Page No.# 1/2 vs The State Of Assam And Anr
2025 Latest Caselaw 383 Gua

Gauhati High Court

Page No.# 1/2 vs The State Of Assam And Anr on 9 May, 2025

                                                                           Page No.# 1/21

GAHC010117232023




                                                                     2025:GAU-AS:5736

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.A./220/2023

            DILIP ROY
            S/O LATE KISHORE ROY, VILL.- PATSALA NAWHALI, P.O.- THOMNA, P.S.-
            BORBORI, DIST.- NALBARI, ASSAM, PIN- 781377.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY P.P., ASSAM.

            2:AMAR NEOG
             S/O LATE SRI TULSI NEOG
            VILL.- KALOOGAON GAYAN GAON
             P.O.- KALOOGAON
             P.S.- SIVASAGAR
             DIST.- SIVASAGAR
            ASSAM
             PIN- 785666

Advocate for the Petitioner   : MR. B BARMAN, MRS P P BORAH,MR. P K DAS

Advocate for the Respondent : PP, ASSAM,

BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

JUDGEMENT AND ORDER (CAV)

Date : 09-05-2025

This appeal is preferred to set at naught the judgment and order dated 28.02.2023,

passed by the learned Additional Sessions Judge cum Special Judge (POSCO), Sivasagar in Page No.# 2/21

connection with Special (POCSO) Case No. 36/2019, convicting Sri Dilip Roy (hereinafter after

the accused or the appellant) under Section 354 of the Indian Penal Code (IPC for short) and

sentencing him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5000

with default stipulation. The appellant was acquitted from charges under section 8 of the

Protection of Children from Sexual Offences Act, 2012, (POSCO Act for short).

2. The allegation against the appellant is that he committed sexual harassment on the

victim 'X' (name withheld). The 15 year old victim was suffering from some ailment and the

appellant was summoned to the informant's house for her treatment as the appellant is a

sorcerer. On 21.08.2018, the appellant went to the informant's house and later, the informant

learnt that the appellant committed sexual harassment on his victim sister. The informant will

hereinafter be referred to as 'Y'. When the appellant again came to the informant's house, he

was confronted by the informant and then the appellant tried to escape but was apprehended

by the local public. As a result, an Ejahar (FIR) was lodged at Joysagar Outpost and GDE

number 469 dated 23.08.2018 was registered and was forwarded to Sivasagar P.S. The FIR

was registered as Sivasagar P.S. Case No. 837/2018 under Section 8 of POSCO Act read with

Section 376 of IPC. Investigation commenced and on conclusion of investigation, charge

sheet was laid under section 354 of IPC read with section 8 of POSCO Act. With

commencement of trial, a formal charge under section 354 of IPC read with section 8 of

POSCO Act was framed and read over and explained to the appellant who abjured his guilt

and claimed innocence. To substantiate its stance, the prosecution adduced the evidence of

eight witnesses including the Investigating Officer (IO for short) and the Medical Officer (MO

for short). On the incriminating evidence projected by the prosecution through the witnesses,

several questions were asked to the appellant under Section 313 of the Criminal Code of Page No.# 3/21

Procedure (CrPC for short) and the plea of the appellant was of total denial. The appellant

adduced the evidence of one witness in defence.

Arguments for the appellant

3. It is submitted on behalf of the appellant that the FIR has been lodged by the informant

but his deposition is contradictory to the contents of the FIR. It has been mentioned in the

FIR that the informant learnt about the incident on the following day whereas PW-1 has

deposed that family members learnt about the incident on the same day. It is mentioned in

the FIR that the appellant was handed over to the police on the same day whereas, on the

contrary, it is deposed that the appellant was handed over to the police on the next day. It is

further submitted that the age of the victim has been contradicted and so, the appellant was

acquitted from the charges under the POCSO Act and convicted under the IPC. The other

dissimilarity is that PW-1 has stated that the victim was crying which is contradictory to the

contents of the FIR. It is further argued that she informed about the incident to her sister,

PW-3 at dinner time whereas her sister PW-3 has deposed that she learnt about the incident

on the following day.

