Page No.# 1/13 vs State Of Assam
2025 Latest Caselaw 7184 Gua

Gauhati High Court

Page No.# 1/13 vs State Of Assam on 10 September, 2025

                                                                           Page No.# 1/13

GAHC010235082013




                                                                   2025:GAU-AS:12721

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

                                  Case No. : Crl.A./326/2013

            BISHRAM BODRA
            S/O SRI MANSUKH BODRA, R/O LANGKASHI GUTIBARI, VILL. UNDER
            BORDUBI POLICE STATION, IN THE DIST. OF TINSUKIA, ASSAM.



            VERSUS

            STATE OF ASSAM




Advocate for the Petitioner   : MR.P KATAKI, MR.D K BAGCHI,MS.J D KALITA

Advocate for the Respondent : , PP, ASSAM,
                                                                                Page No.# 2/13


                                 BEFORE
                HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

                                         ORDER

Date : 10.09.2025

Heard Mr. P. Kataki, learned counsel for the appellant. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor, appearing for the State Respondents.

2. The present appeal has been instituted invoking the provisions of Sections 374(2) of the Code of Criminal Procedure, 1973, assailing the Judgment And Order dated 12.08.2013, passed by the learned Sessions Judge, Tinsukia, in Sessions Case No.222(T)/2012, convicting the appellant, herein, under Section 354 of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for 1(one) year.

3. The prosecution case in brief is that, on 02.04.2012, an ejahar was lodged by the prosecutrix at Langkashi Police Out Post, inter alia, alleging, therein, that on 27.03.2012, at about 6.10 p.m in the evening, the appellant, herein, taking advantage of there being nobody at her home, committed rape upon her. On receipt of the said FIR, Langkashi Police Out Post, G. D. Entry No.18 dated 02.04.2012, came to be made and the same was forwarded to Bardubi Police Station. On receipt of the said FIR, Bordubi Police Station Case No.22/2012, came to be registered under Section 376 IPC. On conclusion of the investigation in the matter, the police laid charge-sheet against the present appellant as accused under Section 376 IPC.

4. The learned Trial Court vide order dated 26.09.2012, framed a charge against the appellant, herein, under Section 376 IPC, and the same being read over to him, he having pleaded not guilty, Trial commenced in the matter. The prosecution during the Trial had examined Page No.# 3/13

as many as 9(nine) witnesses including the Investigating Officer, in support of its case. The accused was, thereafter, examined under Section 313 of the Code of Criminal Procedure, 1973, during which he had denied the charge leveled against him and had asserted his innocence.

5. The learned Trial Court thereafter, appreciating the evidences coming on record during the Trial, proceeded to acquit the appellant, herein, from the charge framed against him under Section 376 IPC. However, on appreciating the evidence coming or record, offence under Section 354 IPC i.e. the outraging the modesty of the prosecutrix, having found to have been established against the appellant, herein, he came to be convicted under Section 354 IPC. On his such conviction, the appellant was sentenced to undergo rigorous imprisonment of 1(one) year.

6. Mr. P. Kataki, learned counsel for the appellant, by referring to the evidences adduced by the prosecution during the Trial has submitted that perusal of the same would bring to the forefront that the victim was a consenting party and there is no material brought on record to even remotely indicate that the appellant, herein, had assaulted her or used criminal force upon her.

7. Mr. P. Kataki, by referring to the deposition of the PW-6 has submitted that a perusal of the same would bring to the forefront that he had seen the victim (PW4) and the appellant in a compromising position, when he had reached the place of occurrence. It is submitted that the evidence adduced by PW6 would further bring on record that no resistance was seen to have been offered by the victim (PW4) to the appellant, while he had committed the alleged act upon her. He further submits that the victim (PW4) had also not sought help from the PW6, when he had reached the place of occurrence. Accordingly, he submits that the ingredients of Section 354 IPC is clearly absent in the matter and the conviction of the appellant, herein, under the Provisions of Section 354 Page No.# 4/13

IPC would mandate an interference from this Court.

8. Mr. P. Kataki, by referring to the deposition of the prosecution witnesses has submitted that the neighbours had deposed that if there was any hue and cry in the house of the victim, the same would be heard by the neighbours. He submits that no witness deposing in the matter had deposed of hearing of any hue and cry from the victim during the occurrence of the alleged act upon her by the appellant. Accordingly, Mr. P. Kataki, submits that the victim admittedly was a consenting party to the alleged act and accordingly, the conviction of the appellant, herein, under Section 354 IPC would mandate an interference from this Court.

9. Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor, appearing for the State, has submitted that the evidence of the prosecutrix i.e. PW4, having not been dislodged by the appellant, herein, during his cross-examination, the same, has to be considered for the purpose of drawing conclusions with regard to the guilt of the appellant, herein. He submits that the evidence of PW4, had brought on record, the fact that the appellant, herein, had removed her clothes, before performing the alleged act upon her, which was contended to be forcefully committed upon her. He submits that the presence of the appellant in the house of the prosecutrix at the relevant point of time being also evident from the deposition of PW6(Rajesh Mura), the conclusions drawn by the learned Trial Court, with regard to commission of an offence by the appellant, herein, under Section 354 IPC, would not mandate any interference from this Court.

10. I have heard the learned counsel for the parties and also perused the materials available on record.

11. For the purpose of appreciating the submissions of the learned counsel for the parties, as well as the conclusions drawn by the learned Trial Court, the evidences adduced by the prosecution witnesses would be Page No.# 5/13

required to be noticed.

12. PW-1, Sri Bipul Orang, in his deposition had deposed that he knows both the accused and the prosecutrix. He further deposed that towards the end of 2012, Gulam Mura, brother-in-law of the prosecutrix had told him that the appellant had committed improper act with her and in that context, a meeting should be organized after informing the VDP people. Accordingly, he deposed to have informed the VDP President and Secretary and a meeting was organized in front of the house of Genda Mura. It was further deposed that the prosecutrix had come to the said meeting, however, the appellant although called, had not participated, therein. It was deposed that around 35(thirty five) people had participated in the meeting and therein, the prosecutrix was questioned and she stated before the public that the appellant taking advantage of none being present at her home, had committed improper act upon her. As the accused was not present in the meeting, the people gathered, therein, had advised the prosecutrix to inform the Police. Accordingly, PW1 had written the Ejahar for the prosecutrix, upon her instructions and the same was submitted before the police.

During his cross-examination PW1 had stated that near the house of the prosecutrix, the houses of Genda Mura, Lesa Mura and Ladu Mura and the appellant are present. He further deposed that if there is a hue and cry in the house of the prosecutrix, it can be heard by the neighbouring people. The PW1 also deposed during his cross that he had not asked anything about the matter to the prosecutrix and she had also not told him anything.

13. PW-2, Gulam Mura, stated in his deposition that he knew the accused person and that the prosecutrix was his sister-in-law. He deposed that he was told by his related brother Rajesh Mura, that the accused had committed improper act on his sister-in-law. Thereafter, he deposed that Page No.# 6/13

he had asked his sister-in-law about the incident and she said that it was true. Accordingly, PW2 also stated about the convening of a village meeting, wherein, his sister-in-law had stated that she was raped by the accused. The PW2 further deposed that the accused had not come to the meeting, although called, the matter was decided to be informed to the police by the people. Accordingly, the FIR was lodged in the matter.

In his cross-examination, PW2 deposed that Rajesh Mura had informed him that he had seen the prosecutrix after the improper act and at that point of time she was wearing her under garments. He further deposed that Rajesh Mura had also told him that the prosecutrix had required him to stay as a guest in the house. The PW2 further deposed that he does not know as to whether the incident is true or not and that the prosecutrix had worked in the house of the accused about 9(nine) months prior to the date of the incident.

14. PW-3, Sri Kanu Mura, deposed that the prosecutrix is his wife and he knew the accused person. He deposed that on the date of the incident after he had returned from his work the prosecutrix had told him that at around 6.00 p.m, the accused had grabbed her with his hands. The PW3 further deposed that a "Village Mel" was organized and the prosecutrix had stated before the people gathered in the "Village Mel" about the incident and the village meeting advised to inform the police and accordingly, the FIR was lodged.

During his cross-examination he stated that in the public meeting his wife/ prosecutrix stated that, accused had put his hand on her body.

15. PW-4 is the prosecutrix. During her deposition she stated that she knew the appellant who stays near her house and that the appellant had a tea garden, wherein, she used to work. She deposed that on the day of the incident, after coming back from work, she was cooking and at that point of time. i.e. at around 6.00 P.M, the appellant had come to her Page No.# 7/13

house after taking liquor and had sat in her house for some time. She deposed that after sometime the appellant forcefully removed the Mekhela Chador worn by the prosecutrix and took off his clothes as well. She deposed that thereafter the accused had laid her in the kitchen itself and committed improper act upon her. PW4 deposed that she had raised hue and cry in the matter and that upon hearing her hue and cry, Rajesh Mura came to her house and saw the commission of the improper act, however, he left without saying anything and thereafter, the appellant also after wearing his clothes left her house. The PW4 further deposed to the effect that she had offered resistance, but the appellant had not listened to her. PW4 also deposed that she had reported the incident to her husband after he had come back from work and her husband had told the same to the neighboring people and a village meeting was organized. PW4 further deposed that the accused was also called for the meeting and he did not come and upon being asked by the people in the meeting she stated about the improper act committed upon her and in the meeting she was advised to lodge a case. Accordingly, she with the help of PW1, lodged the FIR.

