[Cites 8, Cited by 0]

Gauhati High Court

Crl.A./349/2024 on 23 March, 2026

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GAHC010215962024




                                                                          2026:GAU-AS:4173

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

                                       Crl.A./349/2024

       Uttam Das S/O. Late Gobindo Chandra Das,
       A Resident Of Mission Para, Tinsukia,
       P.O. And P.S. Tinsukia, Dist. Tinsukia, Assam,
       Pin-786125.
            Versus
1:     The State Of Assam And Anr Rep. by the PP, Assam.
2:      Riya Barma D/O. Sri Laxmi Prasad Barma R/O. Vill. Pengiri Chariali, P/O And P/S
        Pengiri Dist.- Tinsukia, Assam,      Pin-786174


                                          BEFORE
                  HON'BLE MR. JUSTICE RAJESH MAZUMDAR


       Advocate for the petitioner(s):          Mr. B K Das, Mr H P Guwala,
                                               Mr. S D Purkayastha,
                                                Mr H P Neog


       Advocate for the respondent(s):          Mrs. P B Bordoloi (Legal Aid

Counsel, R-2.


     Date on which judgment was reserved : 17.03.2026

Date of pronouncement of judgment           : 23.03.2026

Whether the pronouncement is of the : NA
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operative part of the judgment?

Whether the full judgment has been       : Yes

pronounced?

                           JUDGMENT AND ORDER (CAV)

The present appeal arises out of the judgment dated 13th day of September, 2024 pronounced by the learned Sessions Judge, (FTC-2) Tinsukia in Sessions Case No. 13 (T) of 2021) arising out of Tinsukia P.S. Case No. 739/2019, convicting the appellant under Section 376, IPC and sentencing him to undergo Rigorous Imprisonment for 10 years for his offence u/s. 376 IPC, and to pay a fine of Rs. 10,000/- in default to undergo S.I. for another 6 months. The fine amount, if realised, was to be paid to the victim. The accused was entitled to have the previous custodial period set off against the total period of conviction, as per section 428 Cr.P.C.

2. The case of the prosecution's case was that in December 2018, when the victim, the daughter of the informant, went to stay in the house of the accused, the accused established a physical relationship with her by alluring her. It is further stated that the victim became pregnant as a result of the physical relationship established. The father of the victim had lodged an FIR, and Tinsukia P.S. case No. 739/2019 u/s 376 IPC was registered against the accused. On completion of the investigation, the I.0. submitted a charge sheet against the accused Uttam Das u/s. 376 IPC.

3. Formal charge against the accused under section 376 IPC vide was framed by order dated 05/01/2022. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. The prosecution side adduced evidence from four witnesses. The defence plea was one of total denial, and the defence did not adduce evidence.

4. Learned Trial Court framed the following point for determination:

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(i) Whether the accused in this case, in December 2018 at Mission Para under Tinsukia P.S., committed rape on the victim Kumari Riya Verma, the daughter of the informant, against her will and thereby committed an offence punishable u/s. 376 IPC?

5. As noted above, the Learned Trial Court held the answer to the point of determination in the affirmative, convicted the accused, and passed sentence. The appellant herein has assailed this finding of the Learned Trial Court.

6. Evidence Led By The Prosecution:

PW1:

The victim of this case deposed as the PW1. She has stated that the informant is her father and the accused is her uncle. She has stated that the incident took place in December 2018 at the accused's house. The victim has stated that 3/4 days before the incident, she visited the house of one of their relatives in Dibrugarh, and at the invitation of the accused and her cousin, she went to the house of the accused at Tinsukia. She has stated that on the first day, she slept with the son of the accused in a room where there was no door. At night, when the son of the accused had left the room, the accused came to her sleeping room and touched different parts of her body and also asked for a kiss. The victim resisted and said that she would report the matter to her mother and to the police. But the accused gagged her mouth with his hand and committed rape on her and left the room. In the coming days, as per the victim, the accused used to give her chocolate and tried to feed her forcibly. She stated that after about 3 /4 days, when she was sleeping in the room, the accused had physical intercourse with her without her knowledge. She has stated that the next morning, she felt some physical pain in her vagina. The victim has stated that the accused repeated the same incident against her for a few days. She returned home after about 15/20 days, and her menstrual cycle had stopped. Her mother took her for a medical check-up, where she was detected to be pregnant, and then she narrated the story to her mother. Thereafter, her father lodged this case. The victim has proved her statement given before Page No.# 4/13

the magistrate as P.Ext. 1, wherein P.Ext. 1(1) is her signature.

