Gauhati High Court
Page No.# 1/3 vs The State Of Assam And Anr on 9 January, 2026
Page No.# 1/31
GAHC010198652024
2026:GAU-AS:443
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./351/2024
NITUL SARMAH
S/O. LATE NARAYAN SARMAH, R/O. VILL.- BAGESGWARIPARA, P/S.
BONGAIGAON, DIST.- BONGAIGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM.
2:KUSHAL DEKA
S/O. LT. JAGANNATH DEKA
R/O. VILL.- SUALKUCHI
SANTITUL
P/S. SUALKUCHI
DIST.- KAMRUP
ASSAM
PIN-781103
Advocate for the Petitioner : MR SARFRAZ NAWAZ, ADV.
Advocate for the Respondent : MR. K.K. Das, Addl.PP, ASSAM, MR. A AHMED, AMICUS
CURIAE(R-2) Page No.# 2/31 BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA Date on which judgment is reserved : 20.11.2025 Date of pronouncement of judgment : 09.01.2026 Whether the pronouncement is of the : N/A operative part of the judgment ?
Whether the full judgment has been :Yes
pronounced?
JUDGMENT AND ORDER (CAV)
(Sanjeev Kumar Sharma, J)
1. Heard Mr. S. Nawaz, learned counsel for the appellant. Also heard Mr. K.K. Das, learned Addl. Public Prosecutor for the State respondent and Mr. A. Ahmed, learned Amicus Curiae for the respondent No.2.
2. This appeal is directed against the Judgment & Order dated 29.08.2024 passed by the learned Sessions Judge, Kamrup, Amingaon in Sessions Case No. 95/2015, convicting the appellant under Section 376 of the Indian Penal Code, 1860 and sentencing him to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 25,000/- (Twenty Five Thousand Rupees) in default to undergo simple imprisonment for another 6 (six) months.
3. The prosecution case as unfolded during trial in short is that one Kushal Deka on 22.03.2014 lodged an FIR before the O/C Sualkuchi P.S. against Nitul Page No.# 3/31 Sarmah and Debajit Sarmah inter alia stating that on 21.03.2014, at around 6.30 pm, the daughter of the informant 'X', aged 27 years along with one Putuli Deka had gone to the Sualkuchi market and at that time, they were kidnapped by the FIR named accused persons in a four wheeler vehicle and accused No.1 Nitul Sarmah with the assistance of accused No.2 committed rape upon his daughter and thereafter, left her at Sualkuchi Bhagyashree road in unconscious state. The informant accordingly prayed to take necessary action.
4. On the basis of the above FIR, O/C Sualkuchi P.S. registered Sualkuchi P.S. Case No. 27/14 under Sections 365/376/34 IPC and entrusted S.I. B. Deuri to investigate the case. The I.O during the course of investigation arrested the accused persons, recorded the statements of the victim/prosecutrix and other witnesses, medically examined the prosecutrix, collected the medical report as well as the FSL report, seized the vehicle, prepared sketch map and also recorded the 164 Cr.PC statement of the victim and another witnesses through the learned Magistrate and after completion of investigation, submitted charge sheet against the accused persons under Sections 366/376/34 IPC.
5. On being committed, the learned Trial Court framed charge against the accused Nitul Sarmah under Sections 366/376 of IPC and against accused Debajit Sarmah under Sections 366/34 of IPC. On being read over and explained, the accused persons pleaded not guilty and claimed to be tried.
6. Prosecution in order to bring home the charges against the accused persons has examined altogether 10 PWs including the M.O and I.O. Section 313 Cr. PC statements of the accused persons were recorded.
Page No.# 4/31
7. PW-1/Prosecutrix deposed during her evidence before the Court on 28.07.2016 that the informant is her father and she knows the accused persons of this case. She deposed that her age is 27 years and on 21.03.2014 her neighbor Putuli, came to her house and asked her to accompany her to the Sualkuchi bazar, at about 6.30 pm in the evening to purchase a recharge voucher and she accompanied her and they went in the direction of the road in front of Saraswati Bhawan. She deposed that the card shop was at a little distance from the Saraswati Bhawan and at that time, the accused persons came in an Eon vehicle and stopped near them and then Putuli said that she will go to see the under construction house of the accused Debajit and she boarded that vehicle and also made her board that vehicle and at that time, she could recognize both the accused persons who were in the vehicle.
She further deposed that accordingly they went in the vehicle to the under construction house of the accused Debajit in Bongshor and at the time, it was evening. She further deposed that from there, they were supposed to return home, however, at that time, the accused Debajit pulled her by the hand and took her inside that under constructed house and handed her over to the accused Nitul, who closed the door and forcefully committed sexual intercourse upon her in a room in that house. She further deposed that she had tried to raise screams, but the accused Nitul had gagged her mouth and the accused Nitul committed forceful sexual intercourse upon her for one hour and during that he touched her breasts, kissed her and then he wore condom and inserted his genital into her genital. She further deposed that while the accused Nitul was committing forceful sexual intercourse upon her, accused Debajit and her friend Putuli was outside the under constructed house and they did not help her.
