Gauhati High Court
Page No.# 1/2 vs The State Of Assam And Anr on 7 August, 2025
Page No.# 1/21
GAHC010254032023
2025:GAU-AS:10335
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./70/2024
ASHRAFUL SHEIKH
S/O RAHMAT ALI, R/O VILLAGE- CHARUABAKRA,
P.S- CHAPAR, DIST- DHUBRI, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PP, ASSAM.
2:SHAHERA KHATUN
D/O SARBES ALI
R/O VILLAGE- CHARUABAKRA (JUNGLE BLOCK)
P.S.- CHAPAR
DIST- DHUBRI
ASSAM
Advocate for the Petitioner : MR. R BORA,
Advocate for the Respondent : PP, ASSAM, MR. A PHUKAN, AMICUS CURIAE (R-2)
Page No.# 2/21 :::BEFORE:::
HON'BLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 22.07.2025 Date of Judgment & Order : 07.08.2025 JUDGMENT & ORDER (CAV) Heard Mr. R. Bora, learned counsel for the appellant. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. A. Phukan, learned Amicus Curiae for the respondent No. 2.
2. This is an appeal under Section 374(2) read with Section 482 of the Code of Criminal Procedure, 1973 against the impugned judgment and order dated 29.08.2023, passed by the learned Special Judge, Bilasipara, Dhubri in Special (POCSO) Case No. 38/2019, whereby the appellant has been convicted under Section 4 of the POCSO Act, 2012 and sentenced to undergo Rigorous Imprisonment for 8 (eight) years and also to pay a fine of Rs. 10,000/- (Rupees ten thousand), in default, to suffer Simple Imprisonment for 2 (two) months and also convicted under Section 376 of the IPC.
3. The prosecution case, in brief, is that on 13.02.2019, one Sorbesh Ali lodged an F.I.R. before the Chapar Police Station alleging that on 07.02.2019, at about 02.00 a.m. (late night), while his minor daughter, i.e. the alleged victim, was washing her hand and feet at the tube well after answering nature's call, the appellant herein, Ahsraful Islam, all of a sudden, hold her from backside, dragged her to the backside of their house by gagging her mouth and Page No.# 3/21 committed rape upon her. Thereafter, the victim, on being free herself from the grip of the appellant, made hue and cry and hearing such hue and cry, some neighboring people rushed to the place of occurrence and they also identified the appellant while he was running away. The other accused persons named in the F.I.R. gave assurance to the complainant that they will settle the matter at the village meeting, but on 12.02.2019, the appellant did not agree with the village bichar and gave threatening to the family member of the complainant following which the F.I.R. was lodged against the appellant. Upon receipt of the said F.I.R., the Officer-In-Charge, Chapar Police Station, registered a case, being Chapar P.S. Case No. 47/2019, under Section 4 of POCSO Act and Section 376 of the IPC, and started investigation. During investigation, the I.O. visited the place of occurrence, recorded the statement of the witnesses, seized the birth certificate of the victim, sent the victim to Dhubri Civil Hospital for medical examination and produced the victim before the jurisdictional magistrate and recorded her statement under Section 164 Cr.P.C.
4. Thereafter, on completion of investigation, the I.O. laid Charge-Sheet against the present accused/appellant before the learned Special Judge, Bilasipara, Dhubri, under Section 376 of IPC read with Section 4 of POCSO Act, 2012. Accordingly, the learned Special Judge, Bilasipara, Dhubri, after considering the materials available on record and also finding prima facie case, framed charge against the present accused/appellant under the aforesaid Sections. The charges were read over and explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried.
5. During the trial of the case, the prosecution examined as many as 10 (ten) Page No.# 4/21 numbers of witnesses including the victim, who was examined as CW-1, the Medical Officer and the Investigating Officer and few exhibits. The accused/appellant was also examined under Section 313 Cr.P.C., wherein he took the plea of total denial and declined to adduce any evidence. Thereafter, the learned Special Judge, Bilasipara, Dhubri, hearing both the parties and on perusal of the materials available on records, vide judgment & order dated 29.08.2023, in Special (POCSO) Case No. 38/2019 (GR No. 201/2019), convicted the appellant under Section 4 of the POCSO Act, 2012 and sentenced him, as aforesaid.
6. On being aggrieved and dissatisfied with the aforesaid impugned judgment and order dated 29.08.2023, passed by the learned Special Judge, Bilasipara, Dhubri in Special (POCSO) Case No. 38/2019, the present appeal has been preferred by the accused/appellant.
