Gauhati High Court
Ashabul Hussain vs The State Of Assam And Anr on 8 May, 2026
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/16
GAHC010202942024
2026:GAU-AS:6346-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./323/2024
ASHABUL HUSSAIN
S/O. LALCHAN ALI, R/O. KHORAGAON MAJPARA, P/S. JOGIGHOPA, DIST.-
BONGAIGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM.
2:LIYAKAT ALI
S/O. LATE ACHAN ALI
R/O.- KHORAGAON MAJPARA
P/S.- JOGIGHOPA
DIST.- BONGAIGAON
ASSAM
PIN-783388
For the appellant : Mr. A. Ahmed.
For the respondent : Ms. A. Begum, Addl. P.P.
BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MR. JUSTICE RAJESH MAZUMDAR Date on which judgment is reserved : 05/05/2026 Page No.# 2/16 Date of pronouncement of judgment : 08/05/2026 Whether the pronouncement is of the : No operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (CAV)
(M. Zothankhuma, J)
1. Heard Mr. A. Ahmed, learned counsel for the appellant and Ms. A. Begum, learned Addl. PP for the State.
2. The appellant has prayed for setting aside the impugned Judgement dated 09.09.2024, passed by the Special Judge (POCSO), North Salmara, Abhayapuri in Special (P) No. 13(J)/2018, by which the appellant has been convicted under Section 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default, to undergo simple imprisonment for 6(six) months.
3. The appellant's counsel submits that the age of the victim could not have been 16 years, but would have been around 19 years at the time of the incident, in terms of the evidence given by the stepfather (PW-1) of the victim in his cross- examination, where he stated that at the time of his marriage with the victim's mother, which was 17 years ago, the victim was 6-7 months old, while the incident occurred sometime in February 2018, as the FIR stated that the victim was 4 months pregnant at the time of filing the FIR dated 04/06/2018.
4. Further, the testimony of the witnesses showed that there was no Page No.# 3/16 evidence to justify the conviction of the appellant under Section 6 of the POCSO Act. Also, the HSLC Registration Certificate of the victim, which had been relied upon by the Learned Trial Court, to come to a finding that the victim was 16 years of age, had not been proved, inasmuch as, merely exhibiting a document without comparing with the original, does not prove the contents of the same.
5. The learned counsel for the appellant further submits that the mother of the victim (PW-3) did not know the date of birth of the victim. Further, the radiological examination of the victim showed her age to be around 18 years. The prosecution also did not conduct a DNA test to ascertain the paternity of the child born to the victim, even though the appellant denied the allegation that he had fathered the said child. Further, no incriminating evidence relied upon by the prosecution, had been put to the appellant during his examination under Section 313 Cr.P.C. He also submits that as the foundational facts had not been proved by the prosecution during trial, Section 29 of the POCSO Act could not be attracted to the present case.
6. The learned APP, on the other hand, submits that the victim had become pregnant and given birth to a child, due to the aggravated penetrative sexual assault committed by the appellant against the victim. Further, the evidence of PWs 4, 5 and 6 showed that a Bichar (public meeting) had been held in the village where the appellant confessed his guilt, stating that he had made the victim pregnant. Also, the victim was only 16 years of age at the relevant point of time, as the Registration Card-2017 of the victim issued by the Board of Secondary Education Assam, showed that the victim's date of birth was 16.05.2003, while the incident had apparently occurred sometime in February, 2018. She accordingly submits that the appeal should be dismissed.
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7. We have heard the learned counsels for the parties.