4. The victim's statement under Section164 of the CrPC is not substantiated by her

deposition in the Court. PW-1, 3 & 4 have given different dates relating to the time when the

appellant was handed over to the police. On the contrary, the IO deposed as PW-8 that the

FIR was lodged on 23.08.2018, which is not plausible as the incident occurred on 21.08.2018,

and according to the version of the witnesses and the FIR, the appellant was handed over to

the police on 22.08.2018. The medical report does not support the prosecution case.

5. It is submitted that in Para 44 of the impugned judgment, the learned Trial Court has Page No.# 4/21

relied on the decision of the Hon'ble Supreme Court in the case of Appabhai and Anna

Dharmasa Vs. The State of Gujarat reported in AIR 1988 SC 696 and in the case of

Bhavarda , Bhogin Bhai Hirji Bhai Vs. The State of Gujarat.

6. It is submitted that the ratio of the decisions is not applicable in this case as the present

victim is not 10 years old, whereas the victim in the aforementioned decisions were minors.

The victim in this case is not minor and she has falsely quoted her age. This indicates that

the victim is not a reliable witness. It is further submitted that the FIR was lodged on

21.08.2018, whereas the IO, PW-8 has deposed that the FIR was registered on 23.08.2018,

which implies that the investigation commenced before the lodgment of the FIR, which

indicates the lack of probative value of the FIR.

7. As the investigation commenced before GD entry was registered and the FIR was

lodged, trial gets vitiated. It is further submitted that there was negligence on the part of the

IO.

8. It is further contended that the Trial Court has ignored the fact that the victim felt better

after treatment by the appellant and has convicted the appellant with a harsh sentence. The

appellant's son committed suicide owing to poverty as the appellant was denied bail and now

the appellant's wife has become homeless and vagabond and has resorted to begging. The

appellant's entire family has been affected by this harsh sentence. The appellant has already

been behind bars for two years and the worries and woes of the appellant may be allayed, if

this Court modifies the sentence to the period of detention already undergone by the

appellant, in the event the appeal is dismissed

9. It is further argued that investigation commenced even before registration of the GD Page No.# 5/21

entry or the FIR, which vitiates the entire trial. The victim's elder brother is expected to know

the victim's age, but he has given the victim's age as 15 (Fifteen) years, which indicates his

motive to get the appellant booked under a heinous offence.

10. It is not plausible that the appellant who was a sorcerer and who was providing

ritualistic treatment to the victim in presence of her family members, would commit such an

offence. There appears to be no mens rea or motive on the part of the appellant as the victim

was taken to her father's room and other family members were waiting outside the room

while the treatment was being provided to the victim.

11. There are contradictions relating to the time of the incident as PW-2 has stated that the

incident took place at about 4.00-5.00 PM during the daytime whereas on the contrary, PW-1

has stated that the incident took place in the evening of the 21.08.2018. There are

contradictions in the evidence of the witnesses as to the date when the appellant was handed

over to the police after being apprehended in connection with this case.

12. It is further submitted that the medical report did not substantiate the evidence of the

witnesses. The victim cannot be considered to be a sterling witness. It is further emphasized

through the argument that in her statement under Section 164 of CrPC, the victim has stated

that she did not inform anyone except her elder sister about the incident. Due to the

contradictions galore, the appellant deserves a benefit of doubt.

Arguments for the State :-

13. On the contrary, learned Additional Public Prosecutor Mr. D. Das and learned Additional

Public Prosecutor Mr. P. Borthakur, laid stress in their arguments that the FIR was lodged at

12:30 AM midnight on 23.08.2018. The appellant was brought to the police station by the Page No.# 6/21

people in an injured condition and as he was injured, he was sent for medical treatment and

the resultant lodgment of the FIR was thus at 12.30 AM on 23.08.2018, which implies that it

was lodged in the intervening night of 22.08.2018 and 23.08.2018. The victim was

immediately sent for medical examination at 12.40 PM on the 23 rd, whereas the appellant

was immediately examined after the lodgment of the FIR on 23.08.2018. Thus, the

submission of the learned counsel for the appellant that investigation commenced before the

lodgment of FIR, is not correct.