7. It is submitted by Mr. R. Bora, learned counsel for the appellant, that the learned Trial Court below had failed to appreciate the evidence in its true perspective and thus came to an erroneous finding of guilt of the accused/appellant. The prosecution also failed to prove the guilt of the appellant beyond reasonable doubt and the evidence brought on record does not support the conviction. He further submitted that the F.I.R. was lodged after an unexplained delay of six days from the date of the alleged incident, which raises serious doubt about the veracity of the prosecution's case. The deposition of the prosecution witnesses suffer from serious contradictions, particularly with respect to the date, time, and place of occurrence, and none of the witnesses claimed to have seen the appellant committing the alleged act. He further submitted that as per the P.W.-1, the alleged victim wanted to marry the Page No.# 5/21 appellant and the F.I.R. was lodged only after the appellant refused to do so. PW-2, who is the complainant and father of the alleged victim, deposed that the appellant took the victim to a jungle far from home and committed sexual intercourse with her and upon the victim raising hue and cry, he and his wife reached the spot, after which the appellant fled. He stated that a village bichar was held, and the appellant initially agreed to marry the victim but later refused and for which, the F.I.R. had been lodged. However, in cross-examination, PW-2 admitted that it was a dark night on the date of occurrence. The learned counsel also pointed out that in his statement recorded under Section 161 Cr.P.C., PW-2 had stated that the incident was narrated to him by his wife (PW-
3), contradicting his evidence-in-chief wherein he claimed to have reached the place of occurrence upon hearing the victim's cry. Thus he submitted that none of the prosecution witnesses could state the exact date of the alleged occurrence. Although the victim deposed that the incident took place two years ago, other witnesses, including the P.W.-5, stated that the incident occurred either one year ago or 8-9 months back. The statement of the prosecutrix has not been corroborated by any other witness, and in absence of such corroboration, her sole testimony cannot be relied upon to convict the appellant.
8. Mr. Bora further submitted that the alleged victim deposed that initially she did not raise any hue and cry while she was being dragged by the appellant and only after the alleged sexual intercourse, which she claims to have resisted, she raised alarm. Her parents then reached the jungle and subsequently approached the appellant's family, who refused to accept their complaint or the village bichar and the F.I.R. was lodged only after the appellant refused to marry her. However, none of the witnesses saw the appellant committing rape and the Page No.# 6/21 statements of the prosecution witnesses are contradictory and do not inspire confidence, and therefore, cannot form the basis for convicting the appellant. More so, he submitted that the medical evidence also does not support the allegation of rape, as the medical officer found no signs of recent sexual assault or injury on the victim. In such circumstances, the presumption under Section 29 of the POCSO Act is not attracted. The learned Trial Court also failed to take note of the fact that the victim and her family were aggrieved due to the appellant's refusal to marry the victim, which suggests a motive for false implication. Moreover, the investigation was deficient as the I.O. did not collect the clothes of the victim or send them for forensic examination. The conviction is based solely on incomplete and unreliable circumstantial evidence, without establishing a complete chain of events pointing unerringly to the guilt of the appellant, which is not tenable in the eye of law. Accordingly, he submitted that the impugned judgment and order dated 29.08.2023, passed by the learned Special Judge, Bilasipara, Dhubri, in Special POCSO Case No. 38/2019, is illegal, unjust and unreasonable and hence, the same is liable to be set aside and quashed.
9. Mr. Bora also submitted that although the birth certificate of the victim was exhibited through the I.O., the issuing authority was not examined by the prosecution to prove its contents. In that regard, he also relied on a decision of this Court passed in the case of Manirul Islam @ Manirul Zaman Vs. State of Assam & Anr., reported in 2021 Legal Eagle (GAU) 310, wherein it was held that "any birth or death which had not been registered within one year of its occurrence, can be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of prescribed fee."
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10. Mr. Bora further submitted that from the evidences of the witnesses and also from the statements made before the I.O., it is seen that all the witnesses had improved their statements while adducing evidence before the learned Special Judge which also creates reasonable doubt in regards to the veracity of the prosecution case. In that regard also, he relied on a decision of this Court passed in the case of Abdul Hamid Vs. State of Assam, reported in 1988 Legal Eagle (GAU) 17.
