[Cites 12, Cited by 0]
Gauhati High Court
Page No.# 1/24 vs State Of Assam And Anr on 17 March, 2026
Page No.# 1/24
GAHC010135942024
2026:GAU-AS:3874
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./219/2024
NRIPEN RABHA
S/O HABIRAM RABHA,
VILL.- OUGURI, P.S.- CHHAYGAON, DIST.- KAMRUP, PIN- 781124, ASSAM.
VERSUS
STATE OF ASSAM AND ANR.
REP. BY PUBLIC PROSECUTOR.
2:BHADRESWAR RABHA
S/O LATE CHANDRA RABHA
VILL.- BHERBHERI
P.S.- CHAYGAON
DIST.- KAMRUP
PIN- 781124
Advocate for the Petitioner : MR. K R PATGIRI, MR G SARMA
Advocate for the Respondent : PP, ASSAM, DR. P AGARWAL, AMICUS CURIAE(R-2)
Linked Case : Crl.A./222/2024
JIBAN DAS
S/O NABAB DAS
VILL.- TAKARADIYA
P.S.- CHAYGAON
DIST.- KAMRUP
PIN- 781124
ASSAM.
Page No.# 2/24
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PUBLIC PROSECUTOR.
2:BHADRESWAR RABHA
S/O LATE CHANDRA RABHA
VILL.- BHERBHERI
P.S.- CHAYGAON
DIST.- KAMRUP
PIN- 781124.
------------
Advocate for : MR. K R PATGIRI
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
Linked Case : Crl.A./223/2024
SONE RABHA @ SONESWAR RABHA
BENUDHAR RABHA
VILL.- OUGURI
P.S.- CHAYGAON
DIST.- KAMRUP
ASSAM.
VERSUS
STATE OF ASSAM AND ANR.
REP. BY PUBLIC PROSECUTION.
2:BHADRESWAR RABHA
S/O LATE CHNADRA RABHA
VILL.- BHERBHERI
P.S.- CHAYGAON
DIST.- KAMRUP
PIN- 781124.
------------
Advocate for : MR. K R PATGIRI
Advocate for : PP
ASSAM appearing for STATE OF ASSAM AND ANR.
Page No.# 3/24
BEFORE
HON'BLE MR. JUSTICE PRANJAL DAS
Advocated for appellants:
Mr. K. R. Patgiri,
Mr. B. G. Sarma, Advocate
Advocate for Respondents:
Mr. P. Borthakur, learned Addl.P.P
Dr. P. Agarwal, Amicus Curiae
Date on which judgment is reserved : 27.01.2026
Date of pronouncement of judgment : 17.03.2026
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been Pronounced? : Yes
JUDGMENT & ORDER (CAV)
1. Heard Mr. K. R. Patgiri and Mr. B.G. Sarma, learned counsel for the
appellants. Also heard Mr. P. Borthakur, learned Additional Public
Prosecutor for respondent No.1 and Dr. P. Agarwal, learned Amicus Curiae
appearing for respondent No.2.
2. The three criminal appeals herein are being disposed of by this
common judgment and order. All the three criminal appeals have been
preferred by the respective convict appellants against the judgment dated
05-06-2024 and order of sentence dated 07-06-2024 passed by the
learned Special Judge (POCSO), Kamrup, Amingaon in Special (POCSO)
Page No.# 4/24
Case No. 25/2017, whereby all the three convict appellants were convicted
under section 6 of the POCSO Act and sentenced to undergo rigorous
imprisonment for 10(ten) years and pay a fine of Rs. 5000/- in default
undergo R.I. for 2(two) months.
3. Criminal Appeal No. 219 of 2024 has been preferred by convict
appellants namely, Nripen Rabha; Criminal Appeal No. 222 of 2024 has
been preferred by convict appellant namely, Jiban Das and Criminal Appeal
No. 223 of 2024 has been preferred by convict appellant namely, Sone
Rabha @ Soneswar Rabha.