Trial Court Decision :-

14. It has been held by the learned Trial Court that the evidence of PW-2, PW-3, PW-4, PW-

5 and PW-6 clearly depicts that when the victim (X) informed her sister about the incident,

she informed her brother Rupjyoti Neog over phone about the incident. Rupjyoti Neog, his

friend Biswajit and Dipjyoti also heard about the incident. Then Biswajit, PW-4, Dipjyoti Kalita,

PW-5 and Rupjyoti Neog, PW-6 went to the rented house of the appellant at Joysagar and

confronted him about the incident. When the appellant was about to flee he was pursued by

the above-mentioned witnesses and they caught him on the road and handed him over to the

police at Joysagar Outpost. The evidence of the IO also clearly depicts that the appellant was

assaulted by the public and he was forwarded for treatment. Thus, the evidence clearly

reveals that the appellant who was aware of his own misdeeds was apprehended by the

above-named witnesses on the road and handed over to the police as soon as he made an

attempt to flee. This has been clearly mentioned by the witness PW-4 that the appellant on

being confronted was about to flee. It has also been held by the learned Trial Court that the

evidence of the victim clearly reveals that the appellant outraged her modesty in a most Page No.# 7/21

deplorable manner with depravity. It has also been held by the learned Trial Court that the

evidence of the victim, PW-2, is corroborated by the evidence of the other witnesses,

primarily the evidence of PW-1, PW-3 and PW-6. The evidence of PW-1, PW-2, PW-3 and PW-

6 has been substantiated by the evidence of independent witnesses PW-4 and PW-5.

15. It has been held by the learned Trial Court that no mens rea could be ascribed as to

why a false case has been brought up against the appellant and why the appellant would be

roped with such deplorable allegations.

Findings :-

16. To decide this case in its proper perspective, the evidence is re-appreciated.

17. The informant Y deposed as PW-1 that the victim is his sister. He got acquainted with

the appellant at the time of the incident. About a year and a half ago from the date of the

incident, his sister 'X' was taking treatment from the appellant as she was suffering from

some ailment for a prolonged period. He was not at home at the time of the incident. He

returned home in the evening and learnt from his mother and elder sister, say - 'Z' that on

the day of the incident, the appellant came with his wife to their house for treatment of his

younger sister 'X' and the appellant entered into a room where his sister 'X' was alone, whilst

his wife remained outside the room. After some time, the appellant came out of the room and

left the residence. The victim also came out of the room after some time and she was in

tears. On being asked, the victim 'X' informed his mother and elder sister that the appellant

had groped her inappropriately (touched all over her body).

18. PW-1 further deposed that after departure of the appellant from their house, he along

with his brother Rupjyoti Neog and other three villagers pursued the appellant and Page No.# 8/21

apprehended him and handed him to the police at Joysagar Outpost. He then lodged the FIR

and proved the FIR as Exhibit 1 and his signature as Exhibit 1(1).

19. The victim 'X' has deposed as PW-2 that she also got acquainted with the appellant

from the time of the incident which took place about four years back. About 7-8 days prior to

the incident, the appellant's wife and the appellant were providing her some treatment for her

ailment. The appellant's wife provided her treatment for about 7-8 days and she used to

come to her sister's house where she (PW-2) used to stay at the time of the incident. The

appellant's wife provided her water and oil as a part of the treatment. On the day of the

incident, her health got deteriorated owing to her ailment and she was in her own house.

Then, her sister 'Z' asked the appellant's wife for treatment and the appellant's wife sent the

appellant to their house. At about 4.00 - 5.00 PM, the appellant came to their house and he

suggested that he would perform puja in their house. At that time, her mother 'J', her brother

Rupjyoti Neog, elder sister 'Z' and sister-in-law Rashmi Neog were all present in their house.

The appellant asked her brother Rupjoyti Neog to collect materials for puja to be performed

in her father's room. The appellant, who was a sorcerer, a witch doctor of some sort (Bej)

took her inside the room and asked her to sit on the bed. Then, the appellant kissed her on

her lips, lifted her sporting and undid her bra and groped her breasts and licked her nipples.

