Page No.# 1/15 GAHC010004962014 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./26/2014 MD. SAYEDUR RAHMAN S/O LT. ABDUL HANIF, VILL. NAGAJAN, P.O. and P.S. KHARUPETIA, DIST. DARRANG, ASSAM. VERSUS THE STATE OF ASSAM, Advocate for the Petitioner : MD.M H CHOUDHURY, MR. S N AHMED,R. BARUAH,TANZIM L. CHOUDHURY,MR MONZUR K CHOUDHURY,MS.M DEORI,MR.A HOQUE,MS.L N CHOUDHURY,MS.M DUWARAH Advocate for the Respondent : , ,PP, ASSAM,, Page No.# 2/15 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 13.10.2025 Heard Mr. M. K. Choudhury, 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 under Section 374(2) of the Code of Criminal Procedure, 1973, assailing the Judgment and Order dated 04/01/2014, passed by the learned Assistant Session Judge, Nalbari, in Sessions Case No.42/2012, convicting the appellant, herein, under Section 376(2)(a)(i) IPC, sentencing him to undergo Rigorous Imprisonment for 10(ten) years along with payment of fine of Rs.10,000/- (Rupees ten thousand) only, in default to undergo Simple Imprisonment for 6(six) months. 3. The prosecution case in brief is that one Malati Kalandi lodged an FIR on 29.07.2007, before the Officer-in-Charge Tamulpur Police Station, inter alia, alleging therein, that the appellant, herein, had called her to have meal with him and accordingly she had gone to his quarter and taken chapatti and thereafter it was alleged that she was raped by the appellant on the preceding day. The police on receipt of the said FIR registered the same as Tamulpur P.S. Case No.109/2010 under Section 376(2)(a) IPC. On conclusion of the investigation in the matter, the police laid a charge-sheet against the appellant, herein, under Section 376(2)(a)(ii) IPC. Thereafter the matter on being committed to the Court of learned Sessions Judge, Nalbari, the same was transferred to the Court of learned Assistant Sessions Judge, Nalbari, for Trial. The Trial Court framed a charge against the appellant, herein, under Section 376(2)(a)(i) IPC and the Page No.# 3/15 same on being read over and explained to the appellant, he having pleaded not guilty, and claimed to be tried. Accordingly, a Trial ensued. The learned Trial Court on conclusion of the Trial, upon appreciating the evidences coming on record was pleased vide Judgment dated 04/01/2014, to convict the appellant under Section 376(2)(a)(i) IPC and sentenced him to undergo Rigorous Imprisonment of 10(ten) years, along with payment of fine of Rs.10,000/-(Rupees ten thousand) only, in default to undergo Simple Imprisonment for 6(six) months. Being aggrieved the appellant has instituted the present proceedings. 4. Mr. M. P. Choudhury, learned counsel for the appellant by referring to the depositions of the witnesses during the Trial as well as the FIR lodged by the victim has at the outset submitted that the very factum of commission of the offence upon the victim by the appellant, herein, is doubtful. He has submitted that there was no eye witness to the offence committed by the appellant, herein, and it was only basing on the evidence of the prosecutrix which was purportedly held to have been corroborated by the other witnesses, the appellant came to be convicted by the learned Trial Court in the matter. The learned counsel for the appellant submits that the sexual intercourse alleged to have been committed by the appellant, herein, upon the victim girl, in the light of the evidences coming on record more particularly the evidence of the prosecutrix and PW-5 can be held to be consensual in nature and accordingly, the charge of rape as laid against the appellant, herein, would not be sustainable. The learned counsel by referring to the depositions of the prosecutrix as well as the other relevant witnesses has submitted that a doubt having arisen with regard to the commission of the said offence, the said doubt ought to have been extended to the appellant, herein, and he was require to exonerated from the charge so Page No.# 4/15 framed against him before the learned Trial Court. The learned counsel for the appellant has further submitted that even if it is to be believed that the appellant had taken the prosecutrix to the quarter for having a meal, the charge of rape cannot be held to be proved. 5. The learned counsel for the appellant has submitted that although a medical examination of the prosecutrix was found to have been carried out, the medical report was not exhibited, inasmuch as, the same was not collected by the Investigating Officer. The learned counsel further submits that the prosecutrix during the deposition has deposed that she had raised hue and cry when she was subjected to forcible sexual intercourse by the appellant, herein, however the evidence of the PW-5 reveals that there were other personnel of the police station staying in quarters adjacent to the quarter of the appellant and there is no evidence brought on record to establish that such hue and cry purportedly raised by the prosecutrix was heard by them at the relevant point of time. Accordingly, he submits that even if the prosecution case is held to be believed, the allegation of rape is not established and at best, the sexual intercourse even if held to have been committed by the appellant, herein, is to be held to have been so done with the consent of the prosecutrix and accordingly, the conviction of the appellant for commission of an offence of rape would not be sustainable and the impugned Judgment mandate an interference from this court. 6. Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor, appearing for the State, by referring to the evidences coming on record during the Trial has submitted that the deposition of the prosecutrix as PW-7 was not dislodged by the defence and the same having brought to the forefront, commission of forcible sexual intercourse upon the prosecutrix by the appellant, herein, the conviction of the appellant under Section 376(2)(a)(i) IPC would not Page No.# 5/15 mandate an interference by this Court. 7. Mr. M. P. Goswami, further submitted that the statement of the PW-7 during her deposition under Section 164 IPC , wherein, she has stated that the appellant, herein, had not committed any offence upon her, was clarified by the prosecutrix during her deposition in the Trial by projecting that she was required by a police personnel not to depose anything about the incident before the Magistrate during the recording of her statement under Section 164 IPC. Accordingly, he submits that the impugned Judgment of the learned Trial Court convicting the appellant, herein, would not mandate any interference. 