Bishnu Kishko vs The Stte Of Assam
2025 Latest Caselaw 8856 Gua

Gauhati High Court

Bishnu Kishko vs The Stte Of Assam on 25 November, 2025

Author: M. Zothankhuma

Bench: Michael Zothankhuma

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GAHC010165262021




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

                                Case No. : CRL.A(J)/32/2021

             BISHNU KISHKO
             UDALGURI, ASSAM.

             VERSUS

             THE STTE OF ASSAM
             REP. BY PP, ASSAM.

             2:SRI BAJUN KISHKU
              LT. JITA KISHKU

             VILL- DIMAPUR
             PS- ORANG
             DISTRICT UDALGURI
             BTAD
             ASSAM

                                        :::BEFORE:::
          HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
               HON'BLE MRS. JUSTICE MITALI THAKURIA


Advocates for the appellant   : Mr. B.J. Talukdar, ..Sr. Advocate/
                                                Amicus Curiae.
                                 Mr. P.K. Medhi, ...Advocate.
Advocate for the respondent   : Ms. A. Begum.    ..Addl. P.P., Assam.


Date of hearing and judgment : 25.11.2025.
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                          JUDGMENT & ORDER (ORAL)

(M. Zothankhuma, J)

Heard Mr. B.J. Talukdar, learned Senior Counsel appearing as Amicus Curiae for the appellant assisted by Mr. P.K. Medhi. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam for the State respondent.

2. This appeal is against the impugned judgment dated 21.01.2021 passed by the Special Judge, Udalguri, in Special POCSO Case No.41/2019 arising out of Orang P.S. Case No.70/2019, by which the appellant has been convicted under Section 376(2)(f) of IPC and sentenced to undergo rigorous imprisonment for life, with a fine of Rs.5,000/-, in default simple imprisonment for 3 (three) months.

3. The appellant's counsel submits that the appellant has been convicted by the learned Trial Court only on the basis of the statement made by the victim girl in her 164 Cr.P.C statement, which was later retracted by her during her testimony before the learned Trial Court. As there is no evidence adduced against the appellant, the appellant could not have been convicted by the learned Trial Court.

4. Ms. A. Begum, learned Additional Public Prosecutor submits that conviction under the POCSO Act, 2012 can be made on the sole testimony of the victim, provided that the same is trustworthy and inspires the confidence of the Court.

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She however does not deny the fact that the statement made by the victim under Section 164 Cr.P.C had been retracted by her during her testimony given before the learned Trial Court.

5. We have heard the learned counsels for the parties.

6. The brief facts of the case is that an FIR dated 29.07.2019 had been submitted by the informant [Prosecution Witness (PW) No.4] to the effect that the appellant had sexually assaulted his younger sister aged 12 years 7 months, due to which the victim was 7 months pregnant. The FIR also stated that in a public meeting dated 28.07.2019, the appellant had confessed that the victim was 7 months pregnant, due to the sexual assault committed on her by the appellant.

7. In view of the FIR, Orang P.S. Case No.70/2019 under Section 376 IPC read with Section 4 of the POCSO Act was registered. The learned Trial Court thereafter framed charge under Section 376(3) of IPC and Section 4 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried.

8. After the investigation was completed, the Investigating Officer submitted a charge-sheet against the appellant, on finding a prima facie case against the appellant under Section 376(3) of IPC read with Section 4 of the POCSO Act. The learned Trial Court thereafter examined 8 (eight) prosecution witnesses and after examining the appellant under Section 313 Cr.P.C, wherein the appellant Page No.# 4/7

pleaded his innocence, the learned Trial Court came to a finding that the appellant had sexually assaulted the victim (appellant's younger sister) and convicted the appellant therein under Section 376(2)(f) of IPC and Section 4 of the POCSO Act, on the ground that the victim was a major at the relevant point of time.

9. The learned Trial Court found the appellant guilty only on the basis of retracted statement made by the victim under Section 164 Cr.P.C, in which she had stated that she had been sexually assaulted by the appellant and in view of the evidence of the Medical Officer (PW-1), who had stated that he found the victim girl carrying a pregnancy of 31 weeks and 3 days.

