Hazarika; that just before filing of the case, a feast was organized at our residence
on coming of my uncles, that after the dinner, when Sri Kumud Chandra Borgohain
came to our house and I and Dimpy did not respond well to treat him and on this
Sri Kumud Chandra Borgohain rebuked us; that on this my elder brother Bibhuti
Saikia asked about the reason and we narrated the incidents of misbehaves and
rape on us by Sri Kumud Chandra Borgohain; that on knowing this my brother
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scolded Sri Kumud Chandra Borgohain but my mother protected the accused Sri
Kumud Chandra Borgohain from public outrage; that on hearing hue and cry at our
house, neighbouring peoples gathered at our house and on this my mother sent
back the accused from back side of the house." But in her statement she has only
stated that accused Kumud took her to Guwahat and by keeping her in a rented
house for two days, committed rape on her.
Witness Bibhuti Saikia in his statement before him recorded u/s 161 Cr.P.C.
did not state that "On 30.09.2017 when other family members and uncles joined in
a get together, after leaving the guest, accused Sri Kumud Chandra Borgohain
came to our house and asked for a glass of water from my sister Jimpy Saikia. At
that time, I was taking my lunch. On asking water by accused, Jimpy told that by
giving milk they are maintaining snake. On this I asked Jimpy why she uttered this
word. She did not give me direct reply." This witness also did not state before him
that "On knowing this I made altercation with Sri Kumud Chandra Borgohain. On
hearing hue and cry at our house, neighbouring peoples gathered at our house. On
arrival of villagers, accused by leaving his scooty in our house, flee away there
from. On this my mother also by spaying kerosene attempted to set our shop on
fire but failed and she left the place."
Witness Dilip Saikia in his statement before him recorded u/s 161 Cr.P.C.
stated that "he lodged an FIR." Said witness Dilip Saikia lodged a FIR at Namti PS
on 29.10.2017 alleging inter alia that Kumud Ch. Borgohain abducted Biju Saikia by
alluring her. On that FIR Namti PS case No. 20/2017 was registered. Ext. A is the
certified copy of the FIR lodged by Dilip Saikia.
Witness Mira Devi Saikia in her statement recorded u/s 161 Cr.P.C. did not
state that "while I and Jimpy went to field for cultivation, with hesitation Jimpi
informed me that her mother Biju Saikia compelled her and Dimpi Saikia to
establish physical relation with Kumud Chandra Borgohain; that she also stated
that due to skin problem of Dimpi, her mother sent Dimpi with accused Kumud to
Jorhat for medical consultation; and kept Dimpi in a hotel and established physical
relation with Dimpi against her will; that Jimpi also stated that accused Kumud has
taken her to Guwahati and attempted to establish physical relation with her but
failed due to resistance by Jimpi, that on knowing this, I asked her to inform the
matter to her brother and father." However she has stated that she came to know
from Dimpi about rape on her by accused Kumud.
This witness also did not state that "After about a month of reporting the
matter to me, when accused came to the house of Dimpi and Jimpi, in presence of
their brother, Jimpi misbehaved Kumud and there after the twins reported the
incident happened with them to their brother. While brother of Dimpi tried to
assault Kumud, Biju Saikia saved Kumud and thereafter they both flee away. All
above was reported to me by Jimpi. She also stated me that while keeping her in
hotel, Kumud has disclosed that Dimpi was his daughter by changing his title."
Witness Pranab Dutta in his statement recorded u/s 161 Cr.P.C. did not state
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that "on going to his residence, Bibhuti Saikia by informing me that Kumud Saikia
by taking his sisters Jimpi and Dimpi to Dibrugarh and Jorhat, committed misdeeds
with them and asked me as to what he should do with accused Kumud; that
Kumud Flee away with the help of Biju Saikia; that Dimpi and Jimpi told me and
others that Kumud Bogohain by taking them to hotels after showing them
pornography, made a physical relation with them."
Witness Ashim Dutta in his statement recorded u/s 161 Cr.P.C. did not state
that "On the date of filing FIR, one of the sisters on finding me on road,
complained that Sri Kumud Chandra Borgohain by taking her to Dibrugarh or
Jorhat in the name of consultation to skin doctor; that her mother forced both the
twin sisters to go with Sri Kumud Chandra Borgohain and on their reluctance, she
used to scold them; that a meeting was held and several villagers gathered at
Perabhari L.P. School and after discussion, resolved to take the matter to police;
that there was a quarrel in the house of Biju Saikia on this matter; that I learnt
that accused Kumud had to flee away by leaving behind his scooty."
[22] PW-10 Sri Biraj Kumar Das was the O/C of Namti Police Station who took over the
case diary from PW-9 and on completion of investigation, submitted the charge sheet
against the accused persons.