She tried to restrain the appellant but the appellant suggested that if he is restrained, she

would not recuperate. The appellant then insisted that he should repeat these acts for three

days and asked her (PW-2) not to divulge about the incident, lest she would not recuperate.

20. PW-2, victim further deposed that the appellant after groping her breasts, pulled down

her panties and asked her to stand and he poked his fingers into her vagina. She screamed,

not loudly though and the appellant asked her not to shout lest she would not recuperate.

Page No.# 9/21

The appellant continued with these acts for about half an hour, whilst the other family

members were in their rooms. PW-2 further deposed that her ailment was that she

felt shortness of breath and heaviness on her neck like someone pressing on her neck. After

the appellant left, she felt better, but thereafter, her symptoms recurred. On the same day, at

about 9.00 PM the appellant's wife enquired about her (victim X's) health from her sister 'Z'.

21. PW-2 further deposed that at the time of dinner she disclosed about the entire incident

to her sister 'Z' and she refused to be present in the puja on the following day. Her sister then

informed about the incident to the appellant's wife over phone and the appellant's wife also

informed her sister that the appellant has committed such offence with other victims also and

she asked her sister (Z) to inform the police about the incident. Her sister (Z) then informed

her mother and other family members about the incident. She (PW-2) also informed about

the incident to her mother and sister-in-law Rashmi Neog. After the lodgment of FIR, police

forwarded her for medical examination and for recording her statement. She has proved her

statement as Exhibit 2 and her signatures as Exhibit 2 (1) and 2 (2).

22. The argument of the learned counsel for the appellant that the evidence of PW-1 and

the evidence of PW2- are not similar relating to the time when PW-1 was informed about the

incident, can be safely brushed aside. PW-1 and PW-2 have clearly stated that PW-2 informed

her mother and her elder sister about the incident. It is true that PW-2 has stated that she

informed about the incident at dinner time but it cannot be presumed that the informant

learnt about the incident in the afternoon. The informant as PW-1 has deposed that after the

appellant left their house, he along with his brother and other three villagers chased him and

caught him on the road and handed him over to the police. It has to be borne in mind that Page No.# 10/21

the incident occurred on 21.08.2018 whereas the evidence of PW-1 and PW-2 was recorded

on 23.12.2021. A Photostat memory cannot be expected from the witnesses after three years

of the incident. The evidence of PW-1 clearly depicts that he returned home in the evening

and the evidence of PW-2 clearly depicts that the incident occurred after 4.00 - 5.00 PM.

23. The victim's elder sister 'Z' deposed as PW-3 that her sister, 'X' was suffering from

weakness owing to her ailment and they learnt that the appellant's wife used to provide

ritualistic treatment. Two days prior to the incident, her sister was provided ritualistic

treatment by the appellant's wife in their house. At the time of the incident, her sister was

staying in her (PW-3's) matrimonial home. After two days she took her sister back to her

parental home (victim's own house). The appellant's wife advised her not to take her sister

back to her house, lest danger would befall upon her sister and she suggested that her

husband is also a sorcerer and would be able to provide ritualistic treatment to her sister 'X'.

24. PW-3 further deposed that at about 8.00 PM, the appellant went to her parental home

and handed over a 'tabeez' to her sister (X). Her brother Rupjyoti Neog went to purchase the

puja articles. The appellant then started his puja at about 8:30 PM. After about 30-45

minutes, the appellant came out of the room and suggested that he would repeat the same

puja for about two days and he went out while she (PW-3) returned to her house. Her sister

was still in her room when she returned to her house. On the following day, at about 10:30

AM, she called the appellant's wife over phone to enquire whether he would come for puja.

Till then, she was not aware of the incident. Her sister 'X' then informed her over phone

about the incident and she (X) stated that she would not sit for the proposed puja. Then, she

(PW-3) called the appellant's wife and informed her about the incident and the appellant's

wife also informed her that she had heard about such activities about her husband on earlier Page No.# 11/21

occasions with other victims and she suggested that they should inform the police about the

incident. She, PW-3 then informed her brother Rupjyoti Neog over phone about the incident.