4. The prosecution case in brief is that on 31.01.2013 at about 10 PM
when the 14 year old daughter of the informant was alone in her house
the convict appellants entered into her house and dragged her out and
committed rape upon her. With these allegations an FIR was lodged at the
police station on 31-01-2013, whereupon Chhaygaon P.S. Case No. 26 of
2013 was registered under section 376(g)/307/379 IPC and investigation
started. Upon completion of investigation, charge-sheet was submitted
against the convict appellants under section 376D/307 IPC r/w section 4
of the POCSO Act.
5. Subsequently after completion of usual formalities the learned trial
court framed charges against the three convict appellants under section 6
of the POCSO Act r/w section 307 of IPC. The charge being denied by the
accused persons. The trial commenced during which the prosecution
examined 9(Nine) witnesses including the victim MO and IO. Thereafter,
the accused persons were examined under section 313 CrPC.
Page No.# 5/24
6. The defence adduced the evidence of 3(three) witnesses. After
conclusion of trial, the learned trial court convicted and sentenced all the
three accused persons as mentioned above. Aggrieved by the same the
three convict appellants, as mentioned above, have preferred the instant
three appeals which as mentioned above are being disposed of by this
common judgment and order.
7. The learned counsel for the convict appellants has taken the Court
through the evidence of the prosecution witnesses adduced during the
trial. It is submitted that though it is mentioned in the FIR that the
informant, who is the father of the victim had found the victim
unconscious in the field but in the testimony of the victim as well as the
testimony of the said informant, it is stated that the victim had come back
home after the incident. It is submitted that this is an important
contradiction between the FIR and the testimony of PW-1.
8. It is also submitted that the medical report indicates that there
were no injuries found on the private parts of the victim and that the DNA
particulars also do not match as per the testimony of the forensic witness.
9. The learned counsel for the appellants has taken the court through
the testimony of the medical witness PW-6 and submitted that though the
doctor has indicated the margin of age of the victim basing the same upon
the radiological examination conducted by one Dr. M. C. Das, but that, the
said report or the radiological report has not been exhibited during the
trial.
10. Regarding the age of the prosecutrix, it is submitted by the
Page No.# 6/24
learned counsel that no birth certificate has been seized and the projected
age of the victim is not based on any documentary evidence. Relying on
decision of this Court in the case of Nakul Kalita vs. State of Assam
reported in 2025(1) GLT 879, it is submitted that if such evidence
regarding the age of the prosecutrix is merely by way of statements of
the witnesses, the same should not be relied upon. It is submitted that
the FIR of the case has also not been exhibited.
11. It is submitted by the learned counsel for the appellants that the
main witnesses are the victim and her parents and they are interested
witnesses. Summing up his submissions, the learned counsel for the
appellants submits that there are infirmities in the impugned judgment
and order passed by the learned Trial Court and he prays for interference
with the same and acquittal of the convict appellants.
12. Ms. Pooja Agrawal, learned Amicus Curiae appears on behalf of the
informant has taken the Court through the testimony of the victim, her
brother and her parents and submitted that the testimony of the victim is
consistent and reliable.
13. Referring to the testimony of PW-6, the doctor, it is submitted that
upon examination of the victim, the doctor also found tenderness in the
private parts, thereby lending corroboration to the allegation of sexual
assault. It is submitted that such tenderness cannot be due to a fall.
14. Referring to the relevant portions of the judgment, it is submitted
by the learned Amicus Curiae that with regard to the age of the victim,
the medical evidence clearly indicates her to be below 18 years, including
Page No.# 7/24
the margin of two years incorporated therein. Moreover, the statements of
the witnesses are consistent regarding her age.
15. Taking the Court through the testimony of the three witnesses who
have adduced evidence on behalf of the defence, learned Amicus Curiae
submits that all the three defence witnesses have expressed their
ignorance as to whether the accused persons had come to the house of
the victim and committed the offence as alleged. It is submitted that the
FIR is not meant to be an encyclopedia and that the evidence adduced
during the trial is more important.
16. Summing up her submissions, the learned Amicus Curiae
representing the informant/victim, submits that the learned trial court has
rightly convicted and sentenced the accused persons and that the
same may be upheld and confirmed.