[23] Smti. Queen Dutta who was examined as court witness No. 1 (CW-1) has stated
that the victims 'D' and 'J' were known to her as classmates and they studied together at
the Namti Girls School up to Class-IX. The accused persons were known to her and she
had heard from the villagers that a case has been lodged by 'J' and 'D' though she did not
know against whom the case was filed. She came to know from the villagers that Police
had came to the house of 'D' and 'J' that someone was arrested from their house. At the
time of lodging of the case, she herself, 'D' and 'J' were all studying in Class-IX.
Thereafter, she did not meet 'D' and 'J'. In her cross-examination, the CW-1 has also
stated that she got married about two years ago as she had failed in class examination
and thereafter, left her study.
[24] Mr. Farid Islam Hazarika was examined as CW-2. This witness has deposed that he
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knew the accused A-2 as her daughter was a student of a section of a project but he did
not know accused A-1. Last year, he was the project coordinator of NGO Naba Udit
Samaj. Both 'D' and 'J' were the students under the aforesaid project. He had heard that
there was commotion at Namti Police Station last year and had also heard that 'J' had
lodged a case at the Police Station as she was sexually harassed. But he did not know
who had sexually harassed one of them. After hearing the matter he went to the house of
'D' and 'J' to know about the incident but they were not found in their house as by that
time, they had gone to their maternal uncle's house. He came to know from the villagers
that the mother of 'D' and 'J' was arrested and sent to jail. As he was sent somewhere
else in connection with his duties, he did not meet 'J' or 'D'. During cross-examination,
CW-2 has replied that he had heard about the matter only after lodging of the FIR. 'J' and
'D' did not inform the NGO about the alleged matter.
[25] In his statement recorded under Section 313 Cr.P.C., the A-1 has stated in reply to
question No. 17 that Bibhuti (PW-3) used to take money from him sometimes and on that
day, he had demanded Rs. 7,00,000/- from him and when he refused, the altercation
started. Then his mother had saved him. In reply to question No. 18, A-1 has stated that
he did not go out of the house from the backside but went out from the front side.
[26] A-2 had also stated in her statement recorded under Section 313 Cr.P.C. that her
husband used to borrow money from A-1. In reply to question No. 44 the A-2 has stated
that the A-1 had installed electric connection in their house by hooking as he was an
electrician. So villagers did not like him.
[27] On the basis of the evidence available on record and after taking note of the
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statement made by the accused persons under Section 313 Cr.P.C. the learned trial court
had held that the charge brought against both the accused persons stood proved. The
relevant observations of the learned court below leading to the above conclusion appears
in paragraph 41 of the judgment, which is reproduced herein-below for ready reference:
"41. In the instant case if we carefully examine the evidence on record and
the statements made by the accused persons during their examination under
section 313 Cr.P.C. it becomes clear that the accused Kumud Ch. Borgohain made
his entry into the house of the victims through his acts of helping the family by
illegally providing electric connection by hooking and also by providing financial
help. The father of the victim girls used to remain out of his house of his business.
The brother of the victim girls is a driver by profession and so naturally he also
used to remain outside in connection with his job. The accused took this
opportunity and initially developed an illicit relation with the mother of the victim
girls. Then his eyes fell on the minor victim girls. By the time the mother of the
victim girls was totally under his dominion. The accused took the opportunity and
materialized his vicious design and the mother of the victim girls knowingly and
intentionally aided the accused in fulfilling his lust by sending her minor daughters
with him to various places in spite of their reluctance. So the mother of the victim
girls abetted the accused Kumud Ch. Borgohain in commission of the crime."
[28] As noted above, the conviction of both the appellants is primarily based on the
evidence of victim girls, i.e. PWs- 1 and 2 and also the fact that there was evidence to
show that the mother of the victims, i.e. A-2 had maintained an illicit relationship with the
accused A-1. Law is well settled that in a proceeding initiated under Section 4 of the
POCSO Act conviction can be based solely on the version of the prosecutrix if the same is
found to be credible. Therefore, it would be essential for this Court to examine as to
whether the version of the PW-1 and 2 is trustworthy and inspires the confidence of the
Court.
[29] On a careful reading of the evidence adduced by PW-1, we find that the witness
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has made some broad accusation against the accused persons by stating that on the
insistence of her mother, she had accompanied the A-1 to Jorhat and Dibrugarh on a
number of occasions where she stayed in a hotel and it was at that time, the A-1 had
committed rape on her inside the hotel room. However, the PW-1 has neither mentioned
about the date of her visit to Jorhat or Dibrugarh nor has she provided the name of the
hotel in which she had stayed. There is also no evidence produced by the PW-1 to show
that during the relevant period of time she was suffering from any skin ailments or that
she was ever examined by a skin Doctor.
