Gauhati High Court
Page No.# 1/14 vs The State Of Assam And Anr on 10 March, 2026
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/14
GAHC010110712022
2026:GAU-AS:3652-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./110/2022
PIYAR UDDIN LASKAR
S/O AMIN AHMED LASKAR
RESIDENT OF VILLAGE DHANIPUR, PO AND PS LALA, DIST HAILAKANDI,
ASAM 788163
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:NOZIR AHMED CHOUDHURY
S/O LATE ASADDAR ALI CHOUDHURY
RESIDENT OF WARD NO. X
LALA TOWN
PS LALA
DIST HAILAKANDI
ASSAM 78816
Advocate for the Petitioner : MR Z ALAM, MR. T A RAHMAN,MS. S NAZNEEN
Advocate for the Respondent : PP, ASSAM, MR. M H RAJBARBHUIYAN,MS. S RASUL (r-
2),MRS. R CHETRI (r-2) BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE PRANJAL DAS For the Appellant : Mr. Z. Alam For the Respondent(s) : Ms. A. Begum, Additional Public Prosecutor, Assam and Mr. M.H. Rajbarbhuiyan.
Page No.# 2/14
Date of Hearing : 10.03.2026
Date of Judgment : 10.03.2026
JUDGEMENT & ORDER
(M. Zothankhuma, J)
Heard Mr. Z. Alam, learned counsel for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor for the State and Mr. M.H. Rajbarbhuiyan, learned counsel for the respondent No. 2.
2. This appeal is against the impugned judgment dated 07-04-2022, passed by the learned Special Judge, Hailakandi in Special (POCSO) Case No. 12 of 2018, arising out of Lala P.S. Case No. 212 of 2018, by which the appellant has been convicted under Section 4 of POCSO Act 2012, r/w Section 377 IPC, for having committed an offence of penetrative sexual assault upon the victim boy, aged 11 years.
3. The learned counsel for the appellant submits that the evidence of the victim (PW- 1) is not corroborated by the evidence of his two friends (PW- 3 and PW- 5). He also submits that the evidence of the Doctor (PW- 4) is to the effect that semen had been found in the anal orifice of the victim, which was not sent to the FSL for examining whether it was human semen or otherwise. In any event, the evidence of PW- 1 is to the effect that the appellant had put his penis into the mouth of PW- 1 and had inserted his finger into the anus of PW-1. As only the finger of the appellant had been inserted into the anus of PW-1, there was no explanation as to how semen could have been found in the anus of the Page No.# 3/14 victim (PW- 1). He also submits that the statement of the victim (PW-1) made under section 164 CrPC has not corroborated the testimony of the victim made before the learned Trial Court. He accordingly submits that due to the above reasons, the learned Trial Court erred in convicting the appellant under section 4 of the POCSO Act, read with section 377 IPC.
4. Ms. A. Begum, the learner Additional Public Prosecutor, on the other hand submits that the testimony of the victim has been corroborated by his statement made under section 164 CrPC. Further, the evidence of the medical doctor (PW-
4), shows that he found semen stain and blood stain in the anal orifice of the victim. There was also tenderness in the external genitalia. Further, on examining the oral cavity, he found oral stain of semen. The same was, however, not sent for clinical examination. She also submits that the evidence of DW- 3, who stated that the father of the appellant had paid Rs. 5000/- to the informant (PW-2) as compensation, in respect of expenses incurred by the informant for filing the case, implied that the payment had been made for closing the present criminal case filed by the informant. This proved the guilt of the appellant. She accordingly submits that there is no infirmity with the decision of the learned Trial Court and the same should not be interfered with.
5. Mr. M.H. Rajbarbhuiyan, learned counsel for the respond No. 2, reiterates the submission made by the learned Additional Public Prosecutor.
