Gauhati High Court
Page No.# 1/12 vs The State Of Assam And Anr on 26 August, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/12
GAHC010196442023
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./329/2023
RATUL BHARALI AND ANR.
S/O RAMLAL BHARALI,
R/O JORBIL GAON,
P.S.- GARMUR, DIST.- MAJULI, ASSAM.
2: MANASH BHARALI @ KON BHARALI
S/O KANBAP BHARALI
R/O JORBIL GAON
P.S.- GARMUR
DIST.- MAJULI
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:BITUL BANIA
S/O KUKHESWAR BANIA
VILL.- SONAPUR CHAPORI
JORBEEL
P.S.- GARMUR
DIST.- MAJULI
ASSAM
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the accused appellants : Ms. T. Som ..... Advocate.
For the respondent no.1 : Ms. A. Begum. ..... Add. P.P.
For the respondent no.2 : Ms. S. Khataniar. .....Advocate.
Page No.# 2/12
Date of hearing : 21.08.2025
Date of Judgment : 26.08.2025
JUDGMENT & ORDER (CAV)
(M. Zothankhuma, J)
1. Heard Ms. T. Som, learned counsel for the appellants. Also heard Ms. A.
Begum, learned Additional Public Prosecutor for the respondent no.1 and Ms. S.
Khataniar, learned counsel for the respondent no.2.
2. This is an appeal against the judgment dated 28.07.2023 passed by the
learned Special Judge, Majuli in Special Case No.47/2023, by which the
appellants have been convicted under Section 6 of the POCSO Act, 2012, for
raping the victim, who was 15 years old.
3. The prosecution case in brief is that an FIR dated 28.01.2023 was
submitted by the informant (PW-1) to the Officer-in-Charge of the Garamur
Police Station, to the effect that at around 5 to 6 a.m on 28.01.2023, his sister
aged 13 years took the goats to the field. At the same time, the appellants had
also taken their cows near the field where his sister had taken their goats. As
there was fog at that time, it was not possible to see any one from a distance.
Taking advantage of the fog, the accused persons raped his sister. About the
same time, PW-6 who was the son of the informant's father's elder brother also
went to the same place with his cows. PW-6 then witnessed the appellants
committing rape, due to which, he raised a hue and cry. The appellants then
Page No.# 3/12
fled away from the scene. PW-6 rushed back home to inform the family
members of the victim. Thereafter, the family members of the victim went to the
place of occurrence and rescued the victim, who was admitted in Garamur Civil
Hospital. However, doctors therein sent her to Jorhat.
4. Pursuant to the FIR, Garamur P.S. Case No.2/2023 under Section 376-DA
IPC read with Section 6 of the POCSO Act was registered.
5. After investigation of the case had been completed and medical
examination of the victim had been done, the Investigating Officer (IO)
submitted a charge-sheet against the appellants, having found a prima facie
case under Section 376-DA IPC read with Section 6 of the POCSO Act against
them.
6. The learned Trial Court thereafter framed Charge under Section 6 of the
POCSO Act against the appellants, to which they pleaded not guilty and claimed
to be tried.
7. The learned Trial Court thereafter examined as many as 12 Prosecution
Witnesses (PWs) and 3 Defence Witnesses (DWs). After examination of the
appellants under Section 313 Cr.P.C, wherein their only explanation to the
evidence adduced against them was "I am innocent", the learned Trial Court
came to a finding that the appellants were guilty of having committed the
offence of raping the victim. Consequently, the appellants were convicted under
Section 6 of the POCSO Act and sentenced to undergo rigorous imprisonment
Page No.# 4/12
for life with a fine of Rs.20,000/- each, in default of fine, to suffer simple
imprisonment for 2 (two) months.
8. The learned counsel for the appellants submits that the evidence of the
victim who has alleged that she had been gang raped by the appellants cannot
be the basis for convicting the appellants. She submits that there being no
corroboration of the evidence of the victim by any other witnesses, the
conviction of the appellants by the learned Trial Court on the sole evidence of
the Prosecutrix is not sustainable. She also submits that the medical
examination of the victim by the doctor shows that hymen of the victim had old
tears present at 3, 6, 9 O'clock positions. The Medical examination report dated
29.01.2023 having shown that the victim's hymen was having old tears, there
was no proof that the appellants had gang raped the victim the previous day.
9. The Additional Public Prosecutor and the Legal Aid Counsel for the
respondent no.2 submit that the statement made by the victim under Section
164 Cr.P.C corroborates the evidence given by the victim during trial. Further,
the testimony of the victim inspires confidence, given the fact that no stand has
been taken by the appellants that there was enmity between the victim or her
family with the appellants. As such, there was no reason for the victim to have
made a false accusation against the appellants. They accordingly pray that the
impugned judgment passed by the learned Trial Court should not be interfered
with.
10. We have heard the learned counsels for the parties.
Page No.# 5/12
11. The evidence of the victim (PW-4) is to the effect that she knew the
appellants. On the day of occurrence when she went to tether the goats in the
grazing fields, the appellants had also come to tether their cattle in the said
field. The appellants then caught hold of the victim and dragged her near a
Jujube (Bogori) tree near a pond. Thereafter, Kon @ Manash Bharali raped her
while Ratul Bharali held her tight. Thereafter Ratul Bharali raped her, while Kon
@ Manash Bharali held her tight. After raping her, both the appellants fled away.