Page No.# 5/31 She further deposed that after committing intercourse, there was bleeding from her vagina and then the accused Nitul brought a dirty cloth smeared with cement and sand and asked her to wipe the bleeding on her genital and since she was having a lot of bleeding, she wiped her bleeding from her genital with that dirty cloth and she got very tired at that time.
She further deposed that after staying there for some time, accused Nitul assured her that he will take her to the doctor for her bleeding and then he along with Putuli and Debajit took her in that Eon vehicle towards Sualkuchi medical and upon reaching Sualkuchi medical, the accused Nitul went and brought some tablets and Putuli gave her one such tablet and she took it without reading the label as she wanted to stop her bleeding. She further deposed that after the incident, while coming from the under constructed house to the Sualkuchi medical, she had not raised any screams or hue and cry as her physical condition was very bad and on the way, she had come in the vehicle, sleeping. She further deposed that thereafter, the accused persons brought them in that vehicle to the front of Saraswati Bhawan and dropped them there and Putuli asked her to come to her house as she told her that she had more medicines to stop her bleeding and at that time she was very weak but in the interest of stopping her bleeding, she slowly walked to her house and after reaching the house of Putuli, she sat on a bed in their house and Putuli gave her one tablet and after taking her bleeding increased and her clothes and their mattress got stained with her bleeding.
She further deposed that at the time of boarding the vehicle, after the incident, her clothes were stained with the bleeding and in their house, Putuli Page No.# 6/31 gave her new underwear, other clothes and one Stay Free (sanitary pad) to protect her bleeding and she wore that and left her previous clothes there and her blood stained clothes remained in the house of Putuli and then she went to the toilet and removed the Stay Free and used another one and took rest for some time in their house. She further deposed that then she told Putuli that if she had not accompanied her, the incident would not have taken place and that she is also involved and after hearing this, Putuli's elder sister Matu slapped her and Matu also snatched the gold chain she was wearing and kept it. She further deposed that after 10 pm, Putuli came to drop her home and at that time she was wearing the clothes which Putuli had given her at her home but Putuli did not give her blood stained clothes.
She deposed that after reaching her home, she informed and narrated about the incident to her family members and on 22.03.2014, her father lodged the case against the accused persons. She deposed that on the night of the incident itself, her father had gone to the police station but since it was quite late at night, he returned back and on the next day morning, police had come to their house and thereafter, on the same day in the morning, her father went to the police station to lodge the instant case against the accused persons and she also accompanied her father to the police station. She further deposed that the police examined her with regard to the incident and recorded her statement and on 22.03.2014, the police had taken her to the GMCH for medical examination and on that day also, she was having some bleeding and her urine was quite red. She further deposed that in the GMCH, she was examined by the doctor. She exhibited her medical report as Ext.1 and her signatures thereon as Ext.1(1) and Ext. 1(2).
Page No.# 7/31 She deposed that she does not know as to whether the police seized her blood stained clothes later on, which she was wearing at the time of the incident and which were kept in the house of Putuli. She further deposed that the police also took her to the Court for recording her statement and her statement was recorded before the Magistrate. She exhibited her statement as Ext.2 and her signature thereon as Ext. 2(1).
During cross-examination, she stated that about 10 days prior to the incident, Putuli had introduced the accused Debajit as her best friend and introduced accused Nitul as her relative. She further stated that on the day of the incident, when she had gone out towards the market, only Putuli was with her and she further stated that she does not remember the registration number of the Eon vehicle in which she was taken on the day of the incident. She stated that she knew the accused Debajit about 10 days prior to the incident, after being introduced to him by Putuli and when Putuli had said that they will see the under constructed house from outside, then she accompanied her voluntarily. She denied that she had voluntarily gone inside the under constructed house and accused Debajit had not forcefully taken her inside that under constructed house. She denied that after taking her inside the under constructed house, accused Debajit had not handed her over to the accused Nitul. She denied that Matu, the elder sister of Putuli had slapped her because she had gone to their house, to commit bad act. She denied that she narrated about the incident to her parents out of fear that, Matu the elder sister of Putuli would tell her parents about the incident. She denied that she did not state before the police that Putuli came to her house on the day of the incident and took her away with her. She denied that she did not state before police and in Page No.# 8/31 her statement before the Magistrate that-then Putuli said that she will go to see the under constructed house of the accused Debajit and she boarded that vehicle and also made her board that vehicle. She stated that she does not remember as to whether she stated before the police and in her statement before the Magistrate that-at that time, the accused Debajit pulled her by the hand and took her inside that under constructed house and handed her over to the accused Nitul.
She denied that she did not state before police and in her statement before the Magistrate that-after committing intercourse, there was bleeding from her vagina and then the accused Nitul brought a dirty cloth smeared with cement and sand and asked her to wipe the bleeding on her genital and since she was having a lot of bleeding, she wiped her bleeding from her genital with that dirty cloth.
She stated that while the accused Nitul was committing rape upon her, he had gagged her mouth with his hands and by gagging her mouth with his hands, he raped her for about one hour.