8. The prosecution case in brief is that the informant (PW-1), who is also the stepfather of the victim, submitted an FIR dated 04.06.2018 to the Officer-in-Charge, Jogighopa Police Station, stating that the appellant had been having sexual intercourse with his minor daughter, who was born on 16.05.2003. Further, the victim was then 4 months pregnant. When a public meeting was held on 23.05.2018 regarding the incident, the appellant had confessed to have engaged in intercourse with the daughter of the informant. Based on the said confession and with the influence exerted by members of the village society, an agreement was executed on non-judicial stamp paper worth Rs.10/-. Further, when the informant went to the house of the appellant at 9.30 am on 26.05.2018 to try and reach a settlement on the issue, the appellant and his other family members including his mother abused the informant, stating that they did not agree to any settlement on the issue. The informant was also threatened that if he approached them in the future, the informant and the victim would be killed. He also stated that a Bichar (village meeting) had been held. In pursuance to the FIR dated 04.06.2018, Jogighopa P.S. Case No. 212/2018 under Section 4 of the POCSO Act, 2012 was registered.
9. After investigation of the case, the Investigating Officer (PW-9) submitted a charge-sheet against the appellant under Section 6 of the POCSO Act. The learned Trial Court thereafter framed charge against the appellant under Section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried.
10. The learned Trial Court thereafter examined 9 Prosecution Witnesses and 1 Defence Witness during trial. The appellant was also examined under Section 313 Cr.PC, wherein he denied raping the victim or that he had fathered the child born to Page No.# 5/16 the victim. The learned Trial Court thereafter held that the appellant had failed to provide any plausible explanation as to why the victim and her parents would single out the appellant and hold him responsible for impregnating the victim through rape. Further, there was no motive to have fabricated a false case against the appellant by the victim or her family. The learned Trial Court also held that the appellant had failed to rebut the presumption of guilt under Section 29 and 30 of the POCSO Act. The learned Trial Court thus held that the prosecution had been able to prove the guilt of the appellant under section 6 of the POCSO Act.
11. The evidence of PW-1, who is the informant, is to the effect that when his step-daughter(victim) stopped going to school for three days in May, 2018, his wife became suspicious. Thereafter, his wife and her sisters started asking the victim about it and the victim told them that the appellant had raped her under the pretext of marrying her. When she was taken to the hospital, they learnt that the victim was four month's pregnant. A Bichar (public meeting) was held on 23rd of May, 2018, where the appellant confessed to having made the victim pregnant. Further, a written agreement was made in the Bichar, which was signed by the appellant, the public and PW-1. However, as the appellant did not abide by the agreement, the present case was filed. The victim thereafter gave birth to a male child when she was 16 years old and a student of Class-X. PW-1 further stated that the police seized the victim's school Registration Certificate from his possession, which was exhibited as Mat. Ext.-1. In his cross examination, PW-1 stated that it had been 17 years since his marriage with the victim's mother. At the time of marriage, the victim was 6-7 months old. PW-1 denied the suggestion that at the time of occurrence, the victim was not 16 years old but was 19 years of age. He also denied the suggestion that the victim was in love with the appellant.
12. The evidence of PW-2 (victim) is to the effect that some 11 months ago at Page No.# 6/16 around 8 AM, she was going towards her school and the appellant who was following her, took her to the jungle beside the road and raped her, after threatening her with a knife. The appellant also told her not to disclose the incident to others. The victim then went home instead of going to the school. On a different day, while she was going to her school, the appellant raped her. As a result, she became four month's pregnant. She narrated the incident to her mother and maternal aunt and when she was examined in the hospital, she was told that she was 4 months pregnant. She also stated that she had given birth to a male child. She also stated that in the Bichar (public meeting), the appellant had confessed his guilt. However, the appellant did not marry her. In her cross-examination, PW-2 stated that she could not recall the dates and the months when the appellant had raped her. PW2 denied the suggestion that she was in a relationship with a boy named Amir Hussain or that she became pregnant as a result of having sexual intercourse with Amir Hussain. She also denied the suggestion that when Amir Hussain fled, they implicated the appellant to compel the appellant to marry the victim. She also denied the suggestion that a Bichar (public meeting) had not been held in the village or that the appellant had not confessed his guilt in the Bichar (public meeting).
