Page No.# 1/10 GAHC010004592014 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./16/2014 BHUPEN BANIA S/O LT. KALIRAM BANIA, R/O VILL. HALOGAON, PO. SUALKUCHI, DIST. KAMRUP, ASSAM. VERSUS STATE OF ASSAM Advocate for the Petitioner : MR.S RANA, MR. M KHAN, AMICUS CURIAE,MR.S MUNIR Advocate for the Respondent : , PP, ASSAM BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 15-10-2025 Heard Mr. M. Khan, learned amicus curiae appearing for the appellant. Also heard Mr. M.P. Goswami, learned Addl. P.P. Assam appearing for the State. 2. The present appeal is instituted assailing the judgment and order dated 09-12- 2013, passed by the learned Addl. Sessions Judge No. IV, FTC, Kamrup at Guwahati, in Page No.# 2/10 Sessions Case No. 354(K)/2007 convicting the appellant, herein, under Section 376(2)(f)/ 511 IPC and sentencing him to undergo rigorous imprisonment for 05 (five) years and also to pay fine of Rs. 10,000/- (Rupees Ten Thousand), in default to undergo further rigorous imprisonment for 03 (three) months. 3. The prosecution case, in brief, is that on 08-11-2003 one Nirmala Kalita lodged an FIR in the form of an complaint before the Judicial Magistrate First Class, Hajo alleging, inter-alia, that on 03-11-2003 at about 06:00 p.m. the appellant, herein, had taken her minor daughter (aged about 08 years) to Bamundi Chowk on the pretext of taking her to a shop. It was further stated in the FIR that on the way the victim girl had met her aunt, namely, Pranita Kalita and had caught her aunt’s hand but the appellant, herein, pulled the victim girl from her aunt’s hand and had taken her to the Bamundi Girls High School and thereafter, had committed rape on her on the school veranda. It was further alleged that the accused had thereafter taken the girl to the house of one Bhupen Kalita a relative of the informant. On receipt of the said complaint, the learned Judicial Magistrate First Class, Hajo forwarded the same to the Sualkuchi Police Station to register a case. Accordingly, Sualkuchi P.S. Case No. 65/2003 under Section 376 was registered. On completion of the investigation, in the matter the police laid charge-sheet being Charge- Sheet No. 17 dated 31-03-2005, against the appellant, under Section 376 IPC. The case being triable by the learned Sessions Judge, the Judicial Magistrate First Class, Hajo vide order dated 24-10-2007 committed the case to the court of the learned Sessions Judge, Kamrup for trial. The learned Sessions Judge framed charge against the appellant, herein, under Section 376 IPC. Later on, on the basis of medico legal report showing the girl Page No.# 3/10 above 09 (nine) years and below 10 (ten) years of age, the Addl. Sessions Judge, Kamrup at Guwahati (to whom the case was transferred for disposal) altered the charge to that under Section 376(2)(f) IPC. The charge being read over and explained to the appellant, he having pleaded not guilty and claimed to be tried, a trial ensued in the matter. During the trial, prosecution examined 07 (seven) witnesses, including the Investigating Officer (I/O). The accused was thereafter examined under Section 313 Cr.P.C. On completion of the trial, the learned Trial Court vide judgment and order dated 09-12-2013 proceeded to convict the appellant, herein, under Section 376(2)(f)/ 511 IPC and on such conviction, the appellant was sentenced to undergo rigorous imprisonment for 05 (five) years along with fine of Rs. 10,000/- (Rupees Ten Thousand) in default to undergo further rigorous imprisonment for another 03 (three) months for the offence punishable under Section 376(2)(f)/ 511 IPC. The amount of fine, on realization is directed to be paid to the victim girl. Being aggrieved, the appellant has instituted the present proceeding. 4. I have heard the learned counsel for the parties and also perused the materials available on record. For the purpose of appreciating the submissions made by the learned counsel for the parties as well as for appreciating the conclusions reached by the learned Trial Court, this Court is required to notice the evidences adduced by the witnesses during the trial. 5. PW-1 Dr. Amar Jyoti Patowary deposed that on 11-11-2003 at 11:45 a.m. he had Page No.# 4/10 examined the victim girl and on genital examination had not found any injuries on her private parts. It was further opined that the vulva was slightly separated posteriorsly in lithotomy position and her hymen was intact admitting tip of little finger. PW-1 further opined that physical examination, radiological and laboratory investigation, no evidence of sexual intercourse nor any sign of injury on the body of the victim girl was found. It was further opined that the victim girl was about 09 (nine) years and below 10 (ten) years of age. 6. PW-2, the victim girl deposed that on the date of the occurrence at 06:00 p.m. while she was studying in her house, the appellant, whom she called ‘Bordeuta’ came and on the pretext of going to his friend’s house had taken her along. She deposed that as the accused was known to her, she had gone along with him but seeing persons at the chowk, the accused had taken her to the Bamundi Girls High School. On reaching the front of the school gate, the accused asked the victim girl to take off her pant. She further deposed that on removing her pant the accused put his penis on her vagina. The PW-2 further deposed that on raising alarm the accused had gagged her mouth with his hand and after sometime released her. She deposed further that she returned home and informed her mother about the incident. She further deposed that her mother had lodged a complaint before the “MahilaSamity” and thereafter before the Police Station. During her cross-examination, PW-2 deposed that prior to the alleged incident the accused had neither visited her house nor misbehaved with her. 7. PW-3 Nirmala Kalita, the informant, who is the mother of the victim girl, deposed that on the day of occurrence of the incident during the evening time her daughter was Page No.