She admitted that she did not state before police and in her statement before the Magistrate that while committing forceful intercourse upon her, the accused Nitul had used a condom.
She stated that from Saraswati Bhawan to Putuli's house, it would be about 100 meters. She stated that while walking this distance, she had not raised any hue and cry nor she had told about the incident to anyone.
Page No.# 9/31 She admitted that she did not state before police and in her statement before the Magistrate that-in their house, Putuli gave her new underwear, other clothes and one Stay Free to protect her bleeding and she wore that and left her previous clothes there and her blood stained clothes remained in the house of Putuli and then she went to the toilet and removed the Stay Free and used another one due to the bleeding.
She admitted that she did not state before police and in her statement before the Magistrate that-then, she told Putuli that if she had not accompanied her, the incident would not take place and that she told her that she is also involved.
She admitted that she stated before the police that-after hearing this, Putuli's elder sister Matu slapped her and Matu also snatched the gold chain she was wearing and kept it and she had told Putuli that if she had gone to buy the recharge card, the incident would not have taken, as she had asked her to accompany her to the market only. She admitted that she did not state before the Magistrate about this facts.
She admitted that she did not state before police and in her statement before the Magistrate that-after sometime when she felt that her bleeding had decreased, she told Putuli that they should leave her at home and also give her back her blood stained clothes, but she refused to give back her clothes.
She denied that she did not state before the police that-Putuli had threatened her not to tell about the incident to anyone or otherwise she will Page No.# 10/31 face dire consequences. She stated that she does not remember as to whether she stated before the Magistrate about this facts.
She denied that she did not state before police that her blood stained clothes were in the house of Putuli. She denied that she stated before the Magistrate that accused Nitul used to talk to her over the telephone.
She denied that she had a good relation with Nitul from before and also denied that due to any such reason, she had voluntarily gone with him to the under constructed house and had sexual relation with him with her own consent and also denied that due to any such reason, she had not raised screams or hue and cry.
She stated that there are 3 houses in between their house and the house of Putuli and though she was very unwell, on the night of the incident, after she had narrated the incident to her parents, she was not taken to hospital and she was taken to the hospital on the next day by the police.
She denied that as she voluntarily had sexual relations with the accused out of fear of being caught by her parents, she had gone to the house of Putuli after the incident instead of going to her house.
She denied that when she became very unwell, she involved the accused Nitul in the incident, by giving a false allegation in order to save herself.
She denied that she had not raised any hue and cry at the time of incident and also at the time of returning after the incident as the whole incident had Page No.# 11/31 taken place voluntarily with her consent.
8. PW-2/Kushal Deka deposed during his evidence that he knows both the accused persons of this case and exhibited his ejahar as Ext.3, which was written by one Suren Das as per his instruction and after being written, it was read over to him and after understanding its contents thereof, he put his signature thereon vide Ext.3(1). He exhibited the printed form of FIR as Ext. 4 and his signature theron as Ext. 4(1). He deposed that on 21.03.2014 in the evening at about 6.30 pm, his daughter/the prosecutrix went out for marketing with Putuli Deka, the daughter of Lt. Haren Deka and subsequently at Bhangagarh chowk, the accused person Nitul Sarma with the help of accused Debajit Sarma kidnapped his daughter in a blue coloured 4 wheeler vehicle and later, the accused Nitul Sarmah committed rape upon his daughter with the help of accused Debajit Sarmah. He deposed that the rape was committed in a newly constructed house of accused Debajit Sarmah in Bongshor and thereafter, his daughter was brought in the same vehicle and was left at Bhagyeswari path in an unconscious condition and he heard the above from his daughter (the prosecutrix) when she returned home at night about 9 pm on the same day with severe bleeding and thereafter, he went to police station and verbally informed about the incident and the police assured them that they will take action against the accused persons and thereafter, he returned back home. He further deposed that on the next morning at about 8.30/9 AM, he went to the police station and lodged the ejahar and the police examined him and recorded his statement and in the meantime, the police had apprehended the accused persons and also seized the vehicle. During cross-examination, he stated that at the time of the incident, his daughter was aged 22-23 years and further stated that his Page No.# 12/31 daughter did not lodge the ejahar. He further stated that the distance between Bhagyeswari path and his house would be about 2 km. He denied that he did not state before the police about the bleeding suffered by his daughter due to the incident. He further stated that the distance between his house and the police station and his house and hospital would be about 4-5 km. He stated that he did not take his daughter the prosecutrix to the hospital and he also did not give her immediate treatment and he left it to the police station. He admitted that he did not state before police and in ejahar that on the date of occurrence, he had verbally informed the police. He stated that he saw both the accused persons in the police station after the incident. He stated that he does not know if there was any love affairs between the accused Nitul and his daughter prosecutrix. He denied that on the day of incident, his daughter had herself gone to meet the accused Nitul and also denied that whatever had happened with her on that day had happened with her consent. He stated that he saw the vehicle which was involved in the incident at the police station and it was blue coloured. He stated that he does not know if his daughter had any telephonic conversation with the accused persons. He stated that the house of Putuli reaches after their house while coming from Bhagyeswari path and after the incident, the clothes with blood stain of his daughter were changed in the house of Putuli and thereafter, after making her wear fresh clothes, she was brought by Putuli to their house. He stated that the blood stained clothes were kept in the house of Putuli and he heard this about change of clothes from his daughter.