11. Mr. Bora further submitted that it is a settled principle of law that the conviction can be based on the evidence of the sole testimony of the prosecutrix if it is reliable and trustworthy and is of sterling quality. It is also well settled that the oral testimony can be divided into 3 (three) categories, i.e. (i) wholly reliable, (ii) wholly unreliable & (iii) neither wholly reliable nor wholly unreliable, and in the case of third category, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of rule of prudence. In that context, he relied on a decision of Hon'ble Supreme Court passed in the case of Nirmal Premkumar & Anr. Vs. State Representation. By Inspector of Police (Criminal Appeal No. 1098 of 2024) and emphasized on paragraph No. 13 of the said judgment, which reads as under:
"13. This Court was tasked to adjudicate a matter involving gang rape allegations under section 376(2)(g), I.P.C in Rai Sandeep v. State (NCT of Delhi)5. The Court found totally conflicting versions of the prosecutrix, from what was stated in the complaint and what was deposed before Court, resulting in material inconsistencies. Reversing the conviction and holding that the prosecutrix cannot be held to be a 'sterling witness', the Court opined as under:
"22. In our considered opinion, the 'sterling witness' should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be Page No.# 8/21 immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more 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 qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such (2020) 10 SCC 573 (2012) 8 SCC 21 similar tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." (underlining ours, for emphasis)"
12. Citing the above referred judgment, it is submitted by Mr. Bora, learned counsel for the appellant, that in the present case, the prosecutrix cannot be considered as a sterling witness and her testimony is not reliable to sustain the conviction of the present accused/appellant. He further submitted that the testimony of the prosecutrix does not inspire confidence and under this circumstances, the judgment passed by the learned Session Judge is liable to be set aside and quashed.
13. On the other hand, Mr. Borthakur, learned Additional Public Prosecutor, submitted that although there was a delay of 5 (five) days delay in lodging the F.I.R., such delay is not fatal to the prosecution case as it may be attributed to the common practice of attempting a village bichar before approaching the Page No.# 9/21 police. Further he submitted that it is to be seen as to whether the prosecution could establish foundational facts in the present case. From the statements made by the victim as well as from the eye witness, i.e. the parents of the victim (P.Ws.- 2 & 3), it is seen that there is no such contradiction in their statements to disbelieve the victim or the parents of the victim, who run to the place of occurrence immediately after the occurrence and also saw the accused while running away from the place of occurrence. The testimony of the victim remained consistent in every stages and hence, it cannot be disbelieved. Further he submitted that it is the settled position of law that the conviction can be based solely on the evidence of the prosecutrix if it is believable and trustworthy. He further submitted that admittedly the victim was minor at the relevant time of incident which reveals from her birth certificate as well as from the medical evidence. More so, the defence never raised the issue that the victim was a major at the relevant time of incident. Rather from the birth certificate as well as from the medical documents, it reveals that the victim was a minor at the time of incident. He further submitted that there may not be any evidence or sign of recent sexual intercourse with the victim as the medical examination was done after 8 days of occurrence as there was a delay in lodging the F.I.R. itself. Accordingly, he submitted that there is no illegality in the order passed by the learned Trial Court which was passed after assessing the evidence on record in its true perspective.
14. Mr. Phukan, learned Amicus Curiae for the respondent No. 2, submitted that from the medical evidence as well as from the birth certificate, it is seen that the victim was a minor at the time of incident. Her testimony remains consistent at all stages of the proceedings and there is no reason to disbelieve her evidence who had specifically stated that the accused committed rape on Page No.# 10/21 her while she went outside of her house for attending a natural call. There may be some minor discrepancy in the evidences of the prosecution witnesses, but such inconsistencies should not be detract from the overall credibility of the prosecution case and in cases of this nature, the Court should not go for every technical aspects. More so, the birth certificate is a public document which is prepared by the public servant in discharing of his duty and unless its genuineness is specifically challenged, its evidentiary value cannot be doubted. Accordingly, he submitted that the learned Trial Court committed no error or mistake while passing the judgment convicting the accused/appellant and hence, the interference of this Court is not at all necessary.
15. I have given my anxious consideration to the submissions made by the learned counsel appearing on behalf of the parties and also perused the materials available on record.