17. Mr. Borthakur, learned Additional Public Prosecutor, supports the
arguments of the learned Amicus Curiae and he submits that the
prosecution has been successful in proving the foundational facts, where
after the burden of proof shifted to the accused person during the trial
and that the accused persons were unable to successfully rebut the said
presumption against them.
18. Supporting the submissions of the learned Amicus Curiae in this
regard, the learned Additional Public Prosecutor submits that by the
standard of proof applicable, the prosecution has been able to prove and
drive home the foundational facts triggering the shifting of the burden
upon the accused during the trial.
Page No.# 8/24
19. With regard to the contention regarding some infirmities in the
investigation, it is submitted by the prosecution as well as the learned
Amicus Curiae that the previous statements of the prosecutrix and her
related witnesses were not put to them during cross-examination
and therefore, non-examination of the first investigating officer has not
caused any prejudice to the defence.
20. Summing up the submissions, the prosecution contends that there is
no merit in the appeal and that the same may be dismissed by
upholding the judgment and order.
EVIDENCE
21. PW-1, the prosecutrix stated in her deposition that the informant
was her father and she knows the accused persons. She stated that she
was 14 years old at the time of the incident which took place on 30 th
January, 2013 at about 10 p.m. She testified that at the relevant time she
was sleeping in her house with her younger brother Rajkumar Rabha and
her parents had gone to attend a meeting in the village. She further
testified that thereafter the accused called her from outside and asked her
to be present in a village meeting which was going on, whereupon she
opened the door a little but refused to go with them as it was too late.
However, at that time the accused persons pushed the door and entered
their house. Thereafter, accused Nripen Rabha closed her mouth with his
hand and the three accused persons pulled her forcibly and took her to a
nearby paddy field where they tore her wearing clothes and made her
completely naked. PW-1 testified that she shouted but accused Sone
Rabha pressed her mouth and stopped her from shouting. Thereafter,
Page No.# 9/24
Sone Rabha forcibly did sexual intercourse with her, where after accused
Jiban and Nripen committed forceful sexual intercourse upon her against
her will. PW-1 testified that the accused persons then threatened to kill
her if she shouted and if she disclosed the matter to anyone and then they
went away leaving her in the field. She also found that her two golden
earrings were missing and she returned to her house crying. PW-1 further
testified that her parents came around 12 midnight and she told the
incident to them and on that very night, her parents informed the
Gaonburah Santa Raba over phone and on the next day, a village meeting
was held regarding the incident, but the accused persons were not
present in the meeting as they fled away on the night of the occurrence
itself. Subsequently, father of the prosecutrix lodged the FIR. PW-1 stated
that police recorded her statement, got her medical examination done and
also took her before the Magistrate for recording her statement. She
proved her statement before learned JMFC as Exhibit-1 and her signatures
thereon as Exhibit-1(1) and Exhibit-1(2).
22. During cross-examination, PW-1 stated that the house of Debo
Rabha and other villagers were located a little distance away from the
place of occurrence. She denied the suggestion that the accused persons
did not have forcible sexual intercourse with her and she also denied that
her father lodged a false case against the accused persons. She stated
that at the time of the incident, she was studying in school in 9 th
standard. She denied that she had not passed matric examination. She
denied that she had deposed falsely. She denied the suggestion that the
accused persons did not forcibly pull her from the house on the night of
the occurrence.
Page No.# 10/24
23. PW-2 is Bhadreswar Rabha, the informant of the case and father of
the victim girl. He stated in his deposition that he knew the accused
persons and the victim was aged about 14 years at the time of the
occurrence which took place at around 10 PM at which time he and his
wife were not at home and had gone to attend a village meeting in a
mandir. He further testified that at that time the girl, with her 12 year old
brother Rajkumar Rabha was at home and at around 10.30/11 PM when
they returned home, his victim daughter told him that the accused
persons Soneswar Rabha, Nripen Rabha and Jiban Das had entered the
house by breaking open the bamboo door while she was sleeping and they
pulled her by her hands and forcibly took her to a nearby paddy field
having a pond. PW-2 stated that he was told that thereafter the accused
persons raped her and left her on the field and she came home herself
and took a bath. PW-2 testified that it was winter season and when they
met her she was shivering. PW-2 testified that he informed the incident to
village headman, President and Secretary of the village and thereafter,
visited the place of occurrence where they found the sandal and innerwear
of the prosecutrix in the field and brought it home. He testified that on the
next day, a village meeting took place but no decision could be taken as
the accused persons fled away from there. Subsequently, he lodged the
ejahar in Chhaygaon police station by putting his thumb impression and
police recorded his statement. He testified that police also seized the
wearing clothes of the prosecutrix and he put his thumb impression on the
seizure list.