During cross-examination, the victim stated that she had not told the police before that she had stayed at the accused's house in the last part of 2018. During that period, sometimes at about 9/10 p.m., the accused put his hands on her chest and thereafter, one day, when the wife of the accused slept. The accused came and established a physical relationship with her, and the accused fed her something and made her unconscious, and then the accused established a physical relationship with her. The victim has stated that at the time of the incident, she was 19 years old. She has stated that the incident took place in December 2018, and she reported the matter to her mother in May 2019, after the detection of her pregnancy, though she returned from the house of the accused on 17 January 2019. She further stated that there are three rooms in the accused's house. In the first room, the minor son of the accused sleeps; in the second room, the daughter, Mamun Das, sleeps; and in the third room, the accused and his wife sleep. The walls are not high till the roof, and there is a gap between the tin roof and the wall. She has stated that, in the accused's house, if someone speaks, it is audible in the other room. If someone screams or talks loudly, it is audible in the other part of the house. She has stated that a Bihari family resides in the house rented out by the accused, comprising the husband, the wife, and their two sons. She has further stated that Missionpara is a densely populated area, with residences built very close to each other, and that there is continuous traffic on the Mission main road, which lies in front of the house of the accused. The main gate of the accused's house is on the roadside; the distance between the gate and the house is approximately 8 feet. Further, two shops on both sides of the accused's house remain open late into the night. She has stated that Mamun Das, the 26- year-old daughter of the accused, was married to Makum, but on the day of the incident, she was present at her parental house after her divorce. She has stated that after about 10/15 days in the accused's house, the accused's wife called her brother to take her home, who accordingly did so. She has stated that she did not state before the police that Page No.# 5/13

she raised hue and cry or tried to escape from the accused to save herself. She has denied the suggestion that the accused did not commit rape on her. The remainder of her cross- examination concerns suggestions that the victim denied.

PW2

The medical officer who submitted the medical report of the victim in connection with this case deposed as PW2. He has stated that on 29/05/2019 Dr. Nicky Sah, the then M&HO-1 at Tinsukia Civil Hospital, examined the victim. He stated that on examination Dr. Nicky Sah found the following:-

In history, it was stated that the victim was sexually assaulted by her uncle in January 2019, but the date and time could not be remembered. Her menarche was at the age of

13. LMP was in January 2019. No menstruation at the time of examination. Total dentition was 28. No injury was detected on her whole body. Abdominal examination revealed a 20-week-sized uterus. No injury detected in the genital area. In her opinion, there was an intrauterine pregnancy of 21 weeks and 5 days in the victim. The victim was between 18 and 19 years old. He has stated that P.Ext. 2 is the medical report and P.Ext. 2(1) is the signature of Dr. Nicky Sah, which he knows.

In his cross-examination, PW2 stated that the medical report does not mention a case number. He stated that if a woman is pregnant in the first week of January 2019, she won't have a period in January 2019. He further stated that he cannot say whether the instant medical report was prepared in connection with this case.

PW3:

The informant, who deposed as PW3, has stated that the victim is his daughter and the accused is his brother-in-law. He has stated that the menstruation period of his victim daughter became irregular after returning from the house of the accused. He has stated that he sent his daughter with her mother for a medical checkup, and during the medical investigation, it was discovered that the victim was pregnant for 5 months. He stated that Page No.# 6/13

on being scolded, the victim told that she became pregnant through the accused, who is her MOUSA. He further stated that the victim suffered a miscarriage as she sustained injuries to her stomach. Then he lodged the ejahar vide P.Ext. 3 against the accused. P.Ext. 3(1) is his signature.