16. Before arriving at any decision, let us first scrutinize the evidences of the witnesses.
17. C.W-1, the victim of the case, deposed that she knows the accused Ashraful and the occurrence took place about 2 years ago, at about 02.00 a.m., in a jungle. She further deposed in her evidence-in-chief that on the day of occurrence, at about 02.00 a.m., while she came outside of her home to pass urine, the accused dragged her to the jungle and forcefully committed sexual intercourse with her. She further deposed that initially, she did not raise hue and cry while she was being dragged by the appellant and she raised alarm only when the accused fled away from the place of occurrence after committing sexual intercourse with her.
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18. In her cross-evidence, she stated that the accused had the access to their home. She also stated that after the said incident, one village bichar was held and as the accused refused to marry her, her father lodged the F.I.R. against the appellant. She however denied when suggested that her father went to the house of the accused with a proposal for marrying her and also denied when suggested that the accused did not commit sexual intercourse with her by dragging her to jungle.
19. P.W.-1, in her evidence, had deposed that on the night of incident, which occurred about 1 (one) year ago, on hearing hue and cry, she came out and saw that the accused was doing bad thing with the victim at a nearby jungle of the house. She also noticed other people came and the accused fled away from the place of occurrence. She further deposed that the victim told her that while she came to pass urine, the accused caught her and dragged her to jungle. The village bichar was also held.
20. In her cross-examination, she stated that the occurrence took place at 02.00 a.m. and the F.I.R. was lodged when the accused refused to marry the victim. She denied when suggested that she did not see the accused at the place of occurrence and did not state the same before the I.O. also.
21. P.W.-2 is the informant and the father of the victim. As per him, the occurrence, took place about 1 (one) year ago, at about 01.00/02.00 a.m. He stated that while his victim daughter went outside of the house for attending nature call, the accused took his victim daughter to a jungle, which is far away Page No.# 12/21 from their house, and did sexual intercourse with the victim. Thereafter, on being hue and cry raised by the victim, he reached there along with his wife. He further stated that after seeing them, the accused fled away and thereafter a village bichar was held, wherein the accused accepted to marry the victim. But, later on, the accused refused to marry the victim and therefore he lodged the F.I.R.
22. In his cross-evidence, he denied when suggested that the victim did not state before the village people that the accused committed rape on her.
23. P.W.-3, who is the mother of the victim, also deposed in her evidence that on the night of occurrence, at about 02.00 a.m., her victim daughter went outside to pass urine and when they searched for her, they found her lying in the jungle and she was taken there by the accused. She further stated that the victim told her that the accused did bad thing with her and thereafter a village bichar was held.
24. In her cross-evidence, she stated that at the time of occurrence, it was dark and while she reached the place of occurrence, other people were not there.
25. P.W.-4 deposed that he came to know about the incident on the next day from one Abu Bakkar at the residence of Sarbesh. He further deposed that the said Abu Bakkar told him that on the previous night, while the victim went to the hand pump, situated near to their house, to wash her face and hand, the accused took her to a nearby jungle and committed rape on her. He also stated Page No.# 13/21 that on the next day, bichar was held in the residence of one Abdul Goni and in the said bichar, the accused denied committing rape on the victim. However, on being asked, the victim told him that the accused committed rape on her with a promise to marry her.
26. In his cross-examination, he denied when suggested that he did not know about the incident and also state before the police that he heard about the incident from Abu Bakkar.
27. P.W.-5 deposed in his evidence that the incident took place about 8/9 months ago, at about 02.00 a.m. As per him, on the night of incident, while hearing hue and cry in the residence of Sorbesh Ali (P.W.-2), he went there and heard that while the victim went out of her room to pass urine, the accused took her to a jungle and later on, the accused left the victim and fled away. He also deposed that a meeting was supposed to be held in the village but subsequently the same was not held.
28. In his cross-examination, he stated that at the place of occurrence, Abu Bakkar, Samir Ali and others were present, but he could not recognize the other persons. He denied when suggested that he had not stated before the police that he had not visited the place of occurrence.
29. P.W.-6 stated that he does not know about the incident, though he came to know that a bichar was held in the village.
30. P.W.-7 deposed that two years prior, at about 4.00/4.30 p.m., while he was Page No.# 14/21 returning home from New Charua Bakra Market, he heard about the misdeed committed by the accused to the victim from a group of people.
31. However, in his cross-evidence, he stated that he cannot say on which date the occurrence took place. He also stated that the case has been filed only because the accused refused to marry the victim.
32. P.W.-8 is the Medical Officer who conducted medical examination of the victim and as per his medical report, there was no sign of recent sexual intercourse on the victim.
