Crl.Rev.P./155/2013
2025 Latest Caselaw 6870 Gua

Gauhati High Court

Crl.Rev.P./155/2013 on 1 September, 2025

   GAHC010233872013




                                                       2025:GAU-AS:11730

                  IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

                           CRL.REV.P.NO.155 OF 2013

                           Md. Banser Ali,
                           S/o Md. SahadatHussain,
                           Village-BadliBorali,
                           Post office-Kharupetia,
                           Police Station: Dolgaon,
                           District- Darrang, Assam.   ........Petitioner

                                     -Versus-

                         1. State of Assam,
                            Represented by the Addl. P.P, Assam.

                         2. Md. Abdul Sobahan,
                            S/o Lt. Paresuddin,
                            R/o BadliBorali, P.O. Dalgaon,
                            District: Darrang, Assam. ........Respondents


                             -BEFORE-

             HON'BLE MRS. JUSTICE SHAMIMA JAHAN

   For the Petitioner      : Ms. F. Intaz, Advocate.

   For the Respondents     : Mr. D.P. Goswami
                             Addl. Public Prosecutor, Assam.


                                                               Page 1 of 14
                Date of Hearing        : 26.08.2025.

               Date of Judgment      : 01.09.2025.



                  JUDGMENT & ORDER (CAV)

          Heard Ms. F. Intaz, learned counsel for the petitioner.
Also heard Mr. D.P. Goswami, learned Addl. Public Prosecutor for
the State respondent.

2.        This is an application filed under Section 401 read with
Section 397 of the Cr.PC for setting asidethe impugned Judgment
& Order dated 04.03.2013 passed by the learned Sessions Judge,
Darrang,Mangaldoi in C.A. Case No. 34(D-4)11, by which the
appeal was dismissed and the conviction and sentence was
upheld.

3.        The petitioner had also challenged the Judgment &
Order passed by the Assistant Sessions Judge, Darrang,
Mangaldoi in Sessions Case No. 53(DM-4)07, by which the Trial
Court convicted the accused person under Section 376 IPC and
sentenced him to undergo Rigorous Imprisonment for 7 (seven)
years with a fine of Rs. 5,000/- (Rupees Five Thousand) and in
default, to undergo a further period of Rigorous Imprisonment for
6 (six) months.

FACTS:

4. On 12.09.2007, an FIR was lodged by the mother of the victim stating, inter-alia, that the victim, who was aged 13 years, was taken by the petitioner to his house to do some domestic work, and he raped her, taking the advantage of absence of any person in his house. The informant stated that the incident had taken place 4 (four) months back to the lodging of the FIR. The informant also stated that the petitioner had threatened the victim and takingfurther advantage of the absence of occupants in the house,he forcibly raped the victim for another 2 (two) days. She also stated that the victim did not disclosed the incident out of fear and shamefulness and that when her menstruation cycle stopped, the victim reported to her neighbour and that the said fact surfaced. It is also stated that the victim was pregnant at the time of lodging of the ejahar. The Police, on receipt of the ejahar, registered the case under Section 376(f) of IPC.

5. On completion of the investigation, the Police submitted a Charge-sheet against the petitioner. Thereafter, on conclusion of the necessary requirements, charges were framed against the petitioner under Section 376 of IPC on 06.12.2007 and the trial was initiated.

6. During the trial, the prosecution examined 6 (six) witnesses and after examination of the accused person under Section 313 of the Cr.PC, the defence examined 3 (three) witnesses and thereafter, on conclusion of the trial, the petitioner

was convicted under Section 376 IPC and was sentenced to undergo punishment as mentioned above. Aggrieved by the order of the Trial Court, the petitioner filed an appeal being CA Case No. 34(D-4)11 before the learned Sessions Judge, Darrang, Mangaldoi and the learned Sessions Judge vide Order dated 04.03.2013 upheld the order of the Trial Court and directed the petitioner to surrender before the Trial Court. Against the said Judgment, the petitioner has approached this Court by filing this instant Criminal Revision Petition.

EVIDENCE:

7. The victim was examined as PW-1 in the instant case and she stated before the Trial Court that during the delivery of her elder sister, the petitioner called her to his house and she went. The petitioner is the brother-in-law of the victim. She further stated that about 8-9 months earlier, the petitioner forcefully had sexual intercourse with her when her elder sister went to fetch water and that she did not reveal the incident to anyone as the petitioner threatened her but when she became pregnant, she told the incident to her paternal grandmother and the paternal grandmother told the incident to her father. She also stated that she gave birth to a male child and that the petitioner is the father of the said child and also that the petitioner forcefully raped her in 3 (three) days.

8. During her cross-examination before the Trial Court, she stated that when her sister returned after fetching water, she did not tell her as the petitioner threatened her. She also stated during the said cross-examination that 3 (three) days thereafter, the petitioner again raped her when her elder sister was washing clothes and that after 2 (two) days, the petitioner again raped her in absence of her elder sister.