In his cross-examination, PW3 has stated that he does not know the contents of the ejahar. He has stated that his daughter never informed them about her pregnancy for 5 months. He denied the suggestion that he did not state before the police and did not state in the ejahar that on being scolded, the victim told that she became pregnant from the side of the accused, her MOUSA.

PW4:

The last witness to be examined by the prosecution is the mother of the victim, who stated that her daughter went to the house of the accused to stay there for a few days at the behest of the accused. After returning from the house of the accused, the menstruation period of the victim stopped and on being asked, the victim told her that her MOUSA gave her snacks, after taking which she became unconscious, and the accused, under such condition, gagged her mouth and committed rape on her. PW4 has stated that the victim found that at night, the door of the room was open where she was sleeping, and the accused committed rape on the victim for 2/3 days. PW4 further stated that she took the victim for a medical check-up, where she was detected to be 5 months pregnant. She has stated that after a few days, the victim had a miscarriage after sustaining injuries to her stomach.

During her cross-examination, PW4 denied the suggestion that she had not stated before the police the facts whatever she had deposed in her evidence-in-chief. She has also denied the suggestion that she has deposed falsely against the accused to cover the fact that the victim was a consenting party to the incident.

7. Evidence led by defence: NIL Page No.# 7/13

8. Arguments before the learned Trial Court:

While the Addl. P.P. had submitted that the prosecution had proved the case against the accused; it was argued for the defence that the victim was a consenting party to the accused's act. It was also argued that if a woman is pregnant in December, she will not have menstruation in the subsequent month of January, and in May, she cannot carry a pregnancy of 5 months. It was argued that the fact that the victim did not disclose the incident to anyone till detection of her pregnancy at 5 months creates doubt. Further, there are some contradictions in the evidence of the prosecution witnesses, and thus, the prosecution's case cannot be relied upon. Hence, it was prayed that the accused be acquitted of the charge levelled against him.

9. Decision of the Learned Trial Court :

The learned Trial Court observed that in the absence of an eyewitness, the evidence of the victim is most vital in this case. The fact of the victim having gone to the house of the accused to stay for a few days is not in dispute. It was not in dispute that after the incident, the victim stayed in the house of the accused for about 14/15 days, and then she was brought by her brother. It is in evidence that the accused gagged her mouth with his hand and committed rape on her. On that day, at first, the accused touched different body parts of the victim and asked for a kiss, but the victim asked the accused not to do such acts. The second incident happened about 3/4 days after the first incident, as stated by the victim, without her knowledge, and then the next morning, she felt pain in her vagina. The evidence of PW4 revealed that on being asked, the victim told her that her MOUSA gave her snacks, after taking which she became unconscious, and the accused, under such conditions, gagged her mouth and committed rape on her. The fact of the pregnancy of the victim remained undisputed in view of the medical evidence.

The Learned Trial Court observed that from the materials available, it is correct to say that the victim went to the house of the accused in the last part of December 2018 to stay there, and she stayed there for about 15/20 days. The accused also admitted the said fact.

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She had stated that after returning from the house of the accused, her menstrual period had stopped. The defence plea that the victim was a consenting party to the act of the accused was not believed. The victim was 19 years old. From the materials on record and considering the age of the victim, it could not be presumed that the victim was a consenting party to the act of the accused. It appeared to the Learned Trial Court that on one occasion, the accused committed rape by gagging her mouth and on the second time, the accused committed rape on her after administering her something, due to which she became unconscious. The defence plea that till the detection of her pregnancy at 5 months, the victim did not disclose the incident to anyone, which creates a doubt, was not believed by the learned Trial Court, since the victim may hesitate to disclose the same out of fear, or it may be that the victim could not know the result of that physical relationship. Therefore, she did not know why her menstrual period became irregular. It was natural for a victim girl of such a backward area not to be aware of the consequences of such a relationship. Further, in most cases, the victims in such a rural area feel shy about disclosing such incidents.