[30] Likewise, PW-2, i.e. the other victim has also not given any particulars as regards
the date and the number of occasions when she had gone to Guwahati along with the
accused A-1, who had allegedly committed rape on her. PW-2 had stated that the A-1
used to commit rape on 'D', i.e. PW-1 and though she had informed the matter to her
mother she disbelieved them. However, according to PW-1, the accused had committed
rape on her as well. PW-2 had also stated that A-1 used to visit their residence since the
year 2006 and since last 6/7 years her mother had asked the A-1 to sleep with them.
However, from the evidence of PW-9 it has come out that PWs- 1 and 2 did not say so
before the I/O while recording their statements under Section 161 Cr.P.C. Rather, it can be
seen that there is material improvement in their deposition which has been duly proved
by the I/O.
[31] We also find from the testimonies of the PWs- 1 and 2 that the A-1 has been
coming to their house since 2006 and their mother has been asking them to sleep with A-
1 since past several years. But the victims had never informed the matter to anyone.
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However, they have spoken to PWs- 5 and 6 only after the incident which took place on
30-09-2017. Since the victims could have to spoken to others about the incident after 30-
09-2017, there is no explanation as to why they remained silent for so long even if their
mother did not pay any heed to them.
[32] PW-3, who is the brother of the victim girls, has clearly deposed that he did not see
the A-1 staying in their house at night nor did he see A-1 taking his sisters to Guwahati,
Jorhat or Dibruarh. He had also not seen his sisters going with the A-1 to Guwahati,
Jorhat and Dibrugarh. The evidence of PW-3 also indicates that PW-2 used to live in the
same house along with PWs- 1 and 3 and their parents. However, the evidence of PW-3
clearly contradicts the version of the PWs-1 and 2 insofar as the stay of the A-1 in their
house at night and the A-1 taking the victim girls to Jorhat, Dibrugarh and Guwahati is
concerned. Moreover from the evidence of PW-9 the contradictions in the evidence of PW-
3 also stood established. The I/O PW-9 had also proved the contradiction in the
statements of PWs- 5, 6 and 7 which would be apparent from the cross-examination of
the I/O.
[33] It is evident from the materials on record that the father of the victim girls, i.e. PW-
4 had lodged an ejahar before the O/C, Namti Police Station on 29-09-2017 stating that
the A-1 had taken away his wife, i.e. A-2 at around 03:00 p.m. on 29-09-2017. A-1 had
visited their house for last 10/12 years and on returning home, he came to know about
the incident from his children. According to PW-4 he came to know that the accused had
tried to commit bad act on them. Based on the ejahar dated 29-09-2017, Namti P.S. Case
No. 20/2017 was registered under Section 366 IPC against the accused A-1 but eventually
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on completion of investigation, the I/O had submitted Final Report in the aforesaid police
case. In the final report, it has been mentioned that the proceedings had been initiated
due to mistake of fact. What is surprising to note herein that in his deposition before the
court, the PW-4 has not mentioned about the ejahar dated 29-09-2017 and the
registration of Namti P.S. Case No. 20/2017 on the basis of said ejahar.
[34] We have noticed that in the ejahar filed on 29-09-2017, the PW-4 has not made
any direct allegation of sexual assault committed on his daughters by the accused. As a
matter of fact the PW-4 has ever denied of having stated before the police that he had
lodged a FIR on the previous day. Even his son, i.e. PW-3 has denied that on the previous
day, i.e. on 29-09-2017 his father has lodged an FIR against the A-1 for kidnapping his
mother from their house. What is to be noted herein is that as per the testimonies of
PWs- 1 and 2, they have informed their brother PW-3 about the sexual harassment and
misbehavior of A-1 only on 30-09-2017 and before that they had spoken about the same
only to their mother. But the ejahar dated 29-09-2017 lodged by the PW-4 also mentioned
about the A-1 trying to commit bad things with his daughters. There is, however, no
evidence to indicate as to who had informed the father of the victims about the incident
on 29-09-2017.
[35] We have also noticed that according to the PWs-1 and 2 the incident of alleged
rape took place over the period of 6/7 years prior to the lodging of the ejahar and
according to the PW-1, the A-1 had taken her to Dibrugarh in the year 2016. According to
PW-2, the A-1 had taken her to Guwahati in the year 2016. However, the complaint was
lodged only on 30-09-2017 i.e. after a delay of more than a year and there is not even an
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iota of explanation as regards the delay in lodging the ejahar. The unexplained delay in
lodging the ejahar, in our opinion, would have a fatal consequence in the prosecution
case, in the facts and circumstances of this case.
[36] PW-2 has deposed that she had informed about the A-1 committing rape on 'D' to
the NGO Secretary (CW-2) but in his deposition the CW-2 has denied of having any
knowledge about the incident. Rather he has stated that he had heard about the matter
only after the lodging of the FIR but the victim girls 'J' and 'D' did not inform the NGO
about the same. According to the PW-2 the CW-1 was aware of the whole incident but
from the evidence of CW-1 what transpires is that she did not support the aforesaid claim
of the PW-1.