9. PW-3/Jyoti Deka @ Putuli Deka deposed that she knows accused Debajit Sarma and also knows accused Nitul Sharma from the time of the Page No.# 13/31 incident and the incident took place on 21.03.2014. She stated that on that day since morning time, the prosecutrix asked her to accompany her to meet accused Nitul Sarmah and in the evening at about 6 pm, she accompanied her to meet said Nitul Sarmah. She stated that initially, she was not keen to go but as the prosecutrix insisted, she agreed to accompany her and they started going on a trekker. She stated that the prosecutrix paid the fare for her ticket in the trekker and during the journey in the trekker, the prosecutrix was talking on the phone from time to time with accused Nitul Sarmah. She stated that she was told that the park was closed and thereafter, she took her to a half constructed house belonging to accused Debajit Sarmah and they waited there for about five minutes and thereupon, accused Debajit Sarmah and Nitul Sarmah arrived there on their bicycle. She stated that the prosecutrix introduced her to Nitul Sarmah and thereafter, for about two minutes, all four of them were together and thereafter, Nitul Sarmah took the prosecutrix to some side for some talk and Debajit Sharma and she stayed outside. She deposed that Debajit Sarmah scolded her as to why she has come but also told her that without her, the prosecutrix might not have been able to come and Debajit further told her that Nitul Sarmah wanted to meet the prosecutrix and thereafter, Nitul told her about Bongshar park and subsequently, the said half constructed building/basti. She deposed that there are three rooms in the half constructed building meant for rent and Nitul Sarmah and prosecutrix went to one of those rooms saying that they will talk and while Debajit Sarmah was talking to her, he received a phone call that his sister had a scooter accident and thereafter, he left. She deposed that accused Debajit was present at that place for about 10/15 minutes. She deposed that after about 40/45 minutes, both Nitul and prosecutrix came out of the room. She deposed that thereupon, she saw that the prosecutrix was having Page No.# 14/31 bleeding and she became nervous and sat down crying and thereupon, Nitul Sarmah consoled her and asked her not to get scared and said that "Kiba eta bhul hoi gol." She deposed that though she was nervous, she could see the prosecutrix with the help of Nitul Sarmah had taken some precaution with some clothes available there in the construction area and Nitul asked the prosecutrix as to whether she will be able to go home and whether she has to be dropped at home. She deposed that Nitul brought his vehicle and asked them to sit in the vehicle saying that he will drop them home and they boarded in that vehicle and on the way, there was a pharmacy near Sualkuchi chowk and Nitul brought medicines for the prosecutrix to stop bleeding and he gave her that medicine and asked her to take that medicine at that time itself and also asked her to take the remaining medicines on the next day and then they got down at Saraswati Bibah Bhawan near their house and from there, they came walking to her house. She deposed that the prosecutrix stayed in their house for about one hour and she was in lot of tension and also having bleeding. She deposed that prosecutrix borrowed some clothes from her, changed and put her earlier clothes in a polythene packet and thereafter, taking that polythene, she went to her house and on the next day police had come to their house and questioned her. She deposed that she was also taken to the Court for recording her statement and her statement was recorded vide Ext. 4 and her signature thereon as Ext.4(1). During cross-examination, she stated that prior to the incident, the prosecutrix and accused Nitul were having a love affair and they used to talk on telephone and also exchanged text messages on phone and on the date of the incident, the prosecutrix and Nitul had entered the half constructed house voluntarily.
Page No.# 15/31
10. PW-4/Runumi Devi deposed during her evidence that she knows the accused persons and the incident took place in the year 2014 and also deposed that she does not know about the incident but stated that at that time police came to their house and seized a vehicle belonging to accused Nitul Sarmah and she put her signature on the seizure list vide seizure list Ext.5 and her signature thereon as Ext.5(1).
The witness was not cross examined by defence.
11. PW-5/Rupsikha Sarma deposed during her evidence that she knows both the accused persons and one is her brother and another is her cousin and the incident took place in the year 2014 in the month of March and on 27.03.2014, the vehicle of accused Nitul Sarmah was in their house campus and police came there and seized the vehicle vide Ext.5 seizure list wherein, she put her signature as Ext.5(2). She deposed that except seizure of the vehicle, she does not know anything about the incident but she heard from police that accused Nitul Sarmah has some affairs with a girl for which Nitul Sarmah used to come to their house. During cross-examination, she stated that on the day of occurrence at around 6 pm, she went to a doctor for injuries received on her leg with accused Debajit Sarmah.