Her brother then came along with two other villagers and together they went to the

appellant's house. At that time, the appellant was intoxicated and on being confronted, he

ignored them and did not answer their queries. The appellant was handed over to the police.

25. Learned counsel for the appellant laid stress in his argument that the evidence of the

informant clearly depicts that the family members of the victim learnt about the incident on

the same day i.e. immediately after the appellant's departure from their house, whereas the

evidence of PW-3 depicts that they went after the appellant on the following day of the

incident. It is further argued that the victim deposed that she informed about the incident on

the night of the incident.

26. A close scrutiny of the evidence of PW-2 depicts that the appellant came to their house

at about 4.00 - 5.00 PM, but puja was performed later and, while having dinner she informed

her family members about the incident and refused to be present in the puja. It is further

argued that although PW-2 has stated that she informed 'Z' about the incident on the same

night, at dinner time, the witness 'Z' as PW-3 deposed that she learnt about the incident on

the following day. It is true that there is some difference relating to the time when the

incident was narrated by the victim to her sister 'Z', but the fact remains that the victim has

informed her family members about the incident be it at dinner time or, be it on the next day

or on the same day.

27. Although the victim was cross-examined in extenso, yet the victim's evidence was found

to be consistent. In a case of sexual harassment if the victim's evidence is found to be Page No.# 12/21

consistent, conviction can be based on the sole testimony of the victim. In her cross-

examination by the defence, PW-2 (victim X) has deposed that she was suffering from

ailment for four years and she also went for doctor's treatment but she did not recover from

doctor's treatment. Her sister 'Z' arranged a treatment with the appellant's wife and she then

recovered from her ailment.

28. Several questions were asked relating to money which was not paid by the victim's

family to suggest mens rea or motive on the part of the victim's family to rope in the

appellant in a false case, but, there was no such instance of financial dispute between the

aggrieved and the appellant. No contradiction could be elicited as per Section 145 of the

Indian Evidence Act, 1872 (Evidence Act for short) qua Section 162 of CrPC. Thus, it can be

safely held that the victim's initial statement before the IO as well as her statement under

Section 164 of CrPC is consistent to her deposition in the Court. When the victim has not

vacillated from her earlier statements, she can be held to be a sterling witness. The only

contradiction that could be elicited through the cross-examination of the victim is that the

victim has admitted in her cross-examination that she was 22 (Twenty Two) years old on

30.04.2022. This does not cause a dent in the evidence of the victim as suggested by the

learned counsel for the appellant. The victim's evidence cannot be discredited. There may be

a difference of age of a few years here and there, but the victim's deposition was consistent

to her initial statement. The MO's evidence depicts that the victim was above 18 years on

23.08.2018 whereas on 24.08.2018 the victim gave her age as 15 years showing a difference

of 3 years on the higher side of her radiological age.

29. The evidence of the Medical Officer as PW-7 is not noteworthy relating to the offence

alleged. However, the medico-legal report marked as Exhibit-3 and proved by Dr. Laxmi Page No.# 13/21

Devi/PW-7 as Exhibit-3 reveals that the victim was above 18 years at the time of the incident.

It has been held in the catena of decisions that there may be an error of 2-3 years on either

side of the radiological age of a person. As the MO has given the radiological age of the

victim as 18 years, the appellant was convicted under the IPC and not under the POCSO Act.

A wide gap in the age given by the victim and the Medical Officer is not evident. The victim

can be considered to be a sterling witness as not a single contradiction could be elicited

through her cross- examination and the cross-examination of PW-8.

30. The facts and circumstances of this case and the conduct of the victim and the family

members, clearly reveals that they have some superstitious beliefs relating to treatment of

ailment by sorcerers or witch doctors. No birth certificate could be produced to substantiate

the age of the victim. On the opinion given by the Medical Officer, the victim's age was

ascertained. It is not uncommon in certain remote areas like Joysagar, for parents or brothers

do not keep track of the age of daughters or sisters. Even the victim may not have been

aware of her age.