10. As can be seen from the evidence of all the prosecution witnesses, there is nothing stated in the testimonies of the witnesses that the appellant had sexually assaulted the victim or that the appellant had impregnated the victim.

11. Though the statement of the victim under Section 164 Cr.P.C is to the effect that the appellant had sexually assaulted her, the said statement was retracted by the victim (PW-2) during the recording of her evidence before the learned Trial Court. The victim, in her testimony stated that she used to sleep in the same bed with the appellant in her house and that friends of her brother used to come frequently to their home. She found herself pregnant but did not know as to how she became pregnant. Further, her mother suspected that she had become pregnant due to the fact that she slept in the same bed with her brother. On suspicion, her uncle lodged the FIR against her brother. She also Page No.# 5/7

stated that the statement made under Section 164 Cr.P.C was not her version and the same had been made out of threat and persuasion of the village people. She stated that the appellant did not indulge in any sexual intercourse with her.

12. The evidence of PW-3, who is the mother of the appellant and the victim, is to the effect that she did not know how her daughter became pregnant and she is not sure as to whether her son impregnated her daughter, in view of the fact that many boys, who were friends of her son, used to visit their home.

13. The evidence of the informant (PW-4) is to the effect that he is the brother of the father of the victim and the appellant. On noticing that the victim was pregnant, he enquired about this with her parents. However, they could not say how the victim became pregnant. Out of suspicion that the brother of the victim had made her pregnant, he had lodged the FIR. He also stated that the victim did not tell him that she had been impregnated by the appellant.

14. The evidence of PW-5, who is the father of the victim, is to the effect that his daughter used to sleep with the appellant in their house and as such, he suspected that the appellant might have impregnated the victim. He also stated that the victim's pregnancy was later on terminated by a Doctor. He also stated that he was not sure as to who actually impregnated his daughter as many village boys, who were the friends of the appellant, used to visit their house.

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15. The evidences of the victim and the prosecution witnesses do not point the finger of guilt towards the appellant. There is no evidence proving the guilt of the appellant. There is only a suspicion that the appellant might have been the person who had caused the pregnancy of the victim. However, it is settled law that suspicion cannot take the place of proof. It is only the victim's retracted statement made under Section 164 Cr.P.C that points the finger of blame on the appellant, as the person who had caused the victim to become pregnant. However, it is settled law that the statements recorded under Section 164 Cr.P.C are not substantive evidence and they can only be used, either to contradict or to corroborate the evidence of the maker of the said statement.

16. In the case of Amir Hamja vs. State of Assam & Another , reported in 2020 2 Crimes (HC) 147, the Division Bench of this Court held that statements made under Section 164 Cr.P.C cannot be treated as substantive evidence, as the defence had no opportunity to cross the witness, who make the statements under Section 164 Cr.P.C. It can only be used for contradiction or corroborating the witness.

17. In the case of Saroj Kumar Das vs. State of West Bengal , reported in 2016 0 Supreme (Cal) 276, the Division Bench of the Calcutta High Court held that statements recorded under Section 164 Cr.P.C are not substantive evidence. Section 164 Cr.P.C. statement can only be used, either to contradict or to corroborate the maker thereof. In the present case, there is no evidence adduced by the prosecution witnesses that the appellant had sexually assaulted the victim. As the statement made by the victim under Section 164 Cr.P.C is not Page No.# 7/7

substantive evidence and as the same has been retracted by the maker, the learned Trial Court erred in convicting the appellant on the basis of Section 164 Cr.P.C. Further, in view of the above reason, there was no proof that the appellant was the person who had impregnated the victim. The decision of the learned Trial Court having been made without any evidence, the impugned judgment dated 21.01.2021 passed by the Special Judge, Udalguri, in Special POCSO Case No.41/2019 arising out of Orang P.S. Case No.70/2019 is not sustainable in law. The same is accordingly set aside. The appellant is accordingly acquitted of the charge framed against him and is to be released immediately from judicial custody.

18. The appeal is accordingly allowed and disposed of.

19. Send back the TCR.

20. In appreciation of the assistance provide by the learned Senior Counsel appearing as Amicus Curiae, his fee should be paid by the Assam State Legal Services authority.

                       JUDGE                                  JUDGE



Comparing Assistant