6. We have heard the learned counsels for the parties.
7. The brief facts of the case is that an FIR dated 05-06-2018 was submitted Page No.# 4/14 by the victim's father (PW-2), stating that around 5.30 p.m., his son (PW-1) aged 11 years, was playing with his two friends in the college playground, when the appellant dragged his son to the old toilet of the college. In the toilet the appellant bit the cheek of the victim and inserted his penis into his anus. After making an extensive search for his son and hearing his scream, the informant (PW-2) rescued the victim.
8. Pursuant to the FIR dated 05-06-2018, Lala P.S. Case No. 212 of 2018 was registered on 05-06-2018 under section 377 IPC, r/w section 4 of the POCSO Act. After investigation of the case, the I/O submitted his charge-sheet, on having found a prima facie case under section 377 IPC r/w section 4 of the POCSO Act, against the appellant. The learned Trial Court thereafter examined 6(six) prosecution witnesses and 5(five) defence witnesses. After examination of the appellant under section 313 CrPC, the learned Trial Court came to a finding that the prosecution had been able to prove the guilt of the appellant under section 377 IPC r/w with section 4 of the POCSO Act.
9. The learned Trial Court has relied upon the evidence of PW-1, PW-4 and the Defence Witness- 2 (DW-2), to come to a finding that the guilt of appellant had been proved, as DW-2 had stated in his testimony that in the village meeting (bichar), the father of the appellant had been asked to pay Rs. 5000/- as compensation to the victim's family and that DW-2 had seen the appellant pushing the victim in the campus of Lala Rural College regarding the entry of a cow, due to which the appellant had chased the victim and the cow out of the college campus area. The learned Trial Court thereafter, vide the impugned judgment, convicted and sentenced the appellant to undergo the maximum Page No.# 5/14 punishment of imprisonment for life with a fine of Rs. 20,000/-, in default to undergo rigorous imprisonment for 6(six) months under section 4 of the POCSO Act and to undergo rigorous imprisonment for 10(ten) years for the offense under section 377 IPC.
10. The evidence of the victim (PW-1) is to the effect that, while he was playing with PW3 and PW5, the appellant suddenly appeared and told PW3 and PW5 to go away. On PW3 and PW5 leaving the place, the appellant took the victim (PW-1) to the college toilet wherein he put his penis into the mouth of the victim. On raising a hue and cry, the appellant slapped the victim and also bit his cheek. The appellant also inserted his finger into the anus of the victim and bit his buttock. The victim's father then started calling for the victim and on hearing the voice of the victim's father, the appellant fled. Thereafter, the victim went to his house and narrated the entire incident to his parents. He then stated that his father lodged a case and the police took him to the hospital. He was also taken to the court where his statement was recorded by a Magistrate.
In his cross-examination, the victim (PW-1) stated that, after the incident he had met his father (PW-2) in the "jangal" of his house, which is a pathway leading to his house. He then went into his house and asked his sister to bring a gamosa (a cotton towel). On his sister bringing out a gamosa, he took a bath in the pond and on entering his house, his father started scolding him and asked him as to why he had come home late. He asked his father not to beat him and then disclosed the incident to his mother and then to his father. His mother also disclosed the incident to his father. In his cross-examination, PW-1 denied the suggestion that he did not tell the police that the appellant had inserted his Page No.# 6/14 penis into the victim's mouth or that the appellant had not inserted his finger into his anus. He denied the suggestion that the father of the appellant was not a chowkidar in the college and that their cow had entered the college area, which was asked by the appellant's father to be taken away. PW-1 also denied the suggestion that due to the protests by the family of the victim regarding the cow, a false case had been registered against the appellant.
11. The evidence of PW-2, who is the informant and father of the victim, is to the effect that as his son did not return home till dusk, he searched for him. PW-2 stated that he was told by his son's friends that they had noticed his son going with the appellant. On calling for his son loudly, he saw his son coming from near the toilet of the college and one person running away in the opposite direction. He thereafter brought his son home and scolded him as to why he had returned late to the house. PW-2 then stated that the victim told him that the appellant had inserted his penis into the mouth of the victim and bit his cheek and buttocks. He also saw swelling on his son's cheek and buttocks. PW2 stated that he could not recognize the person who ran away from the toilet. He also stated that he could not say whether his son took a bath before reaching the house. He also denied the suggestion that there was a quarrel between the father of the appellant and himself, regarding leaving his cow to graze in the college field.