31. Arguments of learned counsel for the appellant that this case was earlier booked under

the Protection of Children from Sexual Offences Act, 2012 (POCSO Act for short) as the victim

and the informant have given a false age to aggravate the offence, is not justifiable.

32. Learned counsel for the appellant further laid stress in his argument that PW-1 has

stated in the FIR that his sister informed him about the incident on the following day whereas

on the contrary, in his deposition, PW-1 has stated that the victim informed about the incident

on the same day.

33. It has already been held in my foregoing discussions that when the evidence is Page No.# 14/21

recorded after three years, there may be possibilities, that the time when the incident was

informed may not be correctly mentioned by the informant.

34. The cross-examination of the informant, PW-1 depicts that he lodged the FIR on the

same evening. He has proved his signature on the FIR. It is true that the date of lodgment of

the FIR was mentioned as 22.08.2018. This difference of dates relating to lodgment of the

FIR and registration of the GD entry does not thwart the evidence. The FIR marked as

Exhibit-1 clearly reveals that Joysagar Police Station GD entry No. 469 was registered on

23.08.2018 and the FIR dated 22.08.2018 was thus registered on 23.08.2018.

35. PW-3 was also cross-examined in extenso but the evidence reveals that no

contradiction could be elicited through the cross-examination of PW-3 vis-à-vis the cross-

examination of the IO Sri Naba Kr. Das, who deposed as PW-8. No contradictions could be

elicited as per Section 145 of the Evidence Act vis-à-vis Section 162 of CrPC through the

vigorous cross-examination of the prime witnesses i.e. PW-1, PW-2 and the cross-

examination of PW-9.

36. Sri Biswajit Bhuyan deposed as PW-4 that the informant is known to him and, he came

across the appellant at the time of the incident. The incident occurred in the year 2018. The

victim X was suffering from some ailment and the appellant's wife provided treatment as a

sorcerer. The appellant also went to the victim's house and provided treatment during the

daytime. The victim's elder brother Rupjyoti is his friend and Rupjyoti informed him over

phone that the appellant groped the victim inappropriately. Then, he, PW-4 along with

Rupjyoti accompanied by their friends, went to appellant's house and confronted him about

the incident. The appellant was about to escape but they caught him and handed him over to Page No.# 15/21

the police. When he asked the victim, she informed that the appellant touched her in an

inappropriate manner. This witness was cross-examined in extenso. The only contradiction

that could be elicited through the cross-examination of this witness vis-à-vis the cross

examination of the IO is that he did not mention in his initial statement before the police that

the victim informed him that the appellant groped her in an inappropriate manner in the

pretext of providing treatment to her.

37. The remaining part of the evidence of PW-4 has remained un-contradicted and

uncontroverted despite rigorous cross-examination by the defence.

38. It is apt to mention at this juncture that Rupjyoti Neog as PW-6 and the informant as

PW-1 have testified that Rupjyoti and three other villagers chased the appellant and caught

him on the road and handed him over to the police. Thus, there is corroborating evidence

that PW-4, Biswajit Bhuyan and PW-6 Rupjyoti Neog caught the appellant when he was about

to flee and handed him over to the police. This evidence of PW-1 and PW-4 is also

corroborated by the evidence of Dipjyoti Kalita, who deposed as PW-5 that the informant is

known to him and he came across the appellant at the time of the incident which occurred in

the year 2018. The victim X was suffering from some ailment and she was provided treatment

by the appellant. He was present when the victim informed her brother Rupjyoti about the

incident. The victim informed her brother that the appellant groped her inappropriately. On

the following day of the incident, the appellant was supposed to provide treatment to the

victim X. On hearing about the incident, he along with Rupjyoti Neog/PW-6, Biswajit

Bhuyan/PW-4 and Amar along with two other villagers went to the appellant's house and

confronted him about the incident. They then handed the appellant to the police.

Page No.# 16/21

39. It is immaterial if the time given by PW-1 when the appellant was handed over to the

police is not similar to the time given by the other witnesses. The appellant was handed over

to the police by PW-4, PW-5 and PW-6 on the following day of the incident after they learnt

about the incident from the victim. The evidence of PW-4, PW-5 and PW-6 clearly depicts that

the appellant provided ritualistic treatment to the victim and on the pretext of providing

treatment to the victim, the appellant groped her in an inappropriate manner. On the

following day, when they went to the appellant's rented house and confronted him about the

incident, he tried to escape and then, they caught him and handed him over to the police.

