Gauhati High Court
Gautam Namasudra vs The State Of Assam And Anr on 29 October, 2025
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GAHC010158182023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./283/2023
GAUTAM NAMASUDRA
S/O AMAR NAMASUDRA,
R/O MUKAMCHERRA COLONY, P.S.- RATABARI, DIST.- KARIMGANJ,
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM.
2:PUSPA RANI NAMASUDRA
W/O LATE KABINDRA NAMASUDRA
R/O MUKAMCHERRA COLONY
P.S.- RATABARI
DIST.- KARIMGANJ
ASSAM
PIN
Advocate for the Petitioner : Mr. S. Chauhan, Advocate
Advocate for the respondents: Mr. S. Nawaz, Amicus Curiae, (R-2)
Mr. P.S. Lahkar, learned Addl. P.P. BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA Date of Hearing : 23.10.2025 Date of Judgment : 29.10.2025 Page No.# 2/10 JUDGMENT AND ORDER (CAV)
1. Heard Mr. S. Chauhan, learned counsel and Mr. S. Nawaz, learned Amicus Curiae for the respondent No.2. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State.
2. This appeal is directed against the judgment and sentence dated 16.06.2023, passed by the Learned Session Judge, Karimganj in Special Sessions Case No. 07/2020 convicting the accused/appellant U/S 376 of IPC and R/W Section 4 of the POCSO Act and sentencing him to undergo R.I. for 10 years and also to pay a fine of Rs.10,000/- i/d to R.I. for another 1 (one) year.
3. The instant case arose out of an FIR which was lodged at Ratabari P.S. Case No. 280/2019 on 19.12.2019 alleging that on 17/12/2019 at 12, noon when none was present in her house accused entered into her house and finding her 15 years old granddaughter (victim) alone in the house gagged her mouth and dragged her to the nearby Anganwadi Center and committed rape on her. When her granddaughter screamed, the accused person fled and coming to know about it she has prayed for bichar but when nothing came out of it she lodged the instant case.
On receipt of the ejahar, police registered the same as Ratabari PS Case No. 280/2019 under section 4 of POCSO Act dated 19/12/2019 and initiated the investigation of the case and after completion of the investigation submitted charge sheet against the accused Gautam Namasudra under section 376 IPC R/W section 6 of POCSO Act, 2012.
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4. The learned trial Court framed charge under Section 376 read with Section 6 of the POCSO Act to which the accused appellant pleaded not guilty and claimed to be tried and accordingly, the trial commenced in course of which six prosecution witnesses were examined after which the appellant was examined under section 313 Cr.P.C. The defense has also adduced one witness as D.W. 1.
5. I have heard Mr. Chauhan, learned counsel for the appellant, Mr. Lahkar, learned Additional P.P. and also Mr. S. Nawaz, learned Amicus Curiae who represented the informant.
6. The victim who was examined as P.W. 4 deposed that in the year 2019 when she was studying in Class VIII by residing at her maternal grandmother's house, one day she went to school but as the teacher was absent in the school, she returned home and on finding her grandmother absent in the house, she went in search of her grandmother. Thereafter, suddenly the accused came from behind and grabbed her and forcefully dragged her to the nearby Anganwadi School and undressed her and had forceful sexual intercourse with her. Hearing her hue and cry, her maternal uncle who was in the nearby grazing field grazing the cows came to the place of occurrence but as he was threatened by the accused, he went away out of fear and after sometimes her maternal aunt came to the place of occurrence and thereafter the accused left the place. During the evening time, when her grandmother came, she narrated everything to her and when her grandmother informed about the occurrence to the villagers and when no action was taken, on the subsequent day, her grandmother lodged the FIR. She was medically examined and her statement under section 164 Cr.P.C. was recorded.
Page No.# 4/10 During her cross examination she disclosed that the house of the accused is situated adjacent to the house of her maternal grandmother and also the Anganwadi School where the alleged offence took place is situated at a distance of about 6 cubits from her maternal grandmother's home. She however admitted that the clothes worn by her were not seized by the Police.