12. The evidence of PW-3, who is the 11 year old friend of the victim (PW-1), is to the effect that on the relevant evening, PW1, PW-3 and PW-5 were playing football in Lala College playground. When dusk appeared, they left for their homes.
Page No.# 7/14 In his cross-examination, PW-3 stated that the victim also came out from the playground with them. However, he could not say where the victim subsequently went.
13. The evidence of PW-5, who is another 11 year old friend of the victim (PW-1) is to the effect that the victim, PW-3 and PW-5, were playing football in the college playground. Thereafter, PW-3 and PW-5 started for their houses and he also saw the victim going towards his house on a different route.
In his cross-examination, PW-5 stated that the three of them had started proceeding towards their respective houses. The victim started going towards the West, as the house of the victim was in the western side of the field. On the other hand, the house of PW-3 and PW-5 being on the eastern side of the field, they had started going towards the eastern side of the field. He also stated that when they were leaving the field, the victim started washing his feet in the waterlogged side of the field.
14. The testimony of PW-3 and PW-5 shows that there was no other child besides PW-1, PW-3 and PW-5 playing football together in the playground. There is no mention made by PW-3 and PW-5 about the presence of PW-2 or the appellant, or that the appellant had chased away PW-3 and PW-5 and taken the victim towards the college toilet. PW-3 and PW-5 have also not corroborated the evidence of PW-2 that PW-3 and PW-5 had told PW-2 that they saw the victim (PW-1) going with the appellant. It is also pertinent to note that PW-3 and PW-5 have not been declared hostile witnesses by the prosecution. As such, there are major discrepancy/inconsistencies in the evidence of PW-1, PW-2, PW-
Page No.# 8/14 3 and PW-5, regarding the presence of the appellant before and after they played football. The appellant is also not seen by PW-3 & PW-5, when all the three children proceeded towards their respective homes.
15. The evidence of PW-4 who is the medical doctor, is to the effect that he examined the victim on 05-06-2018 at around 11:55 pm and on examining the victim, he found that the victim was anxious and frightened. He found bite marks on the victim's cheeks, chin, neck and chest. He also found semen stain and bloodstain in the anal orifice. There was tenderness in the external genitalia and he also found oral stain of semen in the oral cavity of the victim. He also stated that he did not collect any sample of semen for clinical examination and could not say whether it was human semen. He also stated that the bloodstain injury could be caused due to any other reason.
16. It is interesting to note that while the victim had stated that the appellant had bitten his buttocks, the evidence of PW-4 has not mentioned any bite marks in the buttocks of the victim. Further, while PW-4 had stated that there were bite marks on the chin, neck and chest of the victim, the victim has not stated anything with regard to the appellant biting him on the chin, neck and chest. The only corroboration with regard to the bite marks allegedly given by the appellant on the victim, is with regard to the bite marks on the cheeks.
17. It is settled law that a statement made under section 164 CrPC can be used, either to corroborate or contradict the testimony of a witness. In the present case, the victim's statement under section 164 CrPC was recorded by the Judicial Magistrate, after preliminary questions had been asked, which Page No.# 9/14 satisfied the Judicial Magistrate that the victim had the intelligence and maturity to understand the questions put to him and answer them correctly. The extract of the statement of the victim under section 164 CrPC is as follows -
"Yesterday at 4 pm I went to play with three of my friends Noor Jamal, Nabidul and Numanul Islam in the Lala Rural College field. After playing for about one and a half hours, the accused Pear came to the field and chased the three of my friends away. I started going home. He caught me and slapped me very tight. He bite my cheeks with his teeth very hard and dragged me to the old college toilet. He opened my pants and bite my left thigh with his teeth. Then he put his penis in my mouth and then put my penis in his mouth. Then he inserted his finger inside my anus. He bite on both sides of my waist. I tried to shout but he slapped me. He did this for a long time and then left. I pulled up my pants and came home and told my parents about the incident."