13. The evidence of PW-3, who medically examined the victim, is to the effect that the victim was four months pregnant at that time and that he had not enclosed the radiological as well as X-ray report regarding the age of the victim along with the medical report submitted by him. The medical report, which was exhibited as Ext. 4- 4(1), is to the effect that the age of the victim was around 18 years.
14. The evidence of PW-4, who is the mother of the victim and wife of PW-1, is to the effect that on 23-05-2018 at 9 AM, she questioned her 15 year old daughter as to why she did not go to school. The victim then told her and her maternal aunt Anisha Begum that the appellant had raped her. On getting her medically examined Page No.# 7/16 by a doctor, they learnt that the victim was five months pregnant. The public was then informed of the incident, due to which a meeting was held. In the said meeting, the appellant confessed that he had made the victim pregnant. However, as no resolution could be taken in the public meeting, her husband lodged the present case. She also stated that the victim gave birth to a male child after the case was lodged. PW-4 denied the suggestion that no Bichar (public meeting) was held in the village, in connection with the incident involving the appellant and the victim. She also denied the suggestion that the victim was over 18 years of age at the time of the incident or that there was a love affair between the victim and one Amir Ali. She also denied the suggestion that the victim had become pregnant due to having sexual intercourse with Amir Ali.
15. The evidence of PW-5, who is the maternal uncle of the victim, is to the effect that a Bichar had been held in the village on 23.05.2018, in order to arrive at a solution with regard to the pregnancy of the victim. In the Bichar, the appellant confessed that he had made the victim pregnant. In his cross-examination, PW-5 stated that in accordance with the provisions of the Shariah, whenever a Bichar is held, a Maulvi has to be present. However, no Maulvi was present in the Bichar which was held in the house of PW-1.
16. The evidence of PW-6, who is the maternal uncle of the victim, is to the effect that on 23.05.2018 a public meeting was held in the house of informant (PW-
1), due to the victim being made pregnant by the appellant. In that meeting, the appellant's father Lalchan Ali and uncle, Md Alom Ali were also present. On being asked by the public, the appellant confessed his guilt by stating that he was responsible for the pregnancy of the victim. Further, the statement of the appellant was also recorded.
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17. The evidence of PW-7 is to the effect that on 23.05.2018, a public meeting was held in the house of PW-1, where he was present with the others. The appellant confessed his guilt and said that he had a love affair with the victim and that both of them had entered into a physical relationship.
18. The evidence of PW-8 is to the effect that the occurrence of the event took place around 4/5 years back at around noon/1:00 p.m. While going to the field to bring his cows home, he saw the victim running towards him from the jungle near the field. The victim told him that the appellant had raped her. After reaching home, PW-8 stated that he went to the house of the informant. As the informant was not present in his house, he informed PW-4 about the incident.
19. The evidence of PW-9 is to the effect that he had been posted at Jogighopa Police Station, as the Second Officer on 04.06.2018. On that day, an FIR was lodged by the informant. The O/C of Jogighopa P.S thereafter registered the case and tasked him with the investigation. He seized the Registration Certificate of the victim issued by the board of Secondary Education. On the appellant appearing in the police station, he arrested him and produced before the Court. He submitted a Charge-sheet against the appellant after completing the investigation.
20. In his cross-examination, PW-9 stated that he did not have any DNA testing done on the child of the victim or the appellant. Further, the victim had never told him that the appellant was holding a knife in his hand at the time of rape. The victim also did not tell him that on being raped on the first day, she did not go to her school and she returned home instead. PW-9 further stated that PW-4 did not tell him that a village Bichar had been convened, wherein the appellant confessed his guilt. PW-9 also stated that PW-7 did not tell him that a public meeting had been held in the Page No.# 9/16 house of the informant on 23.05.2018. PW-9 further stated that PW-8 did not tell him that the victim ran towards him saying that she had been raped by the appellant. PW-9 also stated that PW-8 did not tell him that PW-8 had informed the wife of the informant about the incident. PW-9 also denied the suggestion that one Amir Hussain had impregnated the victim.