24. In cross-examination, he admitted that he had not seen the incident
by himself. He denied that he had sent the accused persons to his house
Page No.# 11/24
to bring the prosecutrix in a meeting. He stated that police did not seize
the broken bamboo door of their house. He denied that the incident had
taken place by the side of Bherbheri river and not by the side of a pond.
He stated that the houses of Dibu, Siba, Badak and Saruman are located
near the place of occurrence. He denied not having stated before the
police about informing the incident to the village headman, President and
Secretary of the village. He denied the suggestion that he had deposed
falsely.
25. PW-3 Rajkumar Rabha is the younger brother of the victim girl. He
stated during his deposition that he knew the accused persons and that
the incident had taken place at around 10 PM about five years prior to his
date of deposition. He testified that at the time of the occurrence, his
parents were not at home having gone to attend a village meeting and he
was at home with his sister who was aged 13 years and he was aged 12
years. He further testified that when they were sleeping, the accused
persons entered their house by breaking the bamboo door and they pulled
his sister by hands and forcibly took her outside. He further testified that
when he got up and came outside, the accused persons pushed him inside
the house and out of fear he stayed inside. He further testified that at
around 10/11 PM, his sister returned home crying and told him that
accused persons took her to a nearby field and raped her. He further
testified that he had seen that her clothes were torn and she asked him to
get some water from the well and she took a bath. It was winter season.
At around 1 AM, when his parents returned, he and his sister informed
about the incident whereupon they informed about the same to the village
headman and neighboring people. On the next day, a village meeting was
Page No.# 12/24
held and thereafter, his father lodged the case.
26. In cross-examination, he stated that the houses of Mohan Rabha,
Kajiram Rabha, late Saruman were located near their house. He admitted
that he had not seen the incident by himself. He stated that police did not
seize the broken bamboo door of their house. He further stated that he
did not attend the village meeting as he was very small. He stated that the
place of occurrence was nearby their house. He denied the suggestion
that he had deposed falsely.
27. PW-4 Anima Rabha is the wife of the informant and mother of the
prosecutrix. In her deposition, she stated about knowing the accused
persons. She testified that at the time of the incident her daughter was
aged 14 years and the incident took place in 2013 at around 10 PM at
which time she and her husband were not at home and had gone to
attend a village meeting in a temple. She further testified that the victim
girl was at home with her 12 year old brother Rajkumar Rabha. She
further testified that at around 11.30 PM when they returned home her
daughter told her that the accused persons entered their house by
breaking open the bamboo door while she was sleeping and then they
pulled her by her hands and forcibly took her to the nearby paddy field by
the side of a pond. She further testified that the accused persons pushed
their son when he got out and came outside the house. PW-4 testified that
the accused persons tore the wearing apparels of the prosecutrix and
raped her and left her in the field. It is testified that the accused persons
bit on her face, chest and injured her and her golden earnings were also
pulled off from her ears. After the incident, the victim came home herself
Page No.# 13/24
and the incident was informed to the village headman and other villagers
and on the next day village meeting took place but no decision could be
taken as the accused persons fled away. Subsequently, her husband
lodged an FIR before the police. The police seized the wearing clothes
being top and underwear of the prosecutrix by seizure list which she
proved as Exhibit-2 and her signature thereon is Exhibit 2(1). She proved
as a Material Exhibit-A the seized materials which she saw in the court at
the time of deposition.