Herein several suggestions was put to this witness that she did not state before the police about accused dragging her to the nearby Anganwadi School and undressing her and committing rape on her and she raising hue and cry which she categorically denied. This witness was also put several other suggestions by defence which she denied. On being questioned she also stated that her aunt was with her till the arrival of her grandmother. She also stated that her maternal uncle and aunt stayed in the same compound where her grandmother stays but they have separate room.
7. During cross examination, although the victim was subjected to lengthy cross examination it appears that no such material contradiction could be brought out by the defence, though she had admitted that the clothes worn by her were not seized by the police. She denied the suggestion that she did not state before the police that the accused forcefully dragged her to a nearby Anganwadi school and undressed her and did forceful sexual intercourse with her by threatening her with dire consequences if she raised any hue and cry.
8. The I.O. who was examined as P.W. 5 stated that the P.W. 4 victim initially stated to him that the accused took her away by inducing her and later she stated that he took her forcefully to the place of occurrence and she did not Page No.# 5/10 state that the accused threatened her with dire consequence if she raises hue and cry. These are minor discrepancies which need not affect the prosecution case in any manner. Although the I.O. has confirmed that she did not state before him that upon hearing her sound her maternal uncle came to the PO and as the accused threatened him he went back out of fear, the defence could not bring out any contradiction from the testimony of the maternal uncle himself who was examined as P.W. 3.
9. From the above, it is more than apparent that the testimony of the victim stood firm during cross examination and nothing substantial could be extracted which would cast doubts upon the credibility of the witness. In addition to the above, although rare in cases of such nature, there is another witness i.e. P.W. 3, the maternal uncle of the victim who stated that on the fateful day of the at 12 noon while he was grazing cows in the field near his house, which is situated near Anganwadi School he heard the cry of his niece (victim) from the Anganwadi School. Hearing her cry, he went there and found the accused committing rape on his niece. Witnessing the incident, he reported about it to his wife and thereafter to his mother in the evening when she returned home. His mother knowing about the incident, held a village meeting but as the accused refused to accept the dictate of the village meeting, his mother lodged the ejahar on the next day. On being subjected to cross examination, he disclosed that there is no fencing around the Anganwadi School. He also stated that after witnessing the rape on his niece, he left the place of occurrence out of fear and inforned his wife and then he went to graze his cows. He also deposed that the accused after seeing him scolded him. He however admitted that there is a dispute with the accused regarding the drainage of water which flows in Page No.# 6/10 between their house and the accused person's house. He further stated that the accused is a married person having children. It is also revealed by this witness that his wife after coming to know about the occurrence went to the place of occurrence.
10. The P.W. 6 who is the daughter-in-law of the informant also substantiated the testimonies of P.W.s 3 & 4 and she deposed that the informant is her mother in law and that on the date of occurrence at 12 noon, the victim, who was residing with her grandmother at that time, after returning home enquired about her grandmother and she told that her grandmother had gone to collect firewood, but after sometime, her husband came home and asked about the victim and then went out to chase the cow and while he was chasing the cow, he heard a sound from the nearby school and witnessed the accused sexually assaulting the victim. Thereafter, he called her and when she went to the place of occurrence she witnessed the accused raping the victim and after witnessing her the accused went away from the place of occurrence. Subsequently, when her mother in law came home, the victim narrated the incident to her and she also reported about the same to her mother in law and subsequently, her mother in law lodged the FIR.
During cross-examination, she disclosed that it was her husband who first went to the place of occurrence and thereafter she went to the place of the incident. She also divulged that she found the accused and the victim in the L.P. School. She also stated that on the relevant day though the victim went to school, as it was closed, she returned home. She disclosed that the Anganwadi School, which is situated adjacent to the L.P School had its doors and windows Page No.# 7/10 opened, as they were mostly broken. However, she denied the suggestion put to her that the accused person did not sexually assault the victim.