21. The evidence of DW-1 is to the effect that on the date of occurrence, a village conciliation meeting was convened in the house of the informant in the evening. In the village conciliation meeting, the victim informed the persons gathered there that she had been impregnated by one Amir Hussain. The people present in the village conciliation meeting asked for Amir Hussain to be present in the meeting. But Amir Hussain fled from the village and did not turn up in the village conciliation meeting. A village conciliation meeting was again held after about 12/15 days wherein Amir Hussain was also invited. However, Amir Hussain did not turn up for the meeting. In the second village conciliation meeting, the victim told the members of the meeting that the appellant had impregnated the victim.
In her cross-examination, DW-1 stated that he came to know that the victim had been impregnated by Amir Hussain from the informant.
22. The examination of the appellant under Section 313 Cr.P.C shows that the appellant has denied having committed any penetrative sexual assault on the victim or that he fathered the child born to the victim.
23. Though the evidence of PWs-2, 5 & 6 is to the effect that a bichar had been held where the appellant had confessed his guilt, it has to be kept in mind that PWs- 5 & 6 are interested witnesses, inasmuch as, they are the Uncles of the victim.
Page No.# 10/16 PW-1 (informant) had testified that in the bichar held on 23/05/2018, the appellant besides confessing to having made the victim pregnant, had executed a written agreement signed by the appellant, the public and PW-1, which was not abided to by the appellant. However, the said alleged written agreement is not part of the record and there is nothing shown by anybody as to what was the contents of the said written agreement. While there appears to be no reason to disbelieve the evidence of the interested witnesses, regarding their evidence that the appellant had confessed that he had made the victim pregnant in the bichar, the said testimonies would have to be considered carefully, keeping in view the other evidence adduced and the stand taken by the victim in her section 164 Cr.P.C. statement.
24. It can be seen from the evidence of PW-2 (victim), that she had testified before the learned Trial Court that she had been raped in the jungle after being threatened with a knife. The statement of the victim under section 161 Cr.P.C. is similar to her testimony in the Court that she had been raped in the jungle. However, in her 161 Cr.P.C. statement, there is no mention of the victim being threatened with a knife. The above being said, the victim's statement made under section 164 Cr. P.C. is to the effect that she was a student of Class-X in Kharagaon High School. The appellant had expressed his love for her, but she did not accept the same. While going to school, the appellant met her on the road and wanted to have physical relations with her, which she called anal sex. However, as she did not agree, the appellant pulled her into the jungle and touched her breasts. The appellant removed her pants and also removed his own trousers and had anal sex with her. She also stated that the appellant repeated this act on her on 5 (five) different occasions. The appellant also told her that he would marry her. She also stated that she did not disclose anything to her family, as she was threatened by the appellant that he would kill her if she disclosed anything to her family. Later, when her menstrual cycle stopped and she was questioned by her mother, she told her mother and her maternal aunt about the Page No.# 11/16 incident. The victim's statement under section 164 Cr. P.C. has been exhibited in the learned Trial Court as Ext. 3.
25. It is settled law that a statement under section 164 Cr.P.C. can be used for corroboration or contradicting the testimony of a witness. The victim's statement under section 164 Cr.P.C. has been exhibited by the victim and her signatures have also been identified therein by the victim as Ext. 3(1) and Ext. 3(2).
26. Thus, in terms of the victim's statement under section 164 Cr.P.C., the appellant only had anal sex with the victim, which under no circumstances could have led to pregnancy. This contradiction in the victim's statement under section 164 Cr.P.C. and her testimony before the learned Trial Court cannot be washed away or ignored, as this discrepancy is a major discrepancy, which goes to the root of the issue, i.e. whether there was any aggravated penetrative sexual assault on the victim by the appellant, which led to the pregnancy of the victim and the eventual birth of a baby.