28. In cross-examination, she stated that she was in Ouguri temple at
the time of occurrence and did not see the incident by herself. She stated
that there were no houses near the place of occurrence. She denied that
the incident took place by the side of Bherbheri river and not by the side
of a pond. She also stated that there are houses of Dibu, Siba, Badak,
Saruman near their house. She denied that she had deposed falsely in
favour of her daughter.
29. PW-5 is ASI Amanur Rahman who stated that on 01-02-2013 he was
working as attached officer at Chhaygaon police station on which day at
around 12.40 AM, informant Bhadreswar Rabha lodged an ejahar in the
police station, whereupon, Chhaygaon P.S. Case No. 26 of 2013 under
section 376(g)/307/379 IPC was registered and he was directed to
conduct a preliminary investigation. Testifying further, PW-5 stated that he
recorded the statements of witnesses, including that of the informant, his
wife and of the victim in the police station. That, thereafter, he visited the
place of occurrence with other staff, prepared sketch map and recorded
the statements of other witnesses. He sent the victim to GMCH for medical
Page No.# 14/24
examination and also got her statement recorded before court on 01-02-
2013. He stated that on 05-02-2013, the accused surrendered before the
Chhaygaon police station as per order of the court. He proved the sketch
map as Exhibit-3 and his signature thereon as Exhibit-3(1). PW5 stated
that he seized the wearing apparels of the victim by Exhibit-2 seizure list
where Exhibit 2(1) is his signature. He collected the blood samples of the
accused persons and handed them over to the O/C, Chhaygaon along with
the case diary. He stated that after completion of his preliminary
examination, he handed over the case diary to the O/C of the police
station and subsequently SI, Bhaskar Malla Patowary collected the FSL
report. He stated that he recognizes the signature of the Bhaskar Malla
Patowary SI. He stated that charge-sheet was submitted against all the
three accused persons under section 376 D/307 IPC read with section 4 of
the POCSO Act. He proved the charge-sheet as Exhibit-P4 and as Exhibit-
P4(1) the signature of SI Bhaskar Malla Patowary stating that he
recognizes the same.
30. In cross-examination, PW-5 stated that he recorded the statements
of the victim and her parents. It is stated that the residences of people are
a bit far from the place of occurrence. He also stated that he has not
recorded the statements of Mohan Rabha, Gajiram Rabha, Saruman Rabha
and Deba Rabha and not seized the door broken open by the accused
persons. He stated about sending the blood samples to the FSL and
subsequently collecting the FSL report. He stated that the statements of
independent witnesses were not recorded. He stated about seizing the
wearing apparels of the victim as given by the victim in the presence of
her parents. He stated that he had not seized any birth certificate of the
Page No.# 15/24
victim. He denied that he had not investigated the case properly and
denied that he had wrongly charge-sheeted the accused persons.
31. PW-6 Dr. Tribeni Athpuria stated that on 01-02-2013 she was posted
in the Forensic Medicine Department of GMCH and on that day she
examined the victim in connection with Chhaygaon P.S. Case No. 26 of
2013. She testified that victim was escorted and identified by WPC-1227
Purnima Das and the victim's mother. She stated that the age of the victim
was stated as 13 years. She further stated that the victim narrated the
history that - on 30.01.2013 at 10 PM , when she was at home, three boys came
and knocked the door and told that her father and mother were being beaten in a
meeting and the boys opened the door forcefully and took her to a nearby space and
had sexual intercourse with her. PW-6 stated that upon examination of genital
organs she found a tear present at 5 o'clock and 8 o'clock position and the
margins were swollen and tender. She also found a linear abrasion over
left cheek 0.3 cm in length, 2 cm from midline and 7 cm below orbit which
is brown in colour. She also found a linear abrasion below nostril of left
side 1 cm from midline and 7 cm below orbit and brown in colour. PW-5
stated that radiological examination was done and based on the clinical,
physiological and laboratory investigation, including radiological
examination it was opined that her age is above 14 years and below 16
years. There was no evidence of recent sexual intercourse. There is
evidence of injury on her body. There is no evidence of pubic hair or
foreign particulars. Exhibit-5 is her report and Exhibit- P-5(1), P-5(2), P-
5(3) and P-5(4) were her signatures.