12. PW-6/Manalisha Deka deposed during her evidence that she does not know the accused persons but she knows the informant and on the day of occurrence, she was in her aunt's house till evening and at around 9.45 pm, she saw the prosecutrix in their aunt's house and that she probably came with her sister Jyoti. She deposed that the prosecutrix then changed her cloth in her Page No.# 16/31 house and by that time, her sister told her that she along with the prosecutrix went to Bongsor where Prosecutrix met her boyfriend. During cross- examination, she stated that her sister was requested by the prosecutrix to accompany with her and asked her to say that they were went out for purchasing recharge card and later she came to know that prosecutrix went to meet her boyfriend.
13. PW-7/Bhogesh Ch.Deuri deposed that on 22.03.2014 while he was working as 2nd O/C at Sualkuchi PS on that day, on receipt of an Ejahar at 9 AM from one Kushal Deka the O/C Sualkuchi PS registered Sualkuchi PS Case No. 27/2014 under Sections 365/376/34 IPC and entrusted him with the charge of investigation and after getting the charge of investigation, he on 22.03.2014 visited the house of the victim and then recorded her statement and brought her to the GMCH hospital for her medical examination. He deposed that on the same day, he visited the PO which is a vacant house situated at Bhonsar Nagar under Sualkuchi PS and prepared sketch map vide sketch map Ext.6 and his signature thereon as Ext.6(1) and recorded the statement of the witnesses at the PO and thereafter, he returned back to the PS. He deposed on that very day, accused persons surrendered at their PS and he arrested them and after medical examination of the accused, he produced them before the JMFC, Hajo and the statement of the victim girl was recorded by Judicial Magistrate under Section 164 Cr. PC and the statement of Jyoti Deka @ Putuli Deka was also got recorded by Judicial Magistrate Hajo and the vehicle bearing no. AS01AX3349(Eon) was seized from the house of accused Debajit Sarmah vide Ext.5 and his signature thereon as Ext.5(3). He further deposed that on 26.06.2014, the documents of the vehicle was seized from the accused Nitul Page No.# 17/31 Sarmah vide Ext.7 seizure list and Ext.7(1) as his signature thereon and he collected the medical report of the victim and after completion of investigation, he submitted charge sheet against accused Nitul Sarmah and Debajit Sarmah under Sections 365/376/34 IPC vide CS Ext.8 wherein his signature as Ext.8(1). During cross-examination, he stated that the occurrence happened on 21.03.2014 and he visited the place of occurrence on 22.03.2014 and the Sualkuchi PS is at a distance of 2 km from the house of the victim and at the PO, he examined Jiten Bejbaruah and Soneswar Ujir whom he met at the PO. He stated that the prosecutrix in her statement before him did not disclose that Putuli came to her house on the date of incident and took her with Putuli and also did not state before him that Putuli said that she will go to see the under constructed house of the accused Debajit and also did not state that the accused Debajit pulled her hands and took her inside that under constructed house and handed over her to the accused Nitul. He further stated that the prosecutrix did not state before him that accused Nitul brought a dirty cloth smeared with cement and sand and asked her to wipe the bleeding on her genital and that since she was having lot of bleeding so wiped her bleeding and genital with that dirty cloth and also did not state that Putuli gave her new underwear, one Stay Free to protect her bleeding and she wore that and also did not state that she told Putuli that if she would not had accompanied her, the incident would not had taken place and that she told Putuli that she was also involved and that she told Putuli that if she had not gone to buy the recharge card, the incident would not have happened as she had asked her to accompany her to the market. He further stated that the prosecutrix did not state before him that after sometime when she felt that her bleeding had decreased, she told Putuli that they should leave her at home and also give her back her blood Page No.# 18/31 stained clothes, but she refused to give back her clothes. He further stated that the prosecutrix did not state before him that Putuli had threatened her not to tell about the incident to anyone or otherwise she will face dire consequences. He stated that he could not seize the wearing clothes of the prosecutrix as the clothes were already washed by the prosecutrix and he visited the PO at 11.20 AM of 22.03.2014.
14. PW-8/Kaushik Kr. Sharma deposed that on 25.03.2014, he was working as JMFC, Hajo and on that day, he examined witness Jyoti Deka @ Putull D/O Lt.Harendra Deka in connection with Sualkuchi PS Case No. 27/14 under Sections 365/376/34 of IPC as she was produced before him by police and she was identified by woman home guard Gita Baishya. He exhibited the 164 Cr. PC statement of Jyoti Deka @ Putuli Deka as Ext.4 and his signature thereon as Ext.4(3). He further deposed that on 27.03.2014 while he was working as JMFC Hajo, the victim was produced before him for recording her statement under Section 164 Cr. PC in connection with the above referred case and she was identified by home guard Dipali Rabha and he recorded her statement vide Ext.2 and his signature thereon as Ext.2(4) and 2(5). During cross-examination, he stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that at that time, the accused Debajit pulled her by the hand and took her inside that under constructed house and handed her over to the accused Nitul.
He stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that after committing intercourse, there was bleeding from her vagina and then the accused Nitul brought a dirty cloth smeared with Page No.# 19/31 cement and sand and asked her to wipe the bleeding on her genital and since she was having a lot of bleeding, she wiped her bleeding from her genital with that dirty cloth.
He stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that while committing forceful intercourse upon her, the accused Nitul had used a condom.
He stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that in their house, Putuli gave her new underwear, other clothes and one Stay Free to protect her bleeding and she wore that and left her previous clothes there and her blood stained clothes remained in the house of Putuli and then she went to the toilet and removed the Stay Free and used another one due to her bleeding.
He stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that she told Putuli that if she had not accompanied her, the incident would not take place and that she told her that she is also involved.
He stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that Putuli's elder sister Matu slapped her and Matu also snatched the gold chain she was wearing and kept it and she had told Putuli that if she had gone to buy the recharge card, the incident would not have taken, as she had asked her to accompany her to the market only.
Page No.# 20/31 He stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that when she felt that her bleeding had decreased, she told Putuli that they should leave her at home and also give her back her blood stained clothes, but she refused to give back her clothes.
He stated that PW-1 the victim had not stated before him in her statement under Section 164 Cr.PC that Putuli had threatened her not to tell about the incident to anyone or otherwise she will face dire consequences.
15. PW-9/Dr. Sanjalee Haflonbar deposed during her evidence that on 22.03.2014, she was PG on duty at Department of Forensic Medicine GMCH Guwahati and on that day, she examined Miss 'X' D/O Kushal Deka of Shantitul under PS Sualkuchi Dist. Kamrup who was brought to examine in connection with Sualkuchi PS GDE No. 440 and she was accompanied by homeguard Dipali Rabha and she was examined in presence of one female attendant Uttara Das. Case history- according to the victim on 21.03.2014 at around 6.30 pm, she and her female friend Putuli and Putuli's boyfriend named Debajit and a boy named Nipul Sharma went in a car to a place called Bongshar where there was an under constructed building and they went to one of the room of the building where Nitul forced her to have sexual intercourse with him and he put his hand over her mouth to prevent her from shouting and he used condom and put his penis inside her vagina and touched her breasts and when she started to have bleeding from her vagina, the boy i.e. Nipul Sharma drove her back from along with Putuli and Debajit and she went to Putul's place and took bath and changed her clothes. She stated that when Putuli's elder sister named Matu came to know about the incident, she slapped her and beat her with a bamboo Page No.# 21/31 stick and sent her away to her home and when her parents knew about the incident, they registered a case against Putuli, Nitul Sarmah and Debajit Sarmah at Sualkuchi PS at around 11 PM and after which she was brought to medical examination on 22.03.2014 at around 12 noon to forensic medicine department.
The M.O found the following:-
"On genital examination- organs are developed. Vulva labia minora and clitoris are exposed in lithotomy position. On hymen old tear seen at 1 O'Clock, 5 O'Clock, 7 O'Clock and 11 O'Clock position. On vagina redness with blood clots seen around the lateral and posterior vaginal walls. On cervix blood clots seen around the cervical. Uterus are not palpable per abdomen. Evidence of venereal diseases were not detected clinically. Vaginal swabs collected from lateral formix and posterior formix.
Injury on the body- i) contusion, reddish in colour of size 6 cm x 5 cm was present over the left cheek, 4 cm left latual from midline and 3 cm below left supra orbital ridge.
ii) an abrasion, reddish brown in colour of size 2.5 cm x 2 cm is present over the anterior surface of right knee.
iii) contusion, bluish in colour of size 7 cm x 3 cm is present over the anterior aspect Page No.# 22/31 of left thigh, 19 cm above left knee.
iv) abrasion, reddish brown in colour of size 3 cm x 1.5 cm is present over the anterior aspect of left leg 4 cm below left knee."
She deposed that a "gamocha" for detection of spermatozoa and any other stain properly signed and sealed, labelled and packed was handed over to escorting police to be taken to DFS, Kahlilipara. She stated that on the basis of physical examination, radiological and laboratory investigation done on prosecutrix she was of the opinion that her age was above 20 years at that time and there was no evidence of recent sexual intercourse detected on her person. She further deposed that a "gamocha" is sent to DFS Kahlilipara for seminal analysis but no report has been received till the writing of the report. She exhibited Ext.1 as her report and Ext.1(3), 1(4), 1(5),1(6) and 1(7) as her signatures. She deposed that during examination doctor Arpan Majumdar was also present and she exhibited his signature as Ext.1(8) which she knows. She deposed that her medical report was forwarded by Dr. R. Chaliha who was the head of the Dept. of Forensic Medicine, GMCH, Guwahati and exhibited his signature as Ext. 1(9), which she knows. During cross-examination, she stated that she has examined the victim on the next day of the occurrence and old tears means more than 72 hours. She stated that the injuries mentioned in the report may be caused if blunt force is applied. She stated that she has not found signs of recent sexual intercourse upon the victim. She stated that the victim while giving her history had told her that she had willingly gone to the place of Page No.# 23/31 occurrence and to the room with Putuli and the accused persons and she had not stated that she was forcefully taken into the said room while explaining the history to her. She stated that she has not stated to her that the accused Debajit had pressed her mouth.