PW-4 further stated that she became unconscious for some-time and as one of
her cousin brother saw the occurrence, her parents were informed, who brought
her to her house.
In her cross-examination, PW-4 stated that the appellant Ratul Bharali was
her cousin brother and other accused was a co-villager. She also denied the
suggestion that she had been forced or directed to speak falsely against the
appellants or give false evidence against them.
12. The evidence of PW-6 is to the effect that he knew the informant (PW-1),
the victim and the appellants. On the date of occurrence, when he went to
tether his cattle in the field, he saw the victim girl with her goats. Thereafter,
while walking along with the cattle he saw the appellants Ratul Bharali raping
the victim. The other appellant Kon @ Manash Bharali, on seeing PW-6, fled
from the place of occurrence. He thereafter went to the house of the victim and
told the father and mother of the victim as to what he had seen. PW-6 then
accompanied the father and mother of the victim and showed them their
daughter, who was lying in the field. The mother and father then brought the
victim home. PW-6 was then taken before a Magistrate, where PW-6 gave his
Page No.# 6/12
statement under Section 164 Cr.P.C.
13. The evidence of PW-10, who is the Doctor who had examined the victim,
is to the effect that there were old tears present at the 3, 6, 9 O'clock positions
in the hymen of the victim and redness was present. He also noticed injuries on
the victim which were as follows :
"Injuries:
1. Contusions (bite marks) of size 4 cm x 3 cm present on left face, 4
cm away from left angle of mouth.
2. Contusions of size 10 cm x 2 cm present left lateral aspect of lower
part of left thigh, 5 cm above from left knee joint.
Both injuries were red in color.
Ext.P-8 is the medical examination report and Ext.P-8(1) is my signature
therein."
The Doctor also found redness present in the inner parts of the thighs of the
victim and in the vulva.
In his cross-examination, PW-10 stated that the injury on the victim was
simple in nature and fresh. He also stated that it was difficult to assume how
the thigh injuries had occurred near the private parts of the victim. He also
found injuries in the genital area of the victim. He also found manipulation on
the vagina of the victim.
14. The evidence PW-11, who is the Investigating Officer (IO) is to the effect
that he registered a case on the basis of FIR dated 28/01/2023 submitted by
Page No.# 7/12
PW-1. He initially assigned one S.I. Madhurjya Gogoi to visit the Place of
Occurrence (PO), record the statement of the victim girl, seize the clothes of the
victim girl and sent the victim for medical examination. The victim was also
taken before a Magistrate for recording her statement under section 164 Cr.P.C.
He arrested the appellants and filed a charge sheet under section 376 DAS IPC
read with section 6 of the POCSO Act against the appellants.
15. In his cross examination, PW-11 stated that he had received the
radiological report, where the age of the victim was shown to be above 18 years
and below 19 years. However, the School Certificate revealed that her date of
birth was 08/05/2008 i.e. about 15 years and hence, he did not annex the
radiological report with the charge sheet. He further stated in his cross
examination that as per the report, there was no sexual intercourse, but was
some fresh mark of struggle was mentioned. He could not say whether the date
of birth could be reduced or not. He however stated that during the course of
investigation, the appellants confessed that they had raped the victim.
16. The appellants Ratul Bharali and Manash Bharali gave their evidence as
DW-1 and DW-2, wherein, they had stated that they knew the informant and
the victim girl. Their basic case was that they did not know anything about the
rape that had occurred and that they had tethered their cattle and returned
back. While coming back, one Bhaba Bharali had seen them. Further, they had
seen one boy, namely, Karuna Bharali talking to the victim girl. Karuna Bharali
was their enemy and that is why he had falsely implicated them in the present
case. The evidence of the appellants as DW-1 & 2 is basically to the effect that
a false case had been made against them by one Karuna Bharali. However,
Page No.# 8/12
there is no Karuna Bharali among the prosecution witnesses and it appears that
DWs-1 & 2 are speaking of PW-6 "Karuna Bania". The appellants case is that a
false case had been foisted upon them by Karuna Bharali (Karuna Bania). There
is nothing stated against the victim or her family by the appellants in their
evidence as DW-1 & DW-2. In fact, in his cross examination, DW-2 has stated
that he had no enmity with the family of the victim girl. In view of the above,
there is no reason for the victim girl to have made a false complaint against the
appellants. In fact, it is not the case of the appellants in their testimonies, as
DW-1 and DW-2, that a false case had been foisted upon them by the victim
girl.