18. A reading of the victim's statement under section 164 CrPC is to the effect that he played with three friends in the Lala Rural College field. The three friends' names are Noor Jamal (PW-3), Nabidul and Numanul Islam (PW-5). This statement about playing with three friends is not reflected in the evidence of the victim, PW-3 and PW-5. The testimony of PW-1, PW-3 and PW-5 all show that there were only three boys, including the victim, playing together. There is no mention of "Nabidul" in any of the three testimonies of PW-1, PW-3 and PW-5 made before the learned Trial Court.
19. The victim had also stated in his statement under section 164 CrPC that the appellant came to the field and chased away his three friends. However, as stated earlier, there is no evidence given by PW-1, PW-3 and PW-5 before the learned Trial Court that three friends had been chased away. PW-1, in his Page No.# 10/14 testimony, has referred to only two friends having been chased away. The above being said, PW-3 and PW-5 in their testimonies have not mentioned Nabidul as one of the boys who played football with them and they have not stated that the appellant chased them away. In his statement under section 164 CrPC, the victim has stated that the appellant had bitten his left thigh with his teeth. However, the victim or PW-4, have not stated in their testimonies, that the appellant had bitten the victim on his left thigh or that there were bite marks on the left thigh. In his statement under section 164 CrPC, the victim has stated that the appellant put the victim's penis into the appellant's mouth. The testimony of the victim is completely silent on this score. The victim in his statement under section 164 CrPC, has also stated that the appellant bit him on both sides of his waist. This is also conspicuously absent in the testimony of the victim and PW-4. The victim has also stated that after the appellant left, the victim pulled up his pants and went home, where he told his parents about the incident. This is completely at variance with the testimony of PW-2 who is the father of the victim. PW-2 in his testimony has stated that he saw his son coming out near the college toilet and then he took his son home.
20. The above contradictions and inconsistencies in the testimonies of the prosecution witnesses, which is also not corroborated by this victim's statement under section 164 CrPC, does not inspire our confidence, as the major discrepancies relate to various facets of the prosecution case, which goes to the root of the matter. Though some parts of the victim's testimony appear to be truthful, the testimony as a whole does not appear to be truthful.
21. Prior to the testimony of the victim (PW-1) being recorded by the learned Page No.# 11/14 Trial Court, the learned Trial Court had asked the victim preliminary questions and had recorded its satisfaction to the effect that the court found the victim to be mature enough to understand the questions put to him and give rational answers to the same question. As such, in the view of this Court, the testimony of the victim, if found truthful as a whole, would have been enough to convict the appellant. This is due to the fact that the Supreme Court, in various decisions, has held that conviction can be based on the sole testimony of the prosecutrix, provided the same is found to be truthful and inspires the confidence of the court. It has also been held in various decisions that minor discrepancies and contradictions should not be a ground to disbelieve on otherwise reliable prosecution case, unless and until the same goes to the root of the matter.
22. In the case of Ganesan Vs. State represented by its Inspector of Police, reported in (2020) 10 SCC 573, the Supreme Court has held that the testimony of a child victim of sexual assault, if it is trustworthy, cogent, reliable and confidence inspiring, requires no corroboration. The evidence must be of sterling quality. The Supreme Court further held that Courts must not adopt a hyper technical approach, as sexual offences are committed in secrecy and often without witnesses.
23. It is settled law that minor inconsistencies, discrepancies or omission can be ignored, provided the witnesses remain consistent on material particulars and the same does not go to the root of the matter. In the case of State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, the Supreme Court held that minor contradictions or insignificant inconsistencies in the statement of a prosecutrix should not be a ground for throwing out an Page No.# 12/14 otherwise reliable prosecution case.
