Page No.# 1/10 GAHC010010502013 2025:GAU-AS:14490 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./264/2013 KAILASH DAS S/O LT. BALDEV DAS, R/O UDHAY NAGAR, KHANAPRA, P.S. BASISTHA, DIST. KAMRUP, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY PP, ASSAM. 2:AJIT DEKA S/O LATE HARICHARAN DEKA UDAY NAGAR KHANAPARA. PRESENTLY RESIDENT OF VILLAGE- VEKATTARI P.S.- MUKALMUA DISTRICT- NALBARI ASSAM. PIN- 781126 Advocate for the Petitioner : MR.A K TALUKDAR, Advocate for the Respondent : PP, ASSAM, MS. S R SAIKIA,MR. S M RAHMAN,MR. M I HUSSAIN Page No.# 2/10 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 29.10.2025 Heard Mr. A. K. Talukdar, learned counsel for the appellant. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor appearing for the State. 2. The present appeal has been instituted assailing the Judgment dated 03.08.2013, passed by the learned Additional Sessions Judge No.4, (FTC), Kamrup (M), in Sessions Case No.255(K)/2010, convicting the appellant, herein, under Section 354 IPC, sentencing him to undergo Rigorous Imprisonment for 2(two) years along with payment of fine of Rs.10,000/-(Rupees Ten Thousand), in default to undergo further Rigorous Imprisonment for a period of 4(four) months. 3. The prosecution case in brief is that, one Ajit Deka, lodged an FIR on 09.11.2008, before the Officer-in-Charge of Basistha Police Station, inter alia, alleging, therein, that, on 09.11.2008 at around 4.00 p.m, the appellant, herein, who was a resident of the same campus had taken his minor daughter to his rented house and had committed rape upon her. It was further stated that the neighbours on coming to know about the said incident had taken the appellant to the road and assaulted him, therein. The police on receipt of the said FIR, registered the same as Basistha P. S. Case No.564/2008 under Section 376(f) IPC. The police on completion of investigation, laid a charge- sheet against the appellant, herein, under Section 376(f) IPC. Page No.# 3/10 The learned Trial Court, on the matter being committed to it, framed a charge against the appellant, herein, under Section 376(f) IPC. The charge being read over and explained to the appellant, herein, he having pleaded not guilty and claimed to be tried, a Trial ensued. During the Trial, the prosecution examined 7(seven) witnesses. Thereafter the appellant, herein, was examined under Section 313 CrPC. On conclusion of the Trial, the learned Trial Court on appreciating the evidences coming on record proceeded vide Judgment dated 03.08.2013, to convict the appellant, herein, under Section 354 IPC and sentenced him to undergo Rigorous Imprisonment for 2(two) years along with payment of fine of Rs.10,000/(Rupees Ten Thousand), and in default to undergo Rigorous Imprisonment for a period of 4(four) months. Being aggrieved the appellant, has instituted the present proceedings. 4. Mr. A. K. Talukdar, learned counsel for the appellant, by referring to the cross-examination of the PW-1(victim) has submitted that the deposition she had made was taught to her by her mother and had deposed that she had seen the appellant, herein, being assaulted but she did not know who had assaulted him. Thereafter, by referring to the deposition of PW-2 i.e. the mother of the victim girl, the learned counsel for the appellant has submitted that a suggestion was put to her by the appellant, herein, during her cross-examination that she borrowed an amount of Rs.5000/-(Rupees Five Thousand) from the appellant by mortgaging a pair of earrings and on the date of the occurrence she had paid him Rs.2000/-(Rupees Two Thousand) but the appellant had not Page No.# 4/10 returned her earrings, a quarrel ensued and the appellant was beaten by a slipper. He further submits that the evidence of the PW-2 had brought on record that the landlord had evicted them while the appellant was permitted to stay in the rented premises. The said suggestion was also submitted to have been put to the PW-4, the father of the victim girl. He has then referred to the statements made by the appellant during his examination under Section 313 CrPC, wherein, the appellant had deposed that the mother of the victim had asked him to give her back the gold earrings, given on mortgage to the appellant by paying Rs.2000/-(Rupees Two Thousand) in place of Rs.5000/- (Rupees Five Thousand) and on refusal she assaulted the appellant with her ‘chappal’ and also told him that she would teach him a lesson. 5. Basing on the said evidences the learned counsel for the appellant has submitted that the case was lodged against him by the informant only to take revenge and there was no truth behind the allegation so levelled. He further submitted that it was the appellant who was assaulted by the father of the victim girl and his companions for which he was required to remain in hospital. He submitted that although the appellant wanted to file a case in the matter, the case was not registered by the police. Mr. Talukdar, has submitted that in view of the doubt arising in the matter, the benefit thereof must be extended to the appellant, herein, and he is required to be acquitted from the charge under Section 354 IPC. 6. Per contra Mr. M. P. Goswami, learned Additional Public Prosecutor, appearing for the State, has submitted that the evidence adduced by the victim girl reveals that she was subjected to sexual assault by the appellant, herein, and that the appellant had inserted his finger into her Page No.