27. In the case of R. Shaji Vs. State of Kerala reported in (2013) 14 SCC 266, the Supreme Court has discussed the two-fold objective of a statement made under section 164 Cr.P.C. to be, firstly, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under section 164 Cr.P.C. The Supreme Court in the case of Vijaya Singh and another Vs. State of Uttarakhand reported in 2024 Supreme (SC) 1096, on considering the decision in R. Shaji (Supra), held that considering the conceptual requirement of recording a statement before a Judicial Magistrate during the course of investigation and the utility thereof, as prescribed in section 157 of Evidence Act, it could be observed that a statement under Section 164, although not a substantive piece of evidence, not only meets the test of relevancy but could also be used for the purpose of contradiction and corroboration. It also held that a statement recorded under section 164 Cr.P.C. serves a special purpose in a criminal investigation, as a greater amount of credibility is attached to it for being recorded by Page No.# 12/16 Judicial Magistrate and not by the Investigating Officer. It further held that whether the Court believes the statement to be true, the ultimate test of reliability happens during the trial, upon a calculated balancing of conflicted versions in light of other evidence on record. The Supreme Court further held that to permit retraction by a witness from a signed statement recorded before a Magistrate on flimsy grounds or on mere assertions, would effectively negate the statement recorded by a Judicial Magistrate.
28. The Supreme Court has thus held that a statement made under section 164 Cr.P.C. can be used for both corroboration and contradiction and that retraction from a signed statement on flimsy grounds would be difficult. In the present case, the statement of the victim under section 164 Cr.P.C. has not been retracted by the maker of the statement. In fact, the same has been exhibited by the victim. As such, some weight would have to be attached to the statement made under section 164 Cr.P.C. and the same cannot be discarded. We are well aware that the weight of a statement made under section 164 Cr.P.C. by a witness and a confessional statement made under section 164 Cr.P.C. by an accused would be different, inasmuch as, the contents of the confessional statement would have to be proved by the Officer who had recorded such statement. However, the same is not the case for a statement made by a witness under section 164 Cr.P.C. In the case of Gurubinda Palli Anna Rao & another Vs. State of AP reported in 2003, SCC online AP 1231, the Division Bench of the Andhra Pradesh High Court has held that it is not necessary to summon the Judicial Magistrate who recorded the Section 164 Cr.P.C statement, to prove the contents of the said statement. In the case of the State of Chhattisgarh Vs. Rakesh Kumar Ratre, 2025 (Supreme) Online SC 3362, the Supreme Court has held that the Trial Court had correctly rejected the application seeking a direction to call the Magistrate who had recorded the prosecutrix's statement under section 164 Cr.P.C. as a defence witness, inasmuch as, the prosecutirx had categorically confirmed about the recording of the statement by the concerned Magistrate.
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29. On account of the contradiction in the statement of the victim made under section 164 Cr.P.C and her testimony before the learned Trial Court, we are of the view that the victim is not a sterling witness, as has been defined by the Hon'ble Supreme Court in the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21. In the above case, the Hon'ble Supreme Court has held that a conviction can be based solely on a witness's testimony if it is of very high quality, calibre and is unassailable. It held that the version of a sterling witness should be in a position to accept it at its face value without any hesitation. What would be relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution. In the present case, the statement of the victim under section 164 Cr.P.C is totally at variance with her testimony before the Court. There is no question of there being any pregnancy occurring on the basis of anal sex and the statement under section 164 Cr.P.C states that the only sex they had was anal sex.
30. On considering the above discrepancy, it becomes difficult for us to accept the testimony of the prosecutrix without there being any other corroboration that the appellant had subjected her to aggravated penetrative sexual assault in her vagina and not in her anus.
31. Another major discrepancy we find is that the mother and Aunt of the victim found out about the pregnancy on questioning the victim, as she did not go to School. However, PW-8 in his testimony stated that he informed PW-4 about the rape. However, PW-4 does make a mention of PW-8 telling her that her daughter had been raped. This also raises a serious doubt on the truthfulness of the evidence given by the informant, PW-4 and other Prosecution Witnesses.