33. P.W.-9 is the I.O. of the case and during investigation, he recorded the statement of the witnesses, statement of the victim under Section 164 Cr.P.C. and also got the minor victim medically examined by the doctor and further seized the birth certificate of the victim. But the I.O. had to be re-examined subsequently wherein it is found that at the time of seizure of the birth certificate, he inadvertently made a mistake and it was stated to be the birth certificate of Amela Khatun, i.e. the mother of the victim, instead of the victim. The birth certificate was also accordingly exhibited by him as M. Ext. No.-1 and in his re-examination, it was also found that inadvertently, he exhibited sketch map as Ext.-1, which ought to have been exhibited as Ext.-4, which is corrected during his re-examination. On the question put by the Court, the I.O. also replied accordingly that he seized the birth certificate of the victim vide MR No. 86/2019, though inadvertently it was mentioned as birth certificate of the Amela Khatun, mother of the victim.
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34. P.W.-10 is the another I.O., who subsequently filed the charge-sheet on the basis of investigation done by the P.W.-9 and the charge-sheet is accordingly filed under Section 376 of Indian Penal Code read with Section 4 of POCSO Act. In his cross-evidence, he admitted that he did not examine the neighboring people of the locality. However, he filed the charge-sheet on the basis of investigation/statements recorded by the earlier I.O.
35. So, from the above testimonies of the above prosecution witnesses, it is seen that the C.W.-1 and the P.Ws.-1, 2 & 3 are the vital witnesses of the prosecution and the other prosecution witnesses are the hearsay witnesses who came to know about the incident while visiting the house of the informant. P.W.- 4 came to know about the incident on the next date when he visited the house of the informant and similarly P.W.-5 also went to the house of the informant when he came to know about the incident. P.W.-6 had no knowledge about the incident and the P.W.-7 also heard about the incident from the informant that the accused/appellant had committed the alleged offence. P.W.-8 is the Medical Officer and the P.Ws.-9 & 10, as discussed above, are the Investigating Officers. Thus, the evidences of C.W.-1 and P.Ws.- 1, 2 & 3 have to be scrutinized/assessed carefully. All four witnesses corroborated to each other to the effect that the incident had happened around 2.00 a.m., when the victim/C.W.-1 went outside to attend her nature call and the accused allegedly grabbed her, gagged her mouth, dragged her to the nearby jungle and committed rape on her. However, it is notable that the victim admitted during her deposition that initially she did not raise any hue and cry while she was being dragged by the appellant and she only raised alarm when the accused fled away from the place of occurrence after committing sexual intercourse.
Page No.# 16/21 There is no explanation offered as to why she remained silent or did not raise any hue and cry during the initial phase of the incident, particularly, when the accused dragged her in the night at about 2.00 a.m. from her residence. In the same time, she also admitted in her cross-examination that the accused had access to their home and her parents as well as she herself proposed to marry him, but on his refusal only, the F.I.R. was lodged by her father.
36. P.W.-1 had claimed that she arrived at the place of occurrence hearing hue and cry from the victim and even she saw the accused doing bad thing with the victim at the nearby jungle of the house. She further stated that when the other people arrived, the accused fled away from the place of occurrence. However, she admitted in her cross-evidence that the F.I.R. was lodged by the P.W.-2 only when the appellant refused to marry the victim. Her evidence also reveals that she has not stated before the I.O. that she saw the accused at the place of occurrence, which otherwise creates a material contradiction between her oral testimony in the Court and her previous statement under Section 161 Cr.P.C.
37. Coming to the evidences of the parents of the victim, i.e. P.W.-2 (informant/father of the victim) & P.W.-3 (mother of the victim), it is seen that the occurrence took place at about 2.00 a.m. when their daughter went outside of the house to attend her nature's call and the accused took their daughter inside a jungle, which is far away from their house, and had sexual intercourse with her. Thereafter, hearing the hue and cry of the victim, they arrived there and saw the accused fleeing away from the place of incident. Thus, P.W.-2 heard hue and cry raised by his daughter from the jungle which is far away from his home, but he did not hear his daughter raising alarm while she was allegedly Page No.# 17/21 dragged by the accused in the night at 2.00 a.m., which is seems to be quite improbable. Thereafter a village bichar was held wherein the accused accepted to marry the victim, but later on, he refused to marry her and then only, the F.I.R. was lodged by P.W.-2/father of the victim. P.W.-3 also did not utter anything about the presence of the other people at the place of occurrence nor admitted the presence of the P.W.-1, who claimed her presence at the place of occurrence after hearing the hue and cry raised by the victim. Thus, it is seen that the presence of P.W.-1 is not uttered neither by P.W.-2 nor by P.W.-3 and except claiming their presence, they have not claimed the presence of other people at the place of incident. More so, from the evidence of the other P.Ws., it is seen that they came to know about the incident only when it was reported by the informant/P.W.-2.