24. In the case of Rai Sandeep @Deepu Vs. State (NCT of Delhi), reported in (2012) 8 SCC 21, the Supreme Court has held that conviction can be based on the sole evidence of a sterling witness, whose stand remains the same, from start to finish.
25. In the present case, there are major inconsistencies/ discrepancies in the victim's testimony when compared with his statement under Section 164 Cr.P.C. Further, in view of non-corroboration of the evidence of the victim by the evidence of other prosecution witnesses, the conviction cannot be based on the sole evidence of the victim, especially when the victim has been found to be competent to give evidence by the learned Trial Court. Though every inconsistency or contradiction may not vitiate the trial, the inconsistencies in this case goes to the root of the matter and leaves us wondering, as to whether the appellant was really the perpetrator of the crime. As can be seen from the evidence of the defence witnesses there appears to be some enmity between the parties. The village meeting (bichar) does not appear to be in relation to any sexual assault on the victim by the appellant. Further, the evidence of the Investigating Officer (PW-6) is to the effect that the victim did not tell him that the appellant had inserted his penis into his mouth or inserted his finger into his anus. The victim also did not tell him that the appellant had bit his cheeks and buttock or had slapped him. PW-6 further stated that PW-2 had not told him that the victim had told PW-2 that the appellant had inserted his penis into the mouth of the victim and that the appellant had bit the cheeks of the victim. The evidence of PW-3 and PW-5 do not corroborate the evidence of the victim, regarding the presence of the appellant. There is discrepancy in the evidence of Page No.# 13/14 the victim, PW-2 and PW-4. As there are glaring discrepancies in the evidence of the prosecution witnesses, we are unable to hold that the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt.
26. With regard to the evidence of the defence witnesses Nos. 1 to 5, we find that the same is basically to the effect that the father of the appellant was a chowkidar in the Lala Rural College. Due to cows grazing inside the college campus, the Principal of the Lala Rural College had asked the informant to restrict the entry of his cow inside the college campus. However, the cow of the informant (PW-2) had entered into the college campus along with the victim, due to which the appellant had chased the victim and the cow from the college campus. A quarrel ensued with regard to the above issue and a village meeting (bichar) was also held, wherein the father of the appellant had been directed to pay Rs.5000/- to the informant as compensation, in respect of the expenses incurred by the informant in filing the case.
27. On going through the evidence of defence witnesses, we do not find that the village meeting was relatable to any sexual offense allegedly committed by the appellant against the victim. It pertained basically to the grazing of cows not being allowed inside the college campus. If the "bichar" pertained to the alleged sexual offence, the organisers of the "bichar" could have been made prosecution witnesses to prove the prosecution case.
28. The examination of the appellant under section 313 CrPC shows that the appellant has denied any wrongdoing towards the victim and is basically to the effect that due to the cow of the informant entered the college campus and damaged the flower plantation, which required the appellant's father to chase Page No.# 14/14 the cow, leading to a quarrel between the appellant and the informant. The informant then fell down and a threat had then been issued by the informant that he would teach the appellant a lesson.
29. On considering all the above facts, we are of the view that the learned Trial Court could not have convicted the appellant as there were glaring discrepancies and contradictions in the testimonies of the prosecution witness. Further, the statement of the victim(PW-1) under section 164 CrPC did not corroborate his testimony. In fact, there are major contradictions in the testimony of the victim vis-à-vis other prosecution witnesses (PWs-3 & 5), which goes to the root of the matter. Accordingly, we find that the prosecution has not been able to prove the guilt of the appellant under section 377 IPC r/w Section 4 of POCSO Act, 2012 beyond all reasonable doubt. The impugned judgment and order dated 07-04-2022, passed by the learned Special Judge, Hailakandi in Special (POCSO) Case No. 12 of 2018, is hereby set aside.
30. The respondent authority is accordingly directed to release the appellant from the judicial custody immediately, if not wanted in any other case.
31. Send back the original TCR.
JUDGE JUDGE Comparing Assistant