32. Though the issue of whether there had been any penetrative sexual assault on the victim and whether the appellant had fathered the child born to the victim, Page No.# 14/16 could have been solved by having a DNA test in terms of section 53A (2) (iv) Cr.P.C. which is equivalent to Section 52 BNSS, the same had not been done. Further, section 164 A (2) (iii) Cr.P.C, which is equivalent to Section 184 BNSS, provides that a registered Medical Practitioner, to whom a victim of rape is sent, shall without delay, examine her person and prepare a report of his examination giving various particulars, one of them being, the description of material taken from the person of the woman, etc., for DNA profiling. However, neither did the Investigating Officer take recourse to section 53A, nor did the Doctor, who examined the victim take recourse to section 164 A Cr.P.C.
33. Though this court had made an effort during the appeal proceedings to have a DNA test conducted on the appellant and the child born to the victim, to prove whether the child had been fathered by the appellant, the said test was not done due to the fact that the victim's baby had been given on adoption in the year 2018 and had been living with her adopted parents since then. Keeping in view the letter dated 21/02/2026 written by learned Trial Court, pursuant to the letter dated 16/01/2026 written by the Chairperson, Child Welfare Committee, Bongaigaon, Assam, and keeping in view the Adoption Regulations, 2022, we felt that it would not be proper at this stage to carry on with the DNA test/ profiling of the victim's child, as there was a chance that the results may thereafter somehow be known to the child and the adopted parents, which would be traumatic and which may have a negative impact on all concerned persons. As such, the same was not done.
34. Though the appellant had denied having any sexual relationship with the victim or having fathered the child, the DNA test/profiling was not done by the appellant. It is now too late in the day to do the same due to the reasons stated above. Further, when the victim had taken a stand that she had only anal sex with the appellant in the statement recorded under section 164 Cr.P.C. and there being no evidence corroborating the testimony of the victim that she had sex, other than only Page No.# 15/16 anal sex with the appellant, we are of the view that the prosecution has not been able to prove the guilt of the appellant under section 6 of the POCSO Act beyond reasonable doubt. Besides, the paternity of the child born to the victim thus does not appear to be proved.
35. In view of the reasons stated above, we hold that the foundational facts regarding there being aggravated penetrative sexual assault on the victim which led to the birth of the child, has not been proved, which would shift the burden of proof to the appellant under section 29 of the POCSO Act.
36. In view of the major discrepancy in the statement of the victim vis-a-vis her testimony and the testimony of PW-8 which goes to the root of the matter, besides the other reasons stated in the foregoing paragraphs, we hold that the learned Trial Court erred in convicting the appellant solely on the evidence of the prosecutrix. Accordingly, we do not agree with the decision of the learned Trial Court in coming to a finding that the guilt of the appellant has been proved beyond all reasonable doubt under section 6 of the POCSO Act, especially when there has been no discussion with respect to the victim's statement under section 164 Cr.P.C. vis-a-vis her testimony before the learned Trial Court.
37. In view of the reasons here above, we hold that the prosecution has not been able to prove the guilt of the appellant beyond reasonable doubt. The appellant is accordingly acquitted of the charge framed against him under section 6 of the POCSO Act by giving him the benefit of doubt. Consequently, the impugned judgement dated 09/09/2024 passed by the learned Special Judge (POCSO), North Salmara, Abhyapuri in Special (P) No.13(J)/2018 is hereby set aside. The respondents are accordingly directed to release the appellant from judicial custody immediately, if not wanted in any other case.
38. The appeal is accordingly allowed.
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39. Send back the TCR.
JUDGE JUDGE
Digitally signed
Comparing Assistant
Sukham by Sukhamay
Dey
ay Dey Date: 2026.05.08
14:25:06 +05'30'