38. Furthermore, from the evidence of the Investigating Officer, it reveals that he did not examine any witnesses who reside nearby the jungle wherein the accused/appellant allegedly raped the victim girl. It is also not a case that the jungle was near to the house of the P.Ws.- 2 & 3 as it is deposed by the P.W.-2 himself that the accused dragged his daughter into a jungle which is far away from their residence.
39. Coming to the medical evidence of the doctor, it is seen that he did not find any sign of recent sexual intercourse while examining the victim. However, admittedly, the medical examination of the victim was conducted after 7-8 days of the occurrence and hence, the probability of not finding any sign of recent sexual intercourse may be probable. More so, the medical evidence also did not speak about any other injury or mark of violence in the body of the victim.
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40. As regards to the issue raised by the defence concerning the genuineness of the birth certificate, it is seen that admittedly there as an inadvertent mistake on the part of the I.O., who mistakenly recorded the name of Amela Khatun instead of the victim's name while referring to the seized birth certificate. In the same time, it is also seen that the defence did not raise any objection or dispute regarding the age of the victim at the time of examination of prosecution witnesses and the plea is taken only at the time of appellate stage. However, from the material exhibit, i.e. the birth certificate, it is seen that it was issued by a public servant within 1 (one) year from the date of birth of the victim and the certificate issued by a public servant also cannot be questioned unless there is question of genuineness arises.
41. It is a settled law that the victim of a sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence if her sole testimony inspires confidence and trustworthy.
42. The Hon'ble Apex Court in the case of Moti Lal Vs. State of M.P. [(2008) 11 SCC 20] has held in paragraph Nos. 7 & 9 as under:
"7. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women as tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely Page No.# 19/21 implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour.
9. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short Evidence Act) similar to illustration (b) of Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v. Chandraprakash kewalchand Jain (1990 91) scc 550)."
43. But, here in the instant case, from the discussions made above, it is seen that the prosecutrix cannot be considered as sterling witness to base conviction solely on the basis of her statement. From her deposition, as discussed above, it reveals that although she was allegedly dragged from her house at around 2.00 a.m. to a jungle located at a distance, she did not raise any alarm during the act of being taken away or while the alleged offence was being committed. It was only after the accused fled the scene that she raised a hue and cry. Such Page No.# 20/21 conduct is inconsistent with natural human behavior and raised serious doubt about the truthfulness of her version. It is improbable that a girl being forcefully taken from her house to a distant jungle and subjected to sexual assault would remain completely silent during the entire incident. This part of evidence is totally unbelievable and does not inspire confidence. More so, the evidences of P.Ws.-2 & 3 that they heard the victim's cries from the jungle, which was admittedly far from their residence also does not appear believable or reliable. Their version is also not supported by any credible or independent evidence. These inconsistencies and improbabilities in the testimonies of the key witnesses create reasonable doubt regarding the veracity of the prosecution case. In such a scenario, the benefit of doubt goes in favour of the accused.
44. Thus, in view of the entire discussions made above, this Court is of the opinion that the prosecution could not prove its case beyond reasonable doubt and it is found that there is no cogent and reliable evidence to prove the case against the accused/appellant beyond all reasonable doubt. Accordingly, the appeal stands allowed. The judgment and order dated 29.08.2023, passed by the learned Special Judge, Bilasipara, Dhubri in Special (POCSO) Case No. 38/2019, stands set aside. The appellant is set at liberty forthwith on being acquitted of all the charges. Bond, if any, shall stand discharged. The appellant shall be released forthwith if not required in any other case.
45. Before parting, I put on record the appreciation for the valuable assistance rendered by Mr. A. Phukan, learned Amicus Curiae for the respondent No. 2, and I recommend that he is entitled to a fee, as per the notified rate, to be paid by the State Legal Services Authority.
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46. In terms of above, this criminal appeal stands disposed of.
47. Send back the case record of the Trial Court along with a copy of this judgment and order.
JUDGE Comparing Assistant