16. PW-10/Dr. Renu Borah Handique, deposed during her evidence that on 07.04.2014 she was serving as Junior Scientific Officer, Serology Division, Directorate of Forensic Science, Assam, Kahlilipara and on that day she received a parcel from the DSP Kamrup, Amingaon through Director cum Chemical examiner Govt. of Assam in connection with Sualkuchi PS GDE No. 440 dated 22.03.2014 under Sualkuchi PS Case No. 27/14 under Section 365/376/34 IPC.
Description of articles-
Two pieces of multicoloured flowery cloth contains stain of suspected blood & semen marked as "A" which is marked as (1) in her departmental number Sero 3313/14.
Result of examination-
Exhibit. No. Sero 3313/14 gave positive test for semen.
She exhibited her report as Ext.9 and her signature thereon as Ext.9(1). She exhibited the letter through which her report was forwarded as Ext.10 and the signature of Phinendra Narayan Borah, the then Director as Ext. 10(1). During cross-examination, she stated that in the exhibit forwarding letter she had not found any seizure number and she has submitted her report concerning Page No.# 24/31 the two pieces of clothes which was forwarded by Ext.A and she has mentioned the same in the forwarding letter and her report is based on chemical analysis of the exhibits. She stated that the semen which is mentioned in her report is of human semen.
17. Before discussing the evidence on record, note maybe taken of the decision of the Hon'ble Supreme Court in Sadashiv Ramrao Hadbe Vs. State of Maharashtra, reported in (2006) 10 SCC, which was relied on by the defence at the trial, wherein the Hon'ble Supreme Court observed as follows:-
" it is true that in a case of rape the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belle the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. The Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
18. The present appellant alongwith the acquitted accused were charged under Sections 366/34 IPC whereas the present appellant was additionally charged under Section 376 of the IPC as well.
19. The finding of the learned Court below with regard to the charge under Sections 366/34 of the IPC is as follows:-
Page No.# 25/31 "24. While analyzing the above evidence, we have found that the testimony of the prosecutrix( PW1) as to how they arrived at the place of occurrence is not corroborated by PW3 who accompanied her. Moreover, PW1 Prosecutrix during her cross examination for accused Debajit admitted that she accompanied Putuli (PW3) voluntarily to see the under constructed house from outside. Apart from the above, the I/O (PW7) during cross examination confirmed that PW1 prosecutrix in her 161 Cr. PC statement had not stated that Putuli (PW3) came to her home on the day of incident and took her with Putuli (PW3) to see the under constructed house of accused Debajit.
25. Careful analysis of the above evidence reflects that there is no sufficient material to prove that on the day of occurrence the accused persons kidnapped or abducted the prosecutrix to the place of occurrence. Accordingly, the charge under Sections 366/34 IPC fails against both the accused persons, and hence both the accused persons are acquitted from the charge under Sections 366/34 IPC."
20. What is evident from the above is that the learned Trial Court disbelieved the version of the prosecutrix as to the manner in which all of them arrived at the place of occurrence since it was not corroborated by the PW-3, and during the cross-examination of the I.O., the version of the prosecutrix in that respect was also contradicted. Having been found to be not a credible witness in respect of a significant aspect of the prosecution story, the prosecutrix can hardly be Page No.# 26/31 regarded as a sterling witness on the basis of whose sole testimony a conviction can be founded.
21. The learned Trial Court has found corroboration in the medical evidence to the version of the prosecutrix in as much as from the deposition of PW 9/ M.O., certain injuries were found on the person of the prosecutrix which have already been reflected at paragraph 15 herein before. The four numbers of injuries were contusion over the left cheek, an abrasion over the surface of the right knee, contusion over the left thigh and abrasion over the left leg, besides redness in vagina with blood clots, blood clots around cervical.
22. As per the version of the prosecutrix before the M.O., when Putuli's elder sister Matu came to know about the incident, she slapped her and beat her with a bamboo stick and sent her away to her home and therefore, the injuries found upon the prosecutrix as indicated above can be caused by the aforesaid incident at the hands of the sister of Putuli/PW-3, inasmuch as, the M.O had deposed that the said injuries may be caused if blunt force is applied. The injury on the face of the victim is more likely to be caused by a slap, than by a kiss. Further, the M.O had also deposed that she did not find any evidence of any recent sexual intercourse and that she found old tears in the hymen, which meant more than 72 hours prior to intercourse, and she had examined the victim on the next day of the incident. M.O. did not state that the vaginal features found were caused by forceful penetration or that they cannot occur during consensual intercourse. All of these, rather than corroborating the evidence of the prosecutrix actually contradicts the same, in as much as, the intercourse having taken place has been admitted by the appellant and the absence of Page No.# 27/31 evidence of recent sexual intercourse could only mean that the intercourse if had actually taken place was of a consensual nature. More so, it appears from the medical evidence that the prosecutrix had previous exposure to sexual intercourse/penetration. The continuous bleeding as deposed to by the prosecutrix as well as PW-3 can only be attributed to the commencement of menstrual period of the prosecutrix. Further, the prosecutrix would have the Court belief that the appellant had put his hand over her mouth to prevent her from shouting and with the other hand he put on a condom and inserted his penis into her vagina, which appears to be an inherently probable scenario.