# 5/10 vagina on the promise that he would give her dress and lipstick. He further submits that the victim girl had deposed about bleeding from her vagina. He submits that the deposition of the victim girl as PW-1, was corroborated by the deposition of PW-2(mother), who had deposed that she was informed by her daughter that the appellant, herein, had inserted his finger into her vagina, which has caused bleeding and she had seen blood in her vagina and in her panty and that the victim girl could not pass urine due to burning sensation. He submits that the deposition of PW-1 and PW-2 finds corroboration from the evidence adduced by the Doctor examining the victim girl, who had deposed as PW-7 during the Trial. He submits that although the Doctor had opined that there was no evidence of recent sexual intercourse, however genital findings were found to suggest forceful penetration. He submits that in view of the above evidence coming on record, the conclusions drawn by the learned Trial Court that the appellant, herein, was guilty of the offence under Section 354 IPC would not mandate any interference and accordingly, the appeal would be called to be dismissed. 7. I have heard the learned counsel for the parties and also perused the materials available on record. 8. The learned Trial Court upon appreciating the evidences coming on record had drawn the following conclusions ; “18. Now let us see what the prosecutrix stated in her deposition before the Court. She clearly and firmly stated that on the day of incident while her mother left her at the house of the accused, the accused alluring her to give frock and lipstick, inserted his finger into her vagina, which caused bleeding from the vagina. From the medical evidence it is revealed that an abrasion red in colour. swollen and tender to touch was present in the inner surface of labia minora. The doctor also opined that there was forceful Page No.# 6/10 penetration. 19. Now, the question is whether the accused has caused the injury. 20. The P.W.1 the victim is a child of 5/6 years who very categorically stated that the accused alluring to give her frock and lipstick, inserted his finger into her vagina. Due to very tender age she does not have any sense of feeling of sexual intercourse. It she had any such sense then her statement would not have been so simple towards directly insertion of finger without any embellishment or improvement. The other P.Ws also corroborated the same that the victim told in the same way to all the witnesses that the accused alluring her to give frock, chocolate, lipstick etc. inserted his finger into her vagina. All the witnesses have witnessed there was bleeding from the vagina of the victim. The panty which she was wearing at that time was also stained with blood. The victim also very categorically stated in her evidence that while the accused inserted his finger into her vagina, except a gamocha, no any cloth was in his body. 21. Therefore the evidence which the prosecution side has led is sufficient to held that the injury to the vagina of the victim is caused by the accused by inserting his finger into the vagina which caused her bleeding and suffering pain. Moreover the blood stained panty was also seized by the police in presence of the witness. 22. The defence side raised the plea that in the instant case child is the only witness and child witness should be accepted by the court with due care and caution and if it is found that the child witness is tutored, her evidence cannot be trusted upon and relied. They submitted that in the instant case in hand the child witness who is the victim has admitted that her mother has tutored her to dispose in a given manner and as such her evidence is not acceptable. 23. But in this case, in statement U/S 164 Cr.P.C. recorded on 12.11.08 i.e. after three days of the occurrence and before the medical officer, on next day of the occurrence i.e. on 10.11.08, the victim narrated the same version what she deposed before the Court. From the evidence of I.0. P.W.6 it is found that he did not record the statement of the victim U/S 161 Cr.P.C. as she got Page No.# 7/10 frightened.” 9. With regard to the deposition made by the victim girl during her cross-examination that she had deposed as was taught to her by her mother, the learned Trial Court had drawn the following conclusions; “24. If it is taken that before coming to the court to give evidence her mother tutored her about what to depose in the court, then the question arises whether the statement which she made soon after the incident before the Magistrate was also tutored or not. Definitely not, because she did not state before the Magistrate that she was tutored by any one. Hence her evidence could not be shaken in as much as nothing specific could be pointed out to show as to why the Pws more particularly PW1 would not be believed. Being a minor, before coming to the Court to give evidence, her mother might told her to say exactly what happened. It also appears that before recording the evidence of the minor victim, she was testified by putting certain questions to which she had given rational answer and hence found her competent to give deposition. Defence also failed to shaken her deposition in any manner. Hence the evidence of the minor victim cannot be discarded. I find nothing which leads the victim to be tutored to embellishment the version and as such it cannot be said that she is tutored. The testimony of the victim appear to be quite believable. She appears to be a witness of truth and not a witness of imagination who had the capacity to narrate the things clearly.” 