As per the learned Trial Court, although extensively cross-examined, the defence side failed to assail the victim's evidence. The defence tried to shake the evidence of the victim by putting some contradictory questions to her, but the victim withstood her cross-examination. She had clearly stated that she was subjected to rape by the accused several times; on the first day by gagging her mouth and on the second day by administering something to her, due to which she became unconscious. The evidence of the victim was considered to be supported by the evidence of PW3 and PW4. The accused failed to give any reasonable reply in his defence. In his statement recorded u/s. 313 Cr.P.C, the accused did not take any plea except denying the allegations. The record did not speak about any previous enmity between the accused and the family of the victim. The Learned Trial Court failed to find any reason why the victim would bring false allegations against the accused, being her uncle. Hence, the evidence of the victim Page No.# 9/13

remained intact and consistent. Accordingly, the accused was found guilty of committing rape on the victim and was convicted under Section 376 of the IPC.

Observing that the accused is a mature person and the victim was his niece, the accused had undermined his moral and social responsibility towards his niece to fulfil his boastful lust. The Court found it just and proper to sentence the accused to undergo rigorous Imprisonment for 10 years for his offence u/s. 376 IPC, and to pay a fine of Rs. 10,000/~ in default to S.I. for another 6 months. The accused was entitled to have the previous hazoti period set off against the total period of conviction as per section 428 Cr.P.C. The accused was in jail from 30/05/2019 to 12/06/2019 during the investigation, and is presently serving his sentence.

10. Proceedings in this appeal:

The learned counsel for the appellant has submitted that the victim's statement differed at different points in time and was inconsistent. The statement of the victim as recorded by the investigating officer, the statement recorded under Section 164 of the Cr. P.C. and the statement given during the Trial were inconsistent and contradictory. The learned counsel submitted that the learned Trial Court failed to notice the inconsistencies and therefore had arrived at an erroneous conclusion regarding the guilt of the appellant.

The learned counsel has submitted that the Investigating Officer in the Trial had not been brought into as a PW and therefore, in the absence of an opportunity to cross- examine him, the defence was put to disadvantage when the victim could not be confronted with the statements made under Section 161 Cr. P.C. and the material contradictions could not be brought to the notice of the Trial Court.

The learned counsel has submitted that the contradictions and inconsistencies were very material in the present case, since in her 161 statement, the victim had stated that she was violated twice when no one was present in the house, in her 164 statement, she stated that she was violated once after her aunt had gone to sleep and on later occasions Page No.# 10/13

when she lost consciousness after he fed her something, in the trial, whe stated that she was violated when her cousin her went away from her side during the first night itself and thereafter, on later occasions, he had sex with her without her knowledge when she was sleeping and she realized it in the following mornings only.

According to the learned counsel, had the inconsistencies been allowed to be brought to light by subjecting the investigation officer to cross-examination, the same would have been enough to raise reasonable doubts in the story of the victim, who was the sole witness to the incidents. The learned counsel has submitted that when such inconsistencies, coupled with the unexplained delay in lodging of the FIR, would drill enough holes in the story of the prosecution to entitle the appellant to a fair acquittal.

The learned counsel has also relied upon the evidence of the victim/victim to submit that her story was a highly improbable one, given the facts that she had herself admitted that the rape on each occasion had happened during the night when the whole family of the accused, including his wife, divorced daughter and minor son was present in a house which admittedly did not have any doors between the rooms. The victim in her statement had never stated that she had eaten the chocolate given by the accused, that she lost consciousness and that thereafter she was raped.

The very fact that the victim did not explain why she had told about the alleged repeated incidents to the wife of the accused or to her parents for a period of 5 months raises very strong doubts about her story. The Learned counsel has submitted that it is highly inconceivable that a healthy girl of 19 years would not realise about her violation when it was allegedly being committed and would realise it only the next morning. He has accordingly prayed for the acquittal of the accused by setting aside the order of conviction and sentence passed by the learned Trial Court.

He has placed reliance on the judgment of the Apex Court in the case of Vijayan vs State of Kerala, reported in (2008) 14 SCC 763, and Kishan Singh (D) through LRs vs. Gurpal Singh and others, reported in (2010) 8 SCC 775, to emphasise that the Page No.# 11/13

delay in lodging the FIR, as well as the delay in informing the near family etc., regarding an allegation of rape, could be fatal for the prosecution, at least in cases where the evidence of the sole material witness is not trustworthy or is inconsistent.