32. In her cross-examination, she stated that the victim was examined
on the next day of the incident. She stated that the injury she mentioned
Page No.# 16/24
were in the form of abrasion over left cheek 0.3 cm in length, 2 cm from
midline and 7 cm below orbit which is brown in colour; linear abrasion
below nostril of left side 1 cm from midline and 7 cm below orbit and that
the same can happen if somebody falls. She stated that she did not find
any specific injury on the private part of the victim but it was tender. A
court question was asked that her mention of tears refers to which part of
the body to which PW-6 replied that the tear present at 5 o'clock and 8
o'clock margin are swollen and tender is for hymen. To a court question as
to what no recent sexual intercourse means - stated that as per medical
jurisprudence, when swab is taken within 24 hours of the incident and
there is absence of spermatozoa - it is mentioned as no recent sexual
intercourse.
33. PW-7 SI Pranab Kumar Dekha deposed that on 04-11-2014 while
being posted as OC of Chhaygaon Police Station. He was entrusted with
the further investigation of the case but the investigation was nearly
completed and only collection of FSL report was left, which he collected
and handed over the same along with CD to C.I. Chhaygaon for necessary
action.
DISCUSSION
34. In her examination-in-chief, the prosecutrix as PW-1 has implicated
all the three appellants mentioning their names and as being involved in
breaking open into their house, pulling her away to a nearby field and
committing rape upon her one after the other. She has exhibited her
statement recorded before learned JMFC and upon perusing the said
statement, I find that it is very much similar to her deposition during the
Page No.# 17/24
trial in as much as in the said statement also - she has stated about her
parents going for a meeting at night and she was with her younger
brother when the three accused persons called her to go to the meeting
and upon her refusal, pulled her out of the house. She also stated in the
statement that thereafter the accused persons took her to a field and
committed rape upon her one after the other. Thus, I find that the
testimony of the victim as PW-1 and her statement record before learned
Magistrate during investigation tally with one another and lend
corroboration to one another regarding the nature of the incident and the
implications of the three appellants by name.
35. Upon perusing the cross-examination of the victim PW-1, I am of
the opinion that her testimony in examination-in-chief has not been
demolished in cross-examination nor her testimony in cross-examination
reveal any contradictions with her statement before the learned
Magistrate. She has specifically denied the suggestion that the accused
persons did not forcibly pull her out of the house and denied that the
accused persons did not commit forceful sexual intercourse upon her. She
denied the suggestion that she had deposed falsely. Thus, I find that the
testimony of the prosecutrix as PW-1 has not only stood its ground in
cross-examination and not revealed any contradictions - but the
prosecutrix has also reiterated about the incident in her cross-
examination.
36. PW-2 is the father of the victim and informant of the case while PW-
4 is her mother. In her testimony, PW-1, the prosecutrix has stated about
reporting the incident to her parents when they came back from the
Page No.# 18/24
meeting. This is corroborated by both PW-2 and PW-4 about being
reported regarding the incident by their daughter. Therefore, the
knowledge of PW-2 and PW-4 regarding the nature of the incident is on
the basis of what was reported to them by their daughter, the victim. In
fact, both PW-2 and PW-4 have admitted in cross-examination that they
have not seen the incident. PW-2 and PW-4 also denied the suggestion
that they have deposed falsely in favour of their daughter. The nature of
the incident, the testimony of the prosecutrix in her deposition and also in
her statement before magistrate finds corroboration from the testimony of
her parents as PW-2 and PW-4. In her testimony, PW-1, the victim has
stated about the presence of her younger brother, aged about 12 years,
with her in the house at the time of the incident. The said younger brother
has deposed as PW-3 and at the time of his deposition he is stated to
have been aged 18 years. His testimony corroborates the testimony of his
sister. He has also stated about being present at home with his sister
when their parents had gone to attend a village meeting and about the
accused persons forcibly entering their house and pulling out her sister. He
has also deposed that he tried to resist but he was pushed away. He has
stated about his sister returning home crying and both of them reporting
the incident to their parents when they returned, thereby corroborating
the testimony of their parents in this regard. PW-3, brother of the
prosecutrix, denied the suggestion in cross-examination that he had
deposed falsely. His testimony has stood its ground and remained
unshaken in cross-examination.
