Page No.# 1/6 GAHC010195812022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./240/2022 MD. RANA ALI @ RANA AHMED @ KHOLILUDDIN AHMED RESIDENT OF SAMUGURI TINIALI (BAZAR) PS AMGURI, DIST SIVASAGAR, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY PP ASSAM 2:MS. LUCKY DAS D/O LATE ANANTA DAS RESIDENT OF NA PAM SAMUGURI PS AMGURI DIST SIVASAGAR ASSAM 78568 Advocate for the Petitioner : MR R DAS, Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, AMICUS CURIAE FOR R-2 :: PRESENT :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA For the Appellant : Mr. R. Das, Advocate. For the Respondent No.1 : Ms. A. Begum, Addl. P.P., Assam. For the Respondent No.2 : Ms. M.K. Brown, Amicus Curiae. Date of Hearing : 08.04.2025. Date of Judgment : 15.07.2025. Page No.# 2/6 JUDGMENT AND ORDER (CAV) Heard Mr. R. Das, learned counsel appearing for the appellant. Also heard Ms. A. Begum, the learned Addl. Public Prosecutor, Assam as well as Ms. M.K. Brown, learned counsel appearing for the Respondent No.2. 2. This is an appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 30.08.2022 passed by the learned Special Judge (POCSO), Sivasagar in Special (POCSO) Case No.07/2019. 3. On 05.10.2018, the informant had lodged an FIR before police stating that she was working in the fields of the present appellant for the last three years. About six months ago, while the girl was still working in the fields, she was summoned to the house of the appellant for drinking cold drink. When she went into his house, the appellant committed penetrative sexual intercourse with her. After that incident, on several occasions the appellant had penetrative sexual intercourse with her and before all those acts, she was threatened of dire consequences. Ultimately the girl became pregnant. She informed the appellant. But he threatened her of dire consequences. 4. During the trial, the prosecution side examined 11 witnesses. The appellant did not examine any defence witness. On the basis of the evidence on record, the trial court convicted the appellant under Section 6 of the POCSO Act. 5. I have carefully gone through the prosecution evidence. 6. The victim girl was the first prosecution witness to be examined by the prosecution. She has stated in her evidence that on the first occasion after consuming the cold drink, she became senseless. When she regained consciousness, she found her on the bed of the appellant. In the meantime, the wife of the appellant had come home and after having food, the girl left the house of the appellant. 7. After the aforesaid incident, the girl continued to work for the appellant. After a couple of days, the appellant again had sexual intercourse with her by threatening of Page No.# 3/6 dire consequences. 8. The girl had lost interest in her work and wanted to leave her job. But the wife of the appellant put pressure upon her to continue in her job. Accordingly, she continued in her job. 9. When she became pregnant, the girl informed the appellant. On hearing that, the appellant became violent and threatened her of dire consequences. 10. The cross-examination portion of the evidence of the victim girl contained some suggestions only. 11. The second prosecution witness is Bharati Das, an office bearer of Local Mohila Samity. On 04.10.2018, she was called to the house of the victim girl by her elder sister. On that day, the victim girl had attempted to commit suicide by jumping before a running train. In her evidence the witness Bharati Das has reiterated whatever the victim girl had deposed in her evidence. That day, Bharati Das had informed the matter to the Local Mohila Samity and on the next day, the victim girl had lodged the FIR before police. Bharati Das had heard that the victim girl had given birth to a dead child. 12. Her cross-examination has nothing to discuss about. 13. The third prosecution witness is the step mother of the victim girl. She spoke about whatever she had heard from the victim girl. 14. There is nothing in her cross-examination. 15. The fourth prosecution witness is Purnananda Das. He lives in the same village as the victim girl. His evidence is also whatever he had heard from others including the victim girl. 16. There is nothing in his-cross examination for a discussion. 17. The fifth and the sixth prosecution witnesses are Smt. Adimani Das and Anjana Das. Their evidences are based on whatever they had heard. Page No.# 4/6 18. There is nothing in their cross-examination for a discussion. 19. The seventh and eighth prosecution witnesses, namely, Munin Gogoi and Sofia Bora also deposed whatever they had heard about the incident. 20. The ninth prosecution witness is the doctor who stated that the victim girl was above 18 years old. 21. The tenth prosecution witness is the Magistrate who had recorded the statement of the victim girl under Section 164 of the Code of Criminal Procedure. 22. The eleventh prosecution witness is the Police Investigating Officer. 23. After going through the evidence, I find that there are no contradictions and inconsistencies in the evidence of the victim girl. The learned trial court ignored the evidence of the doctor who reported that the victim girl was above 18 years of age. There is no finding on this point in the impugned judgment. 24. The settled position of law is that ordinarily the evidence of a victim of sexual attack deserves to be considered sacrosanct. Once the statement of the prosecutrix inspires confidence and is allowed by the Court as such, conviction can be based only on solitary evidence of the prosecutrix and corroboration could be required unless there are appropriate reasons which necessitate the Court to seek corroboration and the statement of the victim lady, her testimony has to be proved on the principle of probability just as the testimony of any other witness. 25. While considering the trial of rape cases, the Supreme Court in State of A.P. v. Gangula Satya Murthy (AIR 1997 SC 1588) held that the Courts are expected to show great responsibility. It was held thus: "27. Before parting with the case we would like to point out that the Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. Page No.# 5/6 This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation.” 26. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, the Hon’ble Supreme Court, while dealing with the issue, has held: “The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed.” 27. In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858, the Hon’ble Supreme Court has held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed: “It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. There is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 28. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Hon’ble Supreme Court held has under: “It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” 29. In Narender Kumar Versus State (NCT of Delhi), (2012) 7 SCC 171, the Hon,ble Supreme Court, has observed as under - Page No.# 6/6 “In a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused.” 30. Reverting to the case in hand, the evidence of the doctor is the only evidence available in the record regarding the age of the victim girl. Therefore, it has to be accepted. So, if the victim girl was above 18 years of age on the day of occurrence, the POCSO Act would not be applicable. 31. The victim girl had a family consisting of her elder sister. The appellant had, on multiple occasions, physical relationship with the girl. But she never disclosed before anyone. When she became pregnant, then she asked the appellant to do the needful. When there were bodily changes in her body, then only her elder sister became suspicious and she has confronted the victim girl and then she came to know that her younger sister was made pregnant by the appellant. 32. Under the given circumstances, this Court is of the opinion that a dark cloud of doubt hovers over the authenticity of the allegation brought against the present appellant that he had forcible sexual intercourse with the victim girl on multiple occasions. In a criminal case, an offence has to be proved beyond all reasonable doubt. In such a case, if a substantial doubt hovers over the prosecution story, the benefit of doubt must be given to the appellant. 33. For the aforesaid reason, the appeal is allowed. The impugned judgment and order dated 30.08.2022 passed by the learned Special Judge (POCSO), Sivasagar in Special (POCSO) Case No.07/2019 is set aside. The appellant is acquitted from this case on benefit of doubt. Send back the LCR. JUDGE Comparing Assistant