In her cross-examination PW4 stated that she had told her husband about the incident after he had come from his work and she further stated that when the appellant was removing her clothes she was sitting and latter also she was sitting. She deposed that after the appellant removed his clothes, he lifted her a little distance inside her room. PW4 further deposed that the appellant had committed improper act with her for a long time and the appellant remained in her house for about 2 hours. She also deposed that when Rajesh Mura had come to the place of occurrence, the appellant was wearing his clothes and she was sitting near the cooking place. She further deposed that Rajesh Mura told her that she should scold and one meeting has to be organized and then he went away. The PW4 further deposed that she had told the police that, Page No.# 8/13

while she was sitting near the cooking place, the accused forcefully removed her clothes and she reiterated that the appellant had forcefully committed improper act upon her.

16. PW5, Dr. Archana Das, in her deposition has stated that on 02.04.2012, while working as a Senior Medical & Health Officer at Tinsukia Civil Hospical, she had examined the prosecutrix(PW4) and upon her examination she had found inter alia, the laboratory examination of the vaginal smear did not show any spermatozoa. She further opined that there was no sign of recent rape and there was no sign/mark of violence of the private part of the PW4 and/or on other parts of her body.

17. PW6, Rajesh Mura, during his deposition, deposed that he knew the accused and that the house of the prosecutrix and her husband is located near his house. He further deposed that on the date of the incident in the evening he had gone towards the house of the prosecutrix in search of his cows and to drink water, he had called out the prosecutrix. The door of the house of the prosecutrix was half open and he pushed the door and entered the house. On entering the house he saw the prosecutrix was on the floor on her hands and legs and near her, the appellant was standing. He deposed that the prosecutrix at the point of time was wearing petticoat and blouse and the accused was wearing shirt and lungi. He deposed that the appellant had told him not to tell anyone and thereafter he deposed to have left the house. PW6 further deposed that when he saw the accused, he was tying his lungi. He further deposed that he had informed the incident to Gulam Mura, brother-in-law of the prosecutrix and of a meeting being held in the matter after 5 days in the village.

The PW6 was declared a hostile witness and in his cross-examination by the prosecution, he had denied that he had stated before the police that the accused and the prosecutrix was engaged in sexual intercourse. During his cross-examination he further deposed that he saw the Page No.# 9/13

appellant in the house of Kanu Mura and he also saw the prosecutrix lying on the floor on her hand and knees.

18. PW7, Sri Mangu Mura, in his deposition deposed that he knew the appellant and that the prosecutrix is his sister-in-law. He, however, deposed that he does not know about the incident and had heard about the same from Rajesh Mura after about a month from the date of the occurrence of the incident. During his cross-examination he reiterated that the appellant had outraged the modesty of the prosecutrix.

19. PW-8, Tulsi Pradhan, also deposed that he knew the accused as well as the prosecutrix and that he has informed by Rajesh Mura, that the appellant had raped the prosecutrix.

20. PW-9 is the Dulumoni Baruah, the Investigating Officer, deposed that on 02.04.2012, he was In-Charge of Langkashi Police Out Post and on the said date, the prosecutrix had lodged an FIR stating, therein, that on 27.03.2012, while she was alone at her home at around 6.30 p.m, the appellant, herein, had committed rape upon her. He deposed with regard to the manner in which the FIR was so dealt with and also the registration of the case under Section 376 IPC against the appellant, herein. He further deposed that he had taken up the investigation of the case and examined the informant and two witnesses accompanying the prosecutrix, Gulam Mura and Bipul Orang.

Thereafter he deposed that the prosecutrix was sent to the Tinsukia Civil Hospital for medical examination and also forwarded to the Court for recording her statement under Section 164 CrPC. He submitted that after collecting the medical report, charge-sheet against the appellant, herein, was laid. PW9 further deposed that Rajesh Mura, had stated before him that he had seen the appellant and the prosecutrix having sexual intercourse.

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During his cross-examination, PW9 stated that he did not make any investigation regarding the delay of 4 days in lodging the FIR. He deposed that he had recorded the statements of the persons whose house are located near the place of occurrence and the said witnesses had not deposed anything about hearing hue and cry from the house of the prosecutrix. PW9 further deposed that in her statement before the police under Section 161 CrPC, the prosecutrix had not stated that she raised hue and cry at the time of the incident and also that none of the witnesses has stated about any hue and cry being raised in the house of the prosecutrix on the date of the incident.