23. Moreover, the evidence of the PW-3 who was the only other person present at the P.O house although outside the P.O room, did not support the prosecution case of forcible sexual intercourse. She did not depose to the prosecutrix having made any complaint to her with regard to the same. Rather, she also deposed that the accused/appellant took the prosecutrix as well as PW- 3 in his vehicle and on the way brought medicine to stop the bleeding and then, dropped them near their house. She also deposed that the prosecutrix and the appellant were having a love affair and used to talk on telephone and also exchanged text messages on phone and on the date of the incident, the prosecutrix and the appellant had entered the half constructed house voluntarily. Furthermore, as pointed out by the learned counsel for the appellant, the version of the prosecutrix is riddled by a number of omissions amounting to contradictions, inasmuch as the PW-1 never told the I.O that it was the PW-3 who came to her house and took her to the market and under construction house, nor did she state, either before the I.O. or the Magistrate that the co-accused Debajit pulled her by the hand and handed her to the Page No.# 28/31 appellant.
24. Learned counsel for the petitioner has referred to the decision of the Apex Court in Ganesan Vs. State represented by its Inspector of Police, reported in (2020) 10 SCC 573, wherein it was held that when a conviction is based on the sole testimony of the prosecutrix, her version has to be consistent, free from embellishment, inherently probable and of sterling quality. However, as already observed above, some parts of the version and vital ones at that appear to be inherently improbable as already adverted to above and in view of the fact that the learned Trial Court disbelieved her testimony with regard to the charge under Section 366 IPC/34 IPC as well as the contradictions brought out by the defence during cross examination of the I.O, the victim can hardly be regarded as a being of sterling quality. Further, as discussed above, the medical evidence also does not sufficiently corroborate the version of the prosecutrix.
25. The learned Trial Court has rightly held that the evidence of the forensic expert is of no use to the prosecution, inasmuch as, what the FSL had examined was flowery pieces of cloth whereas, according to the PW-9, what she had sent was a 'gamocha'.
26. The learned Trial Court had held that if the prosecutrix, who is a major had consented to have sexual intercourse with the accused, she would not have suffered the injuries indicated by the M.O, which clearly reflects that the prosecutrix was forced to have sexual intercourse with the accused/appellant although she tried to resist and in this regard has cited the decision of this Court Page No.# 29/31 in Bipul Medhi Vs. State of Assam, reported in 2006 (3) GLT 585, wherein it was held as follows:-
"26. In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear cannot be construed as consented sexual act for the purpose of Section 375 IPC, for, Section 375 IPC require voluntary participation by the vic-tim not only after the exercise of intelligence, based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between resistence and assent. Whether consent existed or not has to be ascertained on the basis of the facts of a given case.
27. However subtle may be, there is, in-deed, a firm and fine distinction between consent and submission. Every consent involves a submission, but every submission is not con-sent and the mere fact that a woman had sub-mitted to the promise of the accused does not necessarily indicate that her consent ex-isted unless the evidence on record establishes that the sexual act, which the prosecutrix had allowed, was accompanied with deliberation after the mind and weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent according to one's will or pleasure."
27. In the aforesaid case, the Court was seized of the question whether consent given in consequence of some fear or misconception could amount to valid consent. However, in the present case, it was nowhere the prosecution case that the victim offered any consent in any form under any fear of injury or under a misconception of fact. Rather, the prosecution case is one of forcible Page No.# 30/31 rape which the victim tried to resist and in the process, injuries were caused to her. Therefore, I do not find any scope for application of the aforesaid decision in Bipul Medhi (Supra) to the facts and circumstances of the present case.
28. Learned Addl. Public Prosecutor, while contending that the prosecution had duly proved this case on the basis of the testimony of the prosecutrix as well as the medical evidence has drawn this Court's attention to Section 114-A of the Indian Evidence Act, 1872, which reads as follows:-
"In a prosecution for rape under clause (a), clause (b), clause (c), clause
(d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent."
29. From a bare reading of the aforesaid provision, it is evident that the same is applicable only to offences under Section 376(2) of the IPC, whereas it is apparent from the facts of the instant case, the allegations herein would be squarely covered by Section 376(1) IPC and therefore, presumption under Section 114-A of the Indian Evidence Act, does not get attracted.
30. From the above, there appears to be force in the submission of the learned counsel that the victim after the incident having gone to the house of Page No.# 31/31 the friend, i.e., PW-3, and having been slapped by the sister of PW-3 and chased out of the house would only indicate that the act of sexual intercourse involving the prosecutrix had been discovered and upon being reported to her parents, in order to save face, the present FIR has been lodged.
31. For the aforesaid reasons, the impugned Judgment and Sentence cannot be sustained and is accordingly set aside. The appeal stands allowed.
32. The petitioner be set at liberty forthwith.
JUDGE Comparing Assistant