11. Thus, it is seen from the above that the evidence of P.W. 6 also could not be contradicted in any meaningful manner
12. PW1 is the informant of this case, who stated that on the day of occurrence at 12 noon while she was cutting wood in the jungle, her granddaughter came home and not finding her at the house went in search of her and on the way, accused by catching hold of her granddaughter gagged her mouth and by forcefully undressing her committed rape on her granddaughter in the Anganwadi School. Hearing her hue and cry, her son (PW3) went to the place of occurrence and witnessed the accused committing rape on her granddaughter but the accused upon seeing her son threatened him with dire consequences if he disclosed the incident to anyone and at 4 pm when she returned from the jungle, she found her granddaughter crying and then she came to know that the accused committed rape on her. Though she informed about the occurrence to the parents of the accused, they failed to give any response, for which she lodged the FIR.
During cross examination, she stated that she would not have lodged the FIR if the accused would have settled the matter. She also disclosed during cross examination that the house of Brojesh, Gurudas, Nagendra and Haripada are situated at a distance of 30-40 cubits from their house. This witness was put through several suggestions by defence which she denied.
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13. P.W.2 Doctor Debashurti Chakraborty, the Medical officer who examined the victim on 20.12.2019 inter alia deposed that she found a linear wound of 4x1 cm found on her right thigh which was a simple injury and upon examination of the private parts no injury was seen on her labia majora, but the right lip of labia minora was torn and so was the hymen. She did not find any other injury.
14. From the above, it is discernable that the medical evidence also supports the prosecution case as some sort of injury was the private parts of the victim was also found.
15. The learned counsel appearing for the appellant submitted that there was a delay of two to three days in lodging of the FIR, but in my considered view and as rightly held by the learned trial Court; in view of the fact that the victim side had proposed a vichar, some delay would naturally be occasioned as in such matters some deliberations are bound to take place in between the family members before approaching the police. The Hon'ble Supreme Court has held in a catena of decisions that in cases of this nature, where the honour of the girl is in question, some delay in lodging the FIR is bound to occur. Therefore I do not find any force in this submission. It was next contended that the P.W. 3 uncle claimed to have seen the incident but yet he ran away which is highly unnatural. There may be some force in the aforesaid argument but different individuals react differently to different situations. The mere fact that the P.W.3 ran away from the spot cannot by itself detract from his unshaken testimony nor the testimony of the victim herself. Even de hors the testimony of P.W.3, in the instant case, the sole testimony of the victim is sufficient to establish the guilt of Page No.# 9/10 the accused. The reference has been made to the cross-examination of the P.W. 3 wherein he had admitted that there was a prior quarrel or dispute with regarding to passage of water through a drain between the houses of the accused and the P.W. 3. In my considered opinion, it is too minor a dispute as would propel the entire family to make up a false case of this nature against the accused.
16. As regards the age of the victim, the medical evidence has placed the same in between the age of 16 and 17 years. But apart from that the birth certificate of the victim which was exhibited as exhibit Ext 1 clearly established the date of birth as 08.05.2006 and the said certificate was issued on 23.05.2006 i.e. soon after her birth and therefore as rightly observed by the learned trial Court there was no reason to doubt the authenticity of the said birth certificate. Moreover, in case of any doubt it was for the defence to have challenged the same at the appropriate time and to have sought for the evidence of the issuing authority. But no such step was taken at the relevant time. Therefore, minority of the victim is also not disputable.
17. Moreover, as rightly submitted by learned Addl. P.P., in view of Section 29 of the POCSO Act, a legal presumption arises against the accused person. As the prosecution has established the foundational facts, it was for the defence to have rebuted the same in a manner permitted by law. But, although defence adduced the evidence of D.W.1, the same is wholly inadequate to rebut the legal presumption under Section 29 of the POCSO Act. As held by Hon'ble Supreme Court in the case of Phool Singh Vs State of Madhya Pradesh reported in (2022) 2 SCC 74, the sole testimony of the victim is sufficient, if Page No.# 10/10 the same is found to be believable, to establish the guilt of the accused.
18. Therefore, in view of the above discussion, I do not find any infirmity in the impugned judgment of conviction and further, with regard to the sentence as well, I find at the learned trial Court is imposed the minimum sentence permissible under law and no interference in this regard called is for either. Consequently, the appeal stands dismissed.
19. Send back the TCR.
JUDGE Comparing Assistant