21. The evidences coming on record in the Trial goes to reveal that the appellant, herein, was present in the house of the prosecutrix on 27.03.2012 at around 6.30 p.m. The depostition of the PW4 i.e. the prosecutrix is to the effect that the accused had come to her house after taking liquor and had forcefully removed her mekhala chador worn by her at that point of time and had also taken off his clothes and had committed improper act upon her.

22. PW1 during his cross-examination had stated that, if there is any hue and cry in the house of the prosecutrix, it can be heard by the neighboring people. The evidences coming on record does not bring to the forefront any material to demonstrate that the neighbors had stated about hearing a hue and cry during the time of the incident involving the prosecutrix and the appellant, herein.

23. The statement of the prosecutrix, further is that Rajesh Mura(PW6) had come to her house at the relevant point of time upon hearing the hue and cry raised by her in the matter. However, the said statement of the prosecutrix is not corroborated by Rajesh Mura(PW6), who had said that he had incidentally gone to the house of the Rajesh Mura(PW6) on the said date. It is relevant to notice that the materials brought on record Page No.# 11/13

demonstrates that the prosecutrix had co-operated with the appellant in the act that was committed upon her by the appellant without raising any hue and cry. Further she had also not sought protection from Rajesh Mura(PW6), when he had gone to the place of occurrence and had seen both the prosecutrix and the appellant together in their house. The evidences brought on record does not reveal that the prosecutrix, herein, had informed Rajesh Mura(PW6) of the appellant committing forceful sexual intercourse with her.

24. The medical evidence coming on record also had not corroborated the statement of the prosecutrix of rape being committed on her and there being any presence of spermatozoa in the vaginal smear taken of the prosecutrix, accordingly, the projection made by the prosecutrix in the matter is doubtful.

25. Accordingly, the charge as framed against the appellant, herein, under Section 376 IPC has not been established beyond reasonable doubt.

26. The learned Trial Court upon appreciating the evidences coming on record had also come to the conclusion that the charge under Section 376 IPC, framed against the appellant, herein, had not been proved beyond reasonable doubt by the prosecution. Accordingly, the Trial Court had acquitted the appellant from the charged so framed against him under Section 376 IPC.

27. In view of the above discussion, this Court is of the considered view that the said conclusion drawn by the learned Trial Court with regard to the charge framed against the appellant under Section 376(1) IPC, is not erroneous.

28. The learned Trial Court having drawn the above conclusion, with regard to the charge framed against the appellant under Section 376 IPC, Page No.# 12/13

without any further discussion proceeded to record a finding to the effect that the appellant, herein, had outraged the modesty of the prosecutrix and thereby, committed an offence under Section 354 IPC. Basing on the said conclusion, the appellant was convicted by the learned Trial Court under Section 354 IPC and sentenced to undergo Rigorous Imprisonment for 1(one) year. The said finding of the learned Trial Court with regard to the appellant outraging the modesty of the prosecutrix and thereby committing an offence under Section 354 IPC has been so arrived at without adducing any reasons for the same and the same is a sudden conclusion.

29. The projections as made in the matter by the prosecutrix when examined in the light of the deposition of PW6 and the medical evidence brought on record by the PW5, it is clear that there was a consensual act between the appellant and the prosecutrix in the matter and there was no allegation leveled by the prosecutrix of the appellant, herein, using criminal force upon her with the intention to outrage or knowing it to be likely that he will thereby outrage her modesty. Further, the projection made by the prosecutrix of having raised hue and cry in the matter has not been corroborated by the other witnesses. The prosecutrix is also not found to have raised any hue and cry even when PW6 had come to the place of occurrence. Accordingly, the materials brought on record does not bring to the forefront any material to satisfy the ingredients of Section 354 IPC.

30. In view of the above discussion, this court is of the considered view that the conviction of the appellant under Section 354 IPC for the reasons assigned, hereinabove, by the learned Trial Court would not be sustainable. Accordingly, the Judgment and Order dated 12.08.2013, passed by the learned Sessions Judge, Tinsukia, in Sessions Case No.222(T)/2012, convicting and sentencing the appellant under Section 354 IPC is set aside. The appellant is acquitted of charge under Section Page No.# 13/13

354 IPC. The appellant having been allowed to remain on previous bail by this Court vide order dated 07.11.2013 in Crl.M.C.No.843/2013, the bail bond stands discharged.

31. With the above observations and directions, the instant Appeal stands allowed.

JUDGE

Comparing Assistant