9. During the said cross-examination, a contradiction was put to the victim, inasmuch as, she denied that she did not say before the Police that the petitioner had raped her when her elder sister went to fetch water and was washing clothes. The victim further stated that the petitioner had filed a case against her father and brother, in view of the land dispute between them.

10. It is a settled position of law that the statement of the victim can be the sole basis for conviction, however, the same should be consistent before other authorities and the same should inspire confidence. It is held by the Apex Court that the statement of the victim has to be seen from the very beginning, i.e., her statement before the Police, then her statement before the Magistrate and then her statement before the Trial Court. As such, her statement before the Police and Magistrate may be mentioned hereunder:-

11. She stated before the Police under Section 161 of the Cr.PC that the petitioner raped her during the absence of her

elder sister in his house. She also stated that the petitioner had threatened her not to tell the incident to anyone. She also stated that the petitioner had given her tablets, telling her that everything would be fine and she also stated that she divulged the incident to her grandmother.

12. Before the Magistrate, the petitioner stated that about 4 (four) months back at the time of delivery of her elder sister, she was taken by her brother-in-law, i.e., the petitioner, to his house and that one day, the petitioner raped her in absence of her elder sister in the house. She also stated that after 2 (two) days, the petitioner again raped her and that he threatened her not to disclose the incident to anybody. She further stated that she got pregnant due to the said rape committed by the petitioner and that after 15 days, she came back to her house and divulged the matter to the wife of Ali, her elder brother and one PulesaKhatun, her sister-in-law.

13. It is noticed that there are discrepancies in the statement of the victim before the authoritiesand as such, it is a settled position of law that in case of discrepancies, corroboration may be sought for. Before the Police and the Magistrate, the victim stated that when she was raped for the first time, her sister-in-law was not in the house, whereas, in her statement before the Trial Court, she stated that when she was raped, her sister-in-law had gone to fetch water.

14. The informant was examined as PW-2 and she stated that the petitioner, who is her son-in-law, had taken the victim to do household work in his house during the delivery of her elder daughter and that the victim had gone to his house and that during her stay, the petitioner had raped her daughter and made her pregnant. She also stated that the victim told her about the incident after 4 (four) months of the same.

15. The Doctor, who was examined as PW-3 had stated that on examination of the victim, she found the hymen absent but she did not opine about rape on the victim girl. She further stated that the age of the victim would be between 16-17 years and that she had been pregnant for more than 23 weeks.

16. The grandmother of the victim was examined as PW-4 and she stated that when the menstruation of the victim had stopped, she asked her the reason and then the victim told her that when she was in the house of the petitioner, the petitioner raped her. This witness thereafter stated the said fact to the father of the victim, who went for lodging the FIR. This witness further stated that there was a land dispute between the father of the victim and the petitioner and that the petitioner was once assaulted by the father's side, for which he was admitted in the hospital.

17. PW-5 is the sister-in-law of the victim and she too corroborated the statement of other witnesses to the effect that

the victim was taken by the petitioner for doing domestic work and that it was divulged very late by the victim that the petitioner had raped her and that he gave her tablets for her miscarriage. She too stated about the family dispute regarding the land given to the petitioner.

18. The Investigating Officer was examined as PW-6, who stated that he conducted the investigation by recording the statement of the victim and other witnesses and had produced the victim girl for recording her statement under Section 164 of the Cr.PC.

These are the evidence led by the prosecution.

19. Thereafter, the petitioner was examined under Section 313 of the Cr.PC, to which the accused person denied all the incriminating circumstances put to him. Thereafter, the defence adduced 3 (three) defence witnesses.

20. DW-1 is the father of the accused person, who had stated that at the time of marriage, 4 (four) bighas of land were given by the father-in-law to the accused person but the said land was demanded back by the father-in-law of the petitioner and when his son refused to return the land, there was a land dispute, wherein assault had taken place on his son and that he was admitted in the hospital.

21. The brother-in-law of the accused person was examined as DW-2 and he also stated the same facts about the land dispute.

22. The wife of the accused person was examined as DW-3 and she had also stated about the land dispute. All the three witnesses had stated that the victim never went to the house of the petitioner. These are the evidence led by the Defence.

SUBMISSIONS

23. Ms. F. Intaz, learned counsel for the petitioner submits that there is a discrepancy in the statement of the victim, inasmuch as, before the Magistrate, the victim stated that after the incident, she told about the same to the wife of Ali, her elder brother and Pulesa Khatun, her sister-in-law, whereas, in her statement before the Trial Court, she stated that she told the incident to her paternal grandmother after she found herself pregnant.