This has been narrated by the witness PW-1. The fact that there is a slight deviation in the

evidence of the witnesses, renders the evidence credible. Rather, if the evidence is similar like

photocopies, then the witnesses may appear to be tutored witnesses.

40. Considering how an incident is perceived by each and every individual, slight difference

in the narrative of the witnesses, appears to be the evidence of reliable witnesses and it is

prudent to accept such evidence as credible evidence. The contradiction elicited through the

cross-examination of PW-5 vis-à-vis the cross-examination of the IO/PW-8 does not cause a

dent in the evidence. It is true that the IO/PW-8 has affirmed that PW-5 has not mentioned in

his statement under Section 161 of CrPC that he was present when the victim X narrated the

incident to her brother Rupjyoti that the appellant groped her inappropriately. It has to be

borne in mind that the evidence of PW-5 clearly depicts that the appellant groped the victim

inappropriately and they confronted the appellant who tried to flee and they caught him and

handed him over to the police. The evidence that the appellant provided ritualistic treatment

to the victim as a witch doctor has also remained un-contradicted and uncontroverted. Thus,

the evidence of PW-5 is held to be reliable evidence of a witness, who cannot be discredited.

Page No.# 17/21

41. Similarly, the evidence of Rupjyoti Neog also clearly depicts that the victim is his

younger sister and the incident occurred in the year 2018. The appellant provided the victim

with ritualistic treatment as 'Bej'. His younger sister's health was deteriorating and they called

the appellant's wife for her treatment but she sent her husband on the day of the incident.

The appellant came to their house at about 6.00 - 6.30 PM and asked for certain articles for

puja. The appellant asked for a separate room and provided treatment to the victim X. When

the appellant left, his sister informed Z/PW-3 that the appellant groped her inappropriately.

His sister X was in tears. He then informed his friend Biswajit Bhuyan/PW-4, Dipjyoti

Kalita/PW-5 and his brother/PW-1 about the incident. Many people assembled in their house.

Thereafter, they took the appellant from their house to the police station. PW-6 further

deposed that as the incident occurred several years ago, there was an overlapping in his

narrative and so, he again repeated the sequel of events. PW-6 further deposed that his sister

informed them over phone that on the previous day, the appellant did not provide any

treatment to the victim X, but only inappropriately groped her (X). He then went to his

sister's (PW-3's) house and she again narrated the entire incident to him. Thereafter, he along

with his friend Z, brother Y and his friend Biswajit went to the appellant's rented house at

Joysagar and confronted him about the incident. The appellant's wife then suggested that

they should take the appellant to the police station. They then took the appellant to Joysagar

Police Outpost and his brother then lodged the FIR (Ejahar). He did not ask his sister (X)

about the incident as he was embarrassed. He has also given his sister's age as 23 (Twenty

Three) years as on 20.09.2022.

42. Thus, the evidence is robust against the appellant. The difference of dates and time

according to the narration of different witnesses is acceptable. Except ignorable differences in Page No.# 18/21

dates and time, no major contradictions could be elicited through the cross-examination of

any of the witnesses as per Section 145 of the Evidence Act vis-à-vis Section 162 of CrPC.

The evidence that the appellant committed sexual assault on the victim on 21.08.2018 could

not be negated.

43. The IO, a formal witness deposed as PW-8 that on 23.08.2018, he was posted as I/C at

Joysagar Outpost. On that day, Y lodged an FIR which was forwarded to the Sivasagar Police

Station, which was registered as Sivasagar P.S. Case No. 837/2018. The O/C entrusted him

with the investigation and he interrogated the informant and recorded his statement. The

appellant was brought to the Outpost in an injured condition by the public and he forwarded

the appellant to the hospital for medical treatment. The victim was also brought to the

Outpost on the same day by her family members in a physically weak state and he forwarded

her to the hospital for treatment. Thereafter, he proceeded to the PO and, prepared the

sketch map and recorded the statements of the other witnesses and the statement of the

victim. He arrested the appellant and forwarded him to the Court. He forwarded the victim for

recording her statement under Section 164 of CrPC. After completion of investigation, he

submitted charge sheet against the appellant. On being transferred, he handed over the Case

Diary to SI Dulal Ch. Gogoi, who submitted charge sheet against the appellant. He has

identified the signature of SI Dulal Ch. Gogoi as Exhibit 5(1) on the charge sheet marked as

Exhibit 5.