# 5/10 studying and she was working in the kitchen. After sometime she noticed the fact that the victim girl was missing and on asking her younger daughter and son about her whereabouts, she learnt that she was taken away by the appellant, herein. She further deposed that after sometime the victim girl had returned home crying, saying that the accused had done bad act with her in the school veranda. She also deposed that on learning about the incident, she raised hue and cry which lead to people assembling there and on being informed the police came and arrested the accused and took him to the thana. She further deposed that on examining her daughter’s private part she found it to be dirty and reddish. She also deposed that she had first filed a complaint before the Mahila Samity which was sent to the police. She also deposed that as the police did not investigate the matter, she filed a complaint before the Court. During her cross-examination, she stated that the victim girl was brought to the Sualkuchi PHC on the next date, i.e. on 04-11-2003, the Doctor had not examined her. She also deposed that the appellant, herein, had not misbehaved with them earlier. 8. PW-4 Pranita Kalita, the aunt of the victim, deposed that on the date of the alleged occurrence at about 05:00 p.m., while she was returning from her parental house to her matrimonial house, she met the victim on the road, who called her by holding her hand, but then the appellant, herein, pulled the victim and had taken her away. She deposed that in the evening the victim’s mother told her that the accused had done bad act with her daughter. During the cross-examination, she stated that she saw that victim being pulled away by the accused but she asserted that she recognized the accused. She further stated that Page No.# 6/10 the victim had not reported to her personally about the alleged incident. 9. PW-5, Chandi Singh deposed that he was serving as Assistant Sub-Inspector in the Sualkuchi Police Station and at about 07:40 p.m., received a phone call from the VDP Secretary Lalit Kalita, who informed that the appellant, herein, was caught by public in the house of one Bhupen Kalita. PW-5 deposed that he made a GD entry about the same and proceeded to the place of occurrence. He further deposed that on enquiry he came to know that the appellant, herein, had committed rape upon the victim girl. He further deposed that he brought the victim and the accused to the police station and on 04-11- 2003 at around 06:00 a.m.as per the Officer-in-Charge’s order he had sent the victim girl for medical examination to Sualkuchi PHC and had collected the medical report. He deposed that in the evening after discussing the matter with the Addl. Superintendent of Police and the Officer-in-Charge, he released the accused and also sent the victim back to her residence. 10. PW-6, Nabin Haloi, the Investigating Officer deposed that he had collected the medical report and submitted the charge-sheet against the appellant, herein, under Section 376 IPC. 11. PW-7, Makib Ali who is also the Investigating Officer deposed that on 08-11-2003 while he was the Officer-in-Charge of the Sualkuchi Police Station, on receiving FIR from the informant through the learned Judicial Magistrate First Class, Hajo registered a case, visited the place of occurrence, prepared sketch map, recorded statement of the witnesses and arrested the accused. He also deposed that he had sent the victim girl to the GMCH for medical examination and had also recorded statement under Section 164 Page No.# 7/10 Cr.P.C. He further deposed that on being transferred, the case diary was entrusted to his successor. During his cross-examination, PW-7 deposed that at the time of the occurrence the ASI, Chandi Singh was the In-Charge of the Sualkuchi Police Station who after collecting the medical report on 04-11-2003 had released both the accused and the victim, on not finding any evidence of sexual intercourse. A perusal of the evidence would bring to the forefront that the victim girl at the time of the incident was a minor and the age of the victim girl as projected was not disputed by the appellant, herein. The evidence of PW-2 the victim girl is direct and she had deposed about commission of the offence upon her by the appellant, herein. It is also brought to the forefront that the appellant was known to her and she used to address the appellant as “Bordeuta” (uncle). Her deposition also brings to the forefront