He has also placed reliance on the judgments delivered in the cases of Bahadur Naik vs State of Bihar, reported in (2000) 9 SCC 153 and V K Mishra vs. State of Uttarakhand, reported in (2015) 9 SCC 588 to emphasize the importance of bringing forth the contradiction in the evidence of the witness and the detrimental effect on the defence sought to be relied upon by the accused in the absence of opportunity to cross-examine of the investigating officer.

The Learned APP has submitted that there is no material contradiction in the evidence led by the sole material witness, and the proven facts of the case have not been controverted by the appellant sufficiently, either before the learned Trial Court or before this Court, to entail any interference in the judgment and order impugned in this appeal. He has submitted that the allegations levelled in the present case are serious and heinous, since a niece has levelled allegations of rape against her own uncle, which allegedly occurred in his house when she went to visit him. he has submitted that the accused had been rightly convicted and sentenced. The appeal did not require any further consideration.

The learned legal aid counsel has adopted the arguments of the learned APP and has prayed for dismissal of the appeal.

11. Conclusions in this appeal:

This Court has considered the submissions made by the learned counsel for the contesting parties and has also perused the record. The Court finds force in the submission of the learned counsel for the appellant that the victim had indeed given different versions of the alleged assaults upon her at different points in time. The variations were not minor; the number of times and the manner in which the assault had Page No.# 12/13

taken place varied materially in the different versions.

In the opinion of this Court, the submission of the counsel for the appellant has force that had such material contradictions/variations been brought on record by the defence during the trial, the same would have materially affected the conclusions arrived at by the learned Trial Court. This aspect of the matter would be highly relevant, since the accused was convicted and sentenced solely based on the victim's evidence and the Investigating Officer was, unfortunately, not brought in as a witness nor subjected to cross-examination.

As correctly pointed out by the learned Counsel for the appellant, the victim in her evidence before the learned Trial Court did not state that she had consumed the chocolate given by the accused and that she had become unconscious thereby. The assertion of the victim that she had realised about the sexual offence committed by the accused during the night only on the following morning does not, as it cannot, inspire confidence enough to convict the accused.

This Court also notices that the victim gives no explanation for not divulging about the assaults to the wife of the accused or to her own family, and why she continued to stay in the same household with the accused for another 15-20 days when, allegedly, he had raped her on the first night itself.

The victim has also admitted that the room in which she had slept the first night, when the first incident allegedly took place, was a room without doors. Later in her cross- examination, she admitted that none of the rooms of the house, except the bathrooms/toilets, had any doors. It is in her evidence that the construction of the rooms was such that even a loud voice would carry over to the other rooms. In the teeth of such evidence, this Court is unable to bring itself to believe that a forced sexual assault could have been committed by the accused in the manner described by the victim, which, as per evidence led at the trial, had taken place in the night time, inside rooms with no doors and when the entire family of the accused was also sleeping in the same house.

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While this Court is not raising any doubts about the pregnancy undergone by the victim, at the same time, this Court does not find enough evidence to uphold the conclusions of guilt of rape arrived at by the learned Trial Court.

Though the victim was found to be pregnant and she had immediately named the accused as the cause behind her ordeal, no DNA test had been conducted to determine the paternity of the fetus. The investigating officer was not examined during the Trial. The delay, firstly in divulging about the alleged offence to the family and then in lodging the FIR, and the improbable circumstances described by the victim are all factors that lead this Court to hold that the view taken by the learned Trial Court, convicting the accused under Section 376 of the IPC, cannot be sustained. The Trial Court went so far as to presume and imagine the circumstances of the delay, even when no explanations were forthcoming.

The judgment and order dated 13th day of September, 2024, pronounced by the learned Sessions Judge (FTC-2) Tinsukia, in Sessions Case No. 13 (T) of 2021) arising out of Tinsukia P.S. Case No. 739/2019, convicting the appellant under Section 376, IPC, is accordingly set aside and quashed. Appeal is disposed of.