[37] The attention of this Court has also been invited to the fact that the evidence-in-
chief of the PWs- 1 and 2 were recorded initially on 10-01-2018 and thereafter, their
further examination-in-chief was deferred till 05-04-2018 on which date, the PWs- 1 and 2
had appeared for their re-examination and exhibited their birth certificate, which
mentions 17-06-1999 as their date of birth. In between, evidence of other witness, viz.
PWs- 3 and 4 had been recorded. There is no explanation as to why the evidence of PWs-
1 and 2 was recorded after a break of nearly three months.
[38] As mentioned above, the medical evidence did not support the prosecution claim
but on the contrary the same goes to show that there was no sign of any sexual assault
on both the victim girls.
[39] According to PW-5 victim 'J' had told her that the attempt made by the A-1 to
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establish physical relationship with her had failed due to the resistance offered by her.
The aforesaid statement of PW-5 clearly contradicts the evidence of PW-2 who has stated
that the A-1 had sexually assaulted her at Guwahati.
[40] From the complaint dated 29-09-2017, it is apparent that the father of the victims,
i.e. PW-4 was at home on the previous day of the incident and he had also gone to the
police station in the evening of 30-09-2017 but in his deposition, he has only mentioned
about his wife going with the A-1 but did not even ask his children why they had come to
the police station.
[41] From a careful analysis of the evidence available on record, we find that there are
material contradictions/ omissions/ improvements in the version of the prosecution
witnesses which were duly proved by the I/O during his cross-examination. Coupled with
that, there is unexplained delay in lodging the ejahar and the witnesses PWs- 3 and 4 has
also disowned that on the previous day the PW-4 being the father of the victim girls had
lodged a complaint projecting a different version. Moreover, in the complaint dated 30-09-
2017, the said fact has also not been mentioned.
[42] We have also noted that A-1 had stated before the court that the incident was
triggered when the PW-3 had demanded a sum of Rs. 7,00,000/- from him which he has
received on retirement but when he has refused to pay the amount, the incident took
place. The aforesaid aspect of the matter has not at all been dealt with by the learned
trial court while convicting the accused persons.
[43] It is no doubt correct that the evidence available on record goes to show that there
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was an illicit relationship between the A-1 and A-2 and also the fact that the A-1 was a
frequent visitor to the shop and the house of the A-2. However, the evidence on record
does not establish the fact that he had taken either of the victim girls out to Jorhat,
Dibrugarh or Guwahati and had committed sexual assault on them or the fact that A-2,
being the mother of the victims, had any complicity in the matter. Rather we are of the
view that the testimony of the prosecution witnesses, more particularly, the evidence of
PWs- 1 to 6 are full of material contradiction and the prosecution story has not been
supported either by the medical evidence or by the CWs-1 and 2. We are also of the view
that the testimonies of PWs- 1 and 2 appear to be wholly untrustworthy and the same do
not inspire the confidence of this Court.
[44] Sections 29 and 30 of the POCSO Act permit the court to draw presumption as to
certain offences and also culpable mental state. However, from the evaluation of the
evidence brought on record, we are of the unhesitant opinion that the prosecution has
failed to prima facie establish the charge brought against the accused persons under
Section 6 of the POCSO Act read with Section 376(2)(n) of the IPC. As such the question
of drawing presumption against the accused under Section 29 and 30 of the POCSO Act,
2012 does not arise in the facts and circumstances of the case.
Having regard to the peculiar facts and circumstances of the present case, we find
sufficient force in the submission of learned counsel for the appellants that the accused
persons have been falsely implicated in the matter due to the illicit relationship between
the A-1 and A-2 and also on refusal of the A-1 to pay the amount demanded by the
brother of the victims.
Page No.# 30/30
The conviction of the A-1 under Section 6 of the POCSO Act read with Section
376(2)(n) of the IPC is hereby set aside and the accused person (A-1) is acquitted.
Likewise, the conviction of the A-2 under Section 17 read with Section 6 of the POCSO Act
and under Section 109 read with Section 376(2)(n) of the IPC is also set aside and the
accused person (A-2) is acquitted.
We are informed that both the accused persons are presently in the jail. We,
therefore, direct that unless the custodial detention of the accused persons/ appellants
are required in connection with any other proceeding, they be forthwith released from jail.
Registry to send back the LCR.
Before parting with the record, we wish to place our appreciation on record as
regards the services rendered by Mr. Mrinmoy Dutta, learned amicus curiae appearing for
the A-2 and direct the Registry to make available to him just remuneration as per the
notified fee structure applicable to the amicus curiae.
JUDGE JUDGE
GS
Comparing Assistant