17. The evidence of DW-3 (Sri Bhaba Bonia) is to the effect that he knew the
informant, the victim and the appellants, who were his nephew. On the date of
the occurrence, he went to the grazing ground to tether his cattle. He saw
Karuna, the victim girl and both the accused persons there. Both the accused
persons thereafter returned with him to their respective houses. However, when
he returned back, he heard that the accused persons (appellants) had been
arrested by the Police. He also stated that he tethered his cattle far away from
the place of occurrence. On considering the evidence of DW-1 and DW-2, we
are not convinced with the truthfulness of the same. Though DW-1 and DW-2
have denied raping the victim, the evidence of DW-3, which is their alibi, shows
that DW-3 had tethered his cattle far away from the place of occurrence. Thus
DW-3 could have met up with the appellants only after the appellants had raped
the victim. The above could be due to PW-6 coming later to the place of
occurrence, i.e. after the appellant Manash Bharali had raped the victim. It
should also be remembered that PW-6 had not seen Manash Bharali raping the
Page No.# 9/12
victim, but had seen Ratul Bharali raping the victim. Further, as per the
testimony of the victim, Ratul Bharali had raped her, after Manash Bharali had
raped her.
18. On considering the evidence of the victim girl vis-à-vis her statement
made under section 164 Cr.P.C., we are of the view that her statement made
under Section 164 Cr.P.C the testimony of the victim. Further, the statement of
PW-6 under section 164 Cr.P.C and his testimony given before the Trial Court
also corroborates the evidence given by the victim.
19. In the case of Dalip Singh Vs. State of Punjab [AIR 1953 SC 364] ,
the Supreme Court has held that an witness is normally to be considered
independent unless he/she springs from sources which are likely to be tainted
and that usually means unless the witness has cause, such as enmity against
the accused to wish to implicate him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely implicate an innocent person. It is
true, when feelings run high and there is personal cause of enmity that there is
tendency to drag an innocent person against whom a witness has a grudge
along with the guilty but the foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure guarantee
of truth. In the present case, when there is no animus shown or proved by the
appellants towards the victim and vice versa, there was no reason for the victim
to implicate the appellants, especially when one of them was her cousin. There
is nothing to show that there was any enmity between the appellants and the
family of the victim also.
Page No.# 10/12
20. We are of the view that the statements made by the victim under section
164 Cr.P.C. and her testimony, which is further corroborated by the evidence of
PW-6 and his statement made under section 164 Cr.P.C, proves that the
appellants had gang-raped the victim. Though the medical examination of the
victim by the Doctor is advisory in nature, we are of the view that the medical
evidence also corroborates the testimony of the victim.
21. In the case of Narendra Kumar Vs. State (NCT of Delhi) [(2012) 7
SCC 171], the Supreme Court has held that once the statement of the
prosecutrix inspires confidence and is accepted by the Court as such, conviction
can be based only on the solitary evidence of the prosecutrix and no
corroboration would be required unless there are compelling reasons, which
necessitates the Court for corroboration of her statement. Corroboration of
testimony of the prosecutrix, as a condition for judicial reliance is not a
requirement of law, but a guidance of prudence under the given facts and
circumstances. Minor contradictions or insignificant discrepancies should not be
a ground for throwing out an otherwise reliable prosecution case.
22. With regard to the submission of the appellants' counsel that the medical
report did not support the case of the prosecution that rape had been
committed, it would be profitable to refer to the judgement of the Supreme
Court in the case of B.C. Deva V@ Dyava Vs. State of Karnataka [(2007)
12 SCC 122] wherein, it had been held by the Supreme Court that though the
report of the Gynecologist pertaining to the medical examination of the
prosecutrix did not disclose any evidence of sexual intercourse, the oral
testimony of the prosecutrix which is found to be cogent, reliable, convincing
and trustworthy, has to be accepted, even in the absence of medical evidence.
Page No.# 11/12
23. With regard to the evidence of the IO (PW-11) that the radiological report
was not annexed to the charge sheet in view of the School Certificate, which
revealed the date of birth of the victim to be 08/05/2008, we find that the
appellants had not made an issue with regard to the age of the victim. Suffice
to say that in terms of section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015, if there is a doubt about a person's age, the first age
determination test would be to rely upon the Date of Birth Certificate from the
School or a Matriculation or equivalent certificate from the relevant Board.
Secondly, if the above is unavailable, the Birth Certificate issued by the
Municipal Authority or the Panchayat is to be considered for determining age. If
that is also un-available, an Ossification test may be conducted. In essence,
section 94 prioritizes documentary evidence like the Date of Birth Certificate
from the School. In the present case, the Date of Birth Certificate from the
School shows the victim to have been born on 08/05/2008, which would mean
that she was about 15 years of age at the time of the incident. As the victim
had been gang-raped by the two appellants, the appellants were rightly charged
and convicted for the offence under section 6 of the POCSO Act, 2012.
24. On considering the fact that the victim's testimony regarding the gang-
rape committed upon her by the appellants has been corroborated by her
statement under section 164 Cr.P.C. and the evidence of PW-6 and PW-10,
besides finding the victim's testimony to be cogent, convincing and trust worthy,
we do not find any ground to interfere with the impugned judgement and order
passed by the learned Trial Court.
Page No.# 12/12
25. The appeal is accordingly dismissed.
26. Send back the TCR.
27. In appreciation of the assistance provide by the learned Legal Aid Counsel
for the respondent no.2, her fee should be paid by the Assam State Legal
Services authority.
JUDGE JUDGE
Comparing Assistant