that the appellant, herein, upon taking her to the Girls High School had removed her pant. The said evidence of the victim girl was not dislodged by the appellant even after detailed cross-examination. The fact that the appellant had taken away the girl away is also apparent from the evidence of the PW-3 who is the aunt of the victim girl, who had met the victim girl while she was being taken away during the date of occurrence of the incident by the appellant, herein. The medical evidence also highlights that the vulva of the victim girl was slightly separated posteriorsly in lithotomy position. Accordingly, the fact of the victim girl being taken away by the accused on the date of occurrence of the incident is established beyond reasonable doubt. Further the evidence of the victim girl brings to the forefront that she was subjected to sexual assault by the appellant, herein. 12. Having drawn the above conclusion, this Court would examine the statement made Page No.# 8/10 by the accused during his examination under Section 313 Cr.P.C. The appellant during his such examination had stated that when he had gone to the house of the informant and asked for the money payable to him against purchase of a gold ring, from the appellant, the informant had raised hulla and alleged that he had committed rape on her minor daughter. The said statement as made by the appellant during his deposition, is not found to have been put to the informant during her cross-examination by him in the trial. The learned Trial Court had appreciated the said statement made by the appellant in the following manner:- “So far as the plea taken by the accused in statement u/s 313 Crpc is concerned, it is highly improbable as the defence has not even once raised the matter or indicated the same nowhere during the cross examination phase. Also, no traditional mother in her right senses would endanger her minor daughter's chastity and future, sacrificing it at the altar of such a trivial matter as evading payment of money. The testimony of the victim girl has been found to be consistent and reliable. Further, it is needless to mention here that the accused is only a mere example of the decadent times we are living in and that he has clearly violated and taken advantage of the innocence of a minor girl along with the trust reposed in him. So in my view the defence plea does not inspire any confidence. I find nothing which leads the victim to be tutored to embellish the version.” This Court on consideration of the conclusions drawn by the learned Trial Court in this matter finds the same to be probable and based on the evidences coming on record. 13. The above position would require this Court to examine as to whether the victim girl was in fact subjected to a sexual intercourse or there was an attempt to commit the said offence. The statement of the victim girl reveals that she was subjected to sexual assault by the appellant, herein, however, the medico legal report having not demonstrated that the appellant had inserted his penis into the private part of the victim Page No.# 9/10 girl, this Court is of the considered view that the ingredients requisite for establishing a charge under Section 376(2)(f)/ 511 IPC has not been established beyond reasonable doubt. Having drawn the above conclusions it is also to be noticed that from the evidence of PW-2, it is clear that appellant, herein, had taken the victim girl from her house and removed her pant and tried to insert his penis into the private part of the victim girl. The said evidence clearly establishes the commission of the offence under Section 354 IPC by the appellant upon the victim girl. 14. In view of the above the conviction of the appellant under Section 376(2)(f)/ 511 IPC is set aside. However, the evidences coming on record having established the offence of outraging the modesty of the victim girl by the appellant, herein, the appellant stands convicted under Section 354 IPC. In view of the above position, the sentencing of the appellant under Section 376(2)(f)/ 511 IPC also stands set aside. 15. The ingredients of commission of offence under Section 354 IPC having been established in the matter, the appellant, herein, is convicted under the provision of Section 354 IPC. The appellant now having been convicted under Section 354 IPC, he is sentenced to undergo rigorous imprisonment for 02 (two) years along with payment of fine of Rs. 25,000/-, (Rupees Twenty Five Thousand) in default of payment of fine, the appellant, herein, is directed to undergo further rigorous imprisonment for another 03 (three) months for the offence punishable under Section 354 IPC. The fine amount on realization be paid to the victim girl. The period of detention already undergone by the accused shall be set off against the terms of imprisonment as per provisions of Section 428 Cr.P.C. The bail bond of the appellant stands cancelled and the surety stands Page No.# 10/10 discharged. 16. The appellant is directed to surrender before the Court of learned Sessions Judge, Kamrup at Guwahati within a period of 02 (two) months from today. 17. Registry to send back the TCR along with a copy of this order for information and necessary action. JUDGE Comparing Assistant