10. With regard to the contention of the appellant, herein, that the mother of the victim girl had made false allegation against him, on he not returning the earrings kept with him on mortgage , the learned Trial Court had drawn the following conclusion; “26. Though in statement U/S 313 Cr.P.C. and in evidence, the accused took the plea that the mother of the victim took Rs. 5,000/-from him by keeping a ear ring and promising to return the money within 1 ½ /2 months and thereafter returning only Page No.# 8/10 Rs. 2,000/- she asked him to return the ear ring and on refusing she had assaulted him with another and filed the false case but according to me the plea of the defence cannot be relied upon because in natural instinct it is improbable that only for Rs. 3000/- or Rs. 5000/- a mother who has given birth to a child will cause injury into the private part of the child and will go to the police station without fearing the publicity and without considering the future reputation of her own female child. It is unbelievable that only for Rs. 3,000/-, a mother would set her minor daughter with a false allegation in respect of modesty against an innocent she was subjected to such sexual assault. Further, F.I.R. was lodged on the same day of occurrence and admittedly the accused was assaulted by public. For the offence committed by the accused he might be assaulted by the public.” 11. Thereafter, the learned Trial Court on considering the evidences coming on record had found that the charge under Section 376 IPC, was not established beyond reasonable doubt and it being established from the evidence coming on record that the appellant, herein, had inserted his finger into the private part of the victim girl, the offence under Section 354 IPC was established beyond reasonable doubt. Accordingly, the appellant, herein, was convicted under Section 354 IPC and sentenced as noticed hereinabove. 12. I have examined the conclusions drawn by the learned Trial Court in the matter in the light of the evidences coming on record. On a close perusal of the conclusions drawn, this Court is of the considered view that the same has been drawn basing on a due and proper examination of the evidences coming on record and no infirmity is found therein. The victim girl is found consistent in her stand both while recording her statement under Section 164 CrPc as well as while deposing during the Trial as PW-1. The evidence of PW-1 brings to the forefront that the appellant, herein, had inserted a finger into her vagina for which she had bleeding. The said deposition is also corroborated by the deposition of her mother as PW-2. Page No.# 9/10 This Court also finds that the Investigating Officer who had deposed as PW-6 had stated that he had seized the undergarment of the victim girl and there was blood stain found, therein. The evidence of PW-1 and PW-2 was corroborated by the evidence adduced by PW-7 i.e the Medical Officer examining the victim girl, who had opined that although there was no evidence of recent sexual intercourse, however, on genital of the victim girl sign of forceful penetration was seen. The deposition of PW-7 also reveals that on genital examination of the victim girl, her Vulva Posterior fourchette was found to be hyperaemic and swelling and an abrasion of size 0.5 mm x 0.3 mm, red in colour, swollen and tender to touch present in the inner surface of labia minora just to the right of hymenal orifice was found. The said evidences coming on record clearly established the offence under Section 354 IPC against the petitioner, herein. With regard to the plea taken by the appellant that it was he who was assaulted and for the injuries suffered he had to undergo long period of treatment, this Court finds that the same would not mandate a consideration, inasmuch as, the appellant, herein, had not instituted proceedings with regard to the assault purportedly committed upon him in the matter. 13. In view of the above discussion, this Court is of the considered view that the conviction of the appellant, herein, under Section 354 IPC would not mandate any interference. Having drawn the above conclusions, this Court finds that the offence involved in the matter was committed by the appellant on 09.11.2008. It is also brought on record that the appellant, herein, was arrested on 09.11.2008 and remained in custody till 09.01.2009, when he was enlarged on bail. The provisions of Section 354 IPC as it stood on the date of commission of the offence by the appellant, herein, mandated a punishment of imprisonment of either description for a term which may extend to 2(two) years or with fine or Page No.# 10/10 with both. The petitioner having been undergone a period of detention, this Court, is of the considered view that, considering the long lapse of time occasioned from the date of commission of the offence by the appellant, herein, his sentencing would call for a modification. Accordingly, the sentencing of imprisonment imposed by the learned Trial Court vide the Judgment dated 03.08.2013, is modified and the period of imprisonment is limited to the period of imprisonment already undergone by the appellant, herein. However, the punishment of payment of fine as imposed by the learned Trial Court is not interfered with. 14. In view of the above, the appellant, herein, shall now appear before the learned Trial Court within a period of 3(months) months from today and deposit the fine amount. In default of payment of fine, the appellant, herein, shall undergo Rigorous Imprisonment for a period of 4(four) months for the offence punishable under Section 354 IPC. 15. With the above observations and directions the present Criminal Appeal stands disposed of. 16. Registry to send down the records of the case to the Trial Court along with a copy of this order for information and necessary action. JUDGE Comparing Assistant