44. The appellant's wife Smt. Sabita Roy deposed as DW-1 that the incident occurred about

five years ago. The victim was ailing and her elder sister (Z) requested her to provide

treatment to the victim. Accordingly, she provided treatment to the victim. One day, she sent

her husband along with a 'tabeez' for the victim. On the following day, after the 'tabeez' was Page No.# 19/21

handed over to the victim, Y called her to their house to make payments for the 'tabeez'. On

the same day, the victim's family members assaulted her husband on the road and handed

him over to the police, but they did not make any payments for the 'tabeez'. Although she

had cured the victim of her ailment, a false case has been brought up against her husband.

45. It is apt to mention at this juncture that the evidence of PW-1, PW-4, PW-5 and PW-6

clearly depicts that the appellant was apprehended and he was assaulted on the road and

handed over to the police. This has been substantiated by the evidence of appellant's wife as

DW-1. Thus, this fact is relevant as per Section 6 of the Evidence Act, of the appellant being

confronted by PW-1, PW-4, PW-5, PW-6. The evidence that the appellant was assaulted by

the victim's family members, which has also been affirmed by the IO as PW-8, forms a part of

the same transaction as per Section 6 of the Evidence Act. It would be apt to reiterate that

no mens rea could be attributed as to why a false case has been brought up against the

appellant. The firsthand account of the victim clearly proves this case beyond a reasonable

doubt. Several questions were asked to the appellant under Section 313 of CrPC, but he has

not mentioned that a false case has been brought up as the family of the victim owed him

some money. It is true that his answer to question No. 48 under Section 313 of CrPC reveals

that he went to hand over the 'tabeez' to the victim and to bring money but he has not stated

with clarity that a false case has been brought up against him as the victim's family members

were indebted to him and had to pay him some money.

46. Learned Trial Court has recorded sound reasonings while convicting the appellant. I

therefore, record my concurrence to the findings of the learned Trial Court. The sequel of

events clearly reveals that Page No.# 20/21

the appellant's wife earlier used to provide treatment to the victim.

As the victim was ailing, the appellant as a sorcerer, provided ritualistic treatment to the

victim. On the day of the incident, the appellant outraged the modesty of the victim in a most

deplorable manner.

The evidence of the witnesses depicts that the victim was in tears and she informed her

family members about the incident.

The family members then informed their family friends about the incident. The

witnesses then went to the appellant's house and confronted him.

When the appellant tried to escape, he was assaulted and handed over to the police at

Joysagar Police Outpost.

47. It would be pertinent to reiterate that no major contradictions could be elicited through

the cross-examination of the witnesses. The victim has not vacillated from her earlier

statements. The victim is a sterling witness. The decision of the Trial Court convicting the

appellant under Section 354 of IPC is hereby upheld with a slight modification.

48. I have considered the submissions on behalf of the appellant that much water has

flowed under the bridge. The appellant's wife is leading the life of a vagabond and his son

has committed suicide as the appellant was behind bars.

49. Considering the plight of the appellant and the ameliorating circumstances at this stage,

I deem it proper to reduce the sentence to the period already undergone by the appellant.

The order of conviction dated 28.02.2023 passed by the learned Trial Court in connection

with Special (POCSO) Case No. 36/2019 is upheld but the sentence is reduced to the period

of detention already undergone by the appellant so far.

Page No.# 21/21

50. The appellant may be released if he is not wanted in any other case.

51. In terms of the above observation, this Criminal Appeal stands disposed of.

52. Send back the Trial Court Record.

JUDGE

Comparing Assistant