37. I find that even the testimony of PW-2 and PW-4, the parents of the
victim, stood their ground in cross-examination and was not shaken or
Page No.# 19/24
demolished. Thus, I find that the testimony of the prosecutrix stood its
ground in cross-examination and received due corroboration from her
statement under section 164 CrPC. This evidence of the prosecutrix
received due corroboration from the testimony of her brother who is an
eyewitness to part of the incident and supported the testimony of the
victim that the accused person pulled her out of the house at night when
their parents were absent. It has also emerged from the testimony of PW-
2, father of the victim and informant of the case that after coming to know
about the incident, he along with others of the village went to the place of
occurrence and recovered the sandal and innerwear of the prosecutrix and
brought it home. In this regard, the seizure list pertaining to the same has
been exhibited as Exhibit-2 by PW-5, one of the investigating officers of
the case. And he has also stated about seizing the wearing apparels of the
victim and the police officer also exhibited his signature on the seizure list.
38. The testimony of PW-6, the MO lent further corroboration to the
evidence of the prosecution side in as much as upon examination she
stated about tears in the hymen and with the margins being swollen and
tender. The incident is stated to have taken place on 30.01.2013 and the
victim was examined on 01.02.2013. And in her cross-examination, PW-6,
MO has also stated that she examined the victim on the next day of the
incident. Apart from finding tears in the hymen with margins swollen and
tender, she also found abrasions on her cheek, nostril. And in cross-
examination, she has also indicated that there is evidence of injury on her
body as described by her. Though she stated about no evidence of recent
sexual intercourse, but to a question by the court, she has replied that the
same means that when medical swab is taken within 24 hours of the
Page No.# 20/24
incident and there is absence of spermatozoa, it is mentioned as no recent
sexual intercourse.
39. The testimony of PW-6, MO about finding tears in the hymen with
margins swollen and tender is an extremely important piece of evidence in
favour of the prosecution, especially when it is clear that the victim was
examined on the next day of the incident. Thus, it can be said that the
testimony of the MO has not been demolished in cross-examination.
Therefore, the medical evidence is definitely indicative of a sexual activity
by way of assault and lends crucial and significant corroboration to the
testimony of PW-1, the victim, her statement under section 164 CrPC, the
testimony of her brother and that of her parents.
40. The three defence witnesses examined on behalf of the defence
have tried to make out a story that a village meeting was called regarding
accusation upon one Kajiram Rabha of stealing money from the informant.
And as the money could not be found in the house of Kajiram Rabha, he
felt humiliated and called for the meeting and in the meeting, some
youths assaulted the informant.
41. The defence witnesses have tried to make out a story that in the
backdrop of this alleged meeting and assault upon the informant, he has
lodged a false case upon the accused person. However, in the cross-
examination of the prosecution witnesses, especially during the
examination of PW-2 and PW-4, the parents of the victim, no question was
put in cross-examination regarding any such false implication. Moreover, in
the context of the findings of the medical officer and the concomitant
medical evidence adduced during the trial, it can be safely said that the
Page No.# 21/24
projected defence story of false implication is not convincing.
42. Regarding the age of the victim, it has been consistently revealed
from the prosecution evidence that the victim was aged 14 years at the
time of the incident. In her testimony, the victim has stated her age to be
14 years. Both her parents have stated her age to be 14 years. To
corroborate the said evidence, the medical evidence upon examination has
stated that her age is between 14 and below 16 years. Therefore, in my
considered opinion, there is no dispute about the minority of the victim
and about being less than 18 years at the time of the incident. The
learned counsel for the appellants has referred to a decision of Nakul
Kalita vs. State of Assam & Anr., reported in 2025 (1) GLT 879 and
in Para 42 of the said decision, it was held as follows -
"42. In view of the above, we are also of the considered opinion that in
absence of any documentary evidence or medical opinion regarding the
age of the victim girl, only the oral testimony of witnesses as regards the
age of the victim is a very weak piece of evidence to come to the finding
regarding the correct age of the minor victim, whose age is stated to be
16 to 16 years by the witnesses."