24. The learned counsel for the petitioner also submitted that the victim had stated that she was 5 (five) months pregnant with the child of the petitioner and that in her statement, she said that the incident had taken place 4 (four) months before the lodging of the FIR. As such, she submits that the incident, which was stated to have happened 4 (four) months back, could not have resulted in her being pregnant for 5 (five) months and as

such, she states that the petitioner was not responsible for the said pregnancy. She also stated that in the Medical Report, the Doctor opined after examination that the victim was carrying pregnancy of 23 weeks, which again does not tally with the prosecution story.

25. The learned counsel for the petitioner also stated that no DNA test was done inorder to see whether the child belongs to the petitioner. She further submits that there was a land dispute between the petitioner and the father of the victim, which was also stated by the victim herself and as such, she states that the prosecution story is incorrect.

26. The learned counsel for the petitioner also submits that the incident had occurred in the year 2007 and now that 18 (Eighteen) years have gone by and as such, has prayed that the impugned Judgment may be set aside for the ends of justice.

27. Mr. D.P. Goswami, learned Addl. Public Prosecutor had stated that as far as the core spectrum of the incident is concerned, the victim was consistent before all the authorities, wherein she stated that when she was taken to the house of the petitioner and the petitioner, taking advantage of the absence of other people, raped her and resultantly impregnated her. The said version was also corroborated by the medical evidence as stated by the learned Addl. Public Prosecutor.

28. In the backdrop of the said facts and submissions made by the parties, this Court is now called upon to adjudicate the legality of the impugned Judgment & Order passed by the Trial Court as well as the Judgment passed by the Sessions Judge in its appellate jurisdiction.

ANALYSIS

29. It is no res-integra that in cases of sexual offences, the statement of the victim could be the sole basis for conviction of the accused person, however, the same has to be consistent and should inspire the confidence of the Court. It is as such required that the statement of the prosecutrix has to be considered right from the beginning, i.e., her statement before the Police till her statement before the Trial Court.

30. As stated above, in her Police statement, she stated that in absence of her elder sister, the petitioner had raped her and with the further threatening that the victim should not divulge the incident to anyone. However, in her statement before the Trial Court, the victim stated that the petitioner raped her when her elder sister went to fetch water, whereas, in her statement before the Magistrate, she stated that the petitioner raped her in the absence of her elder sister. It seems there are differences in the statement of the victim before the authorities concerned.

31. Further, the victim had also given inconsistent statement before the authorities concerned as far as the information of the incident to her relatives. In her statement before the Trial Court, the victim stated that she informed about the incident to her paternal grandmother, whereas, in her statement before the Magistrate, she stated that she informed about the incident to other members of her family and in her statement before the Police, she stated that she divulged the incident to her grandmother. There is again inconsistency in the statement of the victim. It is in the statement of the Doctor that the victim, who was examined on 12.09.2007 was found with 23 weeks' pregnancy, which again does not tally with the time mentioned by the victim in her statement.

32. Further, a contradiction was placed before the victim during her cross-examination, wherein she stated that it is not a fact that she did not state before the Police that the accused person raped her when her elder sister went to fetch water. However, the said contradiction was not proved as per law.

33. It is also a settled position of law that if contradiction are seen in the statement of the prosecutrix, corroboration from other evidences on record has to be considered. It can be seen in the statement of the mother of the victim that she was a hearsay witness and that she was informed by the victim regarding the incident after 4 (four) months of the same.

34. The further evidence adduced by the grandmother of the victim is to the effect that victim replied on being asked as to why her periods stopped that she was raped forcibly by the petitioner. The said evidence cannot be said to have corroborated the evidence of the victim, inasmuch as, the witnesses are hearsay witnesses and that also the same cannot be considered as res- gastae evidence under Section 6 of the Evidence Act, since the incident was informed much after it happened and the same do not become part of the same transaction as provided under the said section.

35. The evidence of the Doctor also does not corroborate the evidence of the victim as far as the time of the incident is concerned. Further, since it is the law that equal importance has to be given to both the Prosecution Witnesses and the Defence Witnesses and as such, it is seen that the elder sister of the victim, who was examined as DW-3 had stated about the land dispute between her husband and her father and she further stated that the victim never came to their house during the time of her pregnancy. She also denied the suggestion that victim was called to their house by her husband for doing domestic work and that her husband raped the victim.

36. In view of the discussions made above, this Court set asides the impugned Judgment & Order dated 04.03.2013 passed by the Sessions Judge, Darrang, Mongoldoi in C.A Case No. 34(D-

4) 11, by which the conviction and sentence inflicted upon the petitioner was upheld.

37. Further, this Court also set aside and quashed the Judgment & Order dated 02.07.2011 passed by the Trial Court in Sessions Case No. 53 (DM-4) 2007, by which the petitioner was convicted under Section 376 IPC and was sentenced thereunder.

38. Petitioner to be released forthwith, if not required in any other offence. Bail bond to be discharged.

39. Send back the TCR.

JUDGE

Comparing Assistant