43. In my considered opinion, the said decision would not come to the
aid of the appellants side, because in the instant case, the oral testimony
of the prosecution witnesses, including the victim herself, regarding her
age is also supported by the medical evidence regarding her age.
44. PW-9, Dr. Manalisha Choudhury, is a forensic official who has
testified regarding the DNA examination. She deposed that the DNA
exhibits in connection with this case were examined. The forensic opinion
Page No.# 22/24
was that the DNA found in the underwear of the victim did not match with
the DNA of the other three samples, which were from the blood samples
collected from the three appellants.
45. In the impugned judgment, the learned court has discussed this
aspect of the matter and held that despite the negative DNA findings - in
view of the cogent and positive testimony of the victim supported by the
medical evidence and the testimony of other witnesses - the prosecution
case could not be dismissed. The learned trial court has referred to the
decision of the Hon'ble Supreme Court in the case of Sunil v. State of
Madhya Pradesh, reported in (2017) 4 SCC 393. Para 43.4 of the said
judgment referred to by the learned trial court may be reproduced herein
below -
"43.4. From the provisions of Section 53-A of the Code and the decision
of this Court in Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130
it does not follow that failure to conduct the DNA test of the samples
taken from the accused or prove the report of DNA profiling as in the
present case would necessarily result in the failure of the prosecution
case. As held in Krishan Kumar (para 44), Section 53-A really "facilitates
the prosecution to prove its case". A positive result of the DNA test would
constitute clinching evidence against the accused if, however, the result of
the test is in the negative i.e. CRRFC-01 & CRA-2151 of 2018 favouring
the accused or if DNA profiling had not been done in a given case, the
weight of the other materials and evidence on record will still have to be
considered. It is to the other materials brought on record by the
prosecution that we may now turn to."
46. I am in agreement with the opinion of the learned trial court on this
Page No.# 23/24
aspect. In view of the testimony of the prosecutrix, corroborated by her
section 164 CrPC statement; the testimony of her brother who was part
eyewitness; the corroboration rendered by the medical findings - it has to
be held that the prosecution has successfully proved the factum of sexual
assault upon the victim by the appellants. In any case, as far as the DNA
evidence is concerned, it is not stated that the DNA sample which was
taken from the innerwear of the victim and matched with the blood
sample of the convict appellants pertain to any DNA/body material of the
appellants.
47. The DNA sample taken from the innerwear of the victim could be
her DNA as well. And not necessarily the DNA belonging to any or more of
the appellants. There is no error in my opinion in the appreciation of
evidence of the Learned Trial Court on the aspect of the DNA evidence.
And I do not find sufficient force in the contentions of the learned counsel
for the appellants in this regard.
48. In the given facts and circumstances and on the basis of the
evidence on record, I come to the considered opinion that there is no
infirmity in the finding of the learned trial court that the accused persons
committed penetrative sexual assault upon the victim girl who was a minor
aged below 18 years. Therefore, the conviction of the appellants under
section 6 of POCSO Act, 2012 is hereby upheld and confirmed.
49. The appellants have been imposed with a substantive sentence of
10 (ten) years rigorous imprisonment. The nature of the crime is heinous
in as much as - a minor girl was alone in her home with her even younger
brother in the night, in the absence of her parents and the accused
Page No.# 24/24
persons pulled out the girl and committed a rape upon her one after the
other. There is absolutely no reason to modify the sentence on the lower
side and accordingly the sentence imposed upon the appellants is also
confirmed.
50. Consequently, the impugned judgment dated 05.06.2024 and
sentence dated 07.06.2024 passed by the learned Special Judge (POCSO)
Kamrup, Amingaon in Special (POCSO) Case No. 25/2017, is upheld and
confirmed.
51. Resultantly, the appeal is found to be devoid of merits and is
dismissed.
JUDGE
Comparing Assistant