8. I have heard the learned counsel for the parties and also perused the materials available on record. 9. This Court for the purpose of appreciating the rival contentions of the learned counsel for the parties deems it necessary to notice the depositions of the witnesses during the Trial. Dabari Munda had deposed as PW-1 and in her deposition she had deposed that around 3(three) years back she along with one Anima Munda(PW-3), were proceeding to Shillong along with the prosecutrix and were caught at Tamulpur Matanga Chowk by the police and were taken to the police station. She further deposed that the prosecutrix had gone with the appellant to take meal and after returning back the prosecutrix had told her that the appellant committed rape on her. During her cross examination PW-1 reveals that the appellant was sitting in another room and there were other police personnel in the police station. She further deposed that she has met the prosecutrix in the bus and was not previously acquainted with the prosecutrix. She also deposed that she had not seen where the prosecutrix went to have her meal. Page No.# 6/15 PW-2, Rita Munda, during her deposition deposed that around 3(three) years back she along with Dabari Munda(PW-1), Anima Munda(PW-3) and the prosecutrix were proceeding to Shillong and at Tamulpur Matanga Matanga Chowk, the police had caught them and taken them to the police station. She deposed that the appellant, herein, had taken the prosecutrix to have meal and after returning back the prosecutrix had told PW-1 that the appellant, herein, had done bad act with her. During her cross-examination PW-2 deposed that she had not seen the prosecutrix go to the house of the appellant, herein. She further deposed that the police had caught her and others while the members of ABSU informed the police that they were taken for selling. She deposed that prosecutrix did not belong to her village and on the date of the occurrence for the first time she had met the prosecutrix. She further deposed that the prosecutrix had revealed to her that the appellant, herein, had taken her to his room and further she did not know as to whether the said room was the office or the residence of the appellant. PW-3 Anima Munda deposed that she along with Rita Munda(PW-2) and Anima Munda(PW-3) were going to Shillong and were caught by the police at Tamulpur Matanga Chowk and brought to Tamulpur police station, wherein the prosecutrix was present. She reiterated about the bad act committed upon the prosecutrix by the Officer-in-Charge. During her cross-examination she deposed that the appellant, herein, was in the police station while the prosecutrix had gone to take her meal. She further deposed that when the prosecutrix was telling her about the incident, police were not present there. PW-4, Home Guard, Musstt. Jamila Begum, deposed that on the date of the Page No.# 7/15 occurrence she was on duty at Kourbaha PHC and at around 10/11 p.m, she had gone to the Tamulpur police station on being called by the Officer-in-Charge. She deposed that in the police station she kept the prosecutrix under guard. She further deposed that in the police station one petticoat of the prosecutrix was seized and she had signed therein, as a seizure witness. During her cross-examination, PW-4 deposed that she did not know about the incident and she did not know from whom the petticoat was seized. PW-5 constable Pradip Kr. Roy, deposed that on 18.07.2010, the incident had occasioned and on that day he was entrusted with sentry duty at Tamulpur Police Station. He deposed that on the day of the incident 5(five) woman including the prosecutrix were caught by Bodo youths at Matanga Chowk and were handed over to the police in the Police Station. He further deposed that the Officer-in-Charge of the Police Station was Kumud Sarma and after he had left the Police Station, the appellant, herein, had come to the police station and sat in his official room. He further deposed that the appellant, herein, had told him that he would take the prosecutrix to his room to give her ‘Ruti’ (Indian bread) to eat. PW-5 further deposed that he had told the appellant, herein, not to take the prosecutrix and that she would be given ‘Ruti’ in the police station itself. However, the appellant did not pay any heed to it and had taken the prosecutrix to his residence. He further deposed that after 5(five) minutes he had informed the Officer-in-Charge, Kumud Sarma, about taking away of the prosecutrix by the appellant to his room. He deposed that the Officer-in-Charge asked him to get the prosecutrix back to the police station and accordingly, he went to the quarter of the appellant and brought the prosecutrix back with him. He deposed that on their way back to the police station, the prosecutrix had cried and informed him that the appellant had done bad act with her. He further deposed Page No.# 8/15 of having informed the Officer-in-Charge about the incident and as directed by the Officer-in-Charge he had kept the prosecutrix in the police station. He further deposed that on the next day of the incident, the Officer-in-Charge seized one ‘Lungi’, and one bed sheet from the quarter of the appellant and he had signed therein, as a seizure witness. He also deposed to have given his statement before the Magistrate in connection with the incident. PW-5 during his cross-examination deposed that he and Bipul Das used to stay in one part of the quarter of the appellant and at the time of the occurrence of the incident Bipul Das was in his quarter. He also deposed that the prosecutrix was not willing to go with the appellant during his call. PW-5 further deposed that Hemen Barauh and Rekib were in the verandah. PW-5 also deposed that when he had gone to the quarter of the appellant, herein, the door of the quarter was closed though it was not bolted and that Hemen and Rekib were in their quarter which was situated near the quarter of the appellant. And at the time of the incident, Rekib was not on duty in the P.S. PW-6 constable Hemen Barua in his deposition had deposed that at the time of the incident he was sleeping in his quarter and in the night he had heard ‘halla’ in the police station and the next day in the morning he had learnt that the accused had taken the prosecutrix to his quarter and did bad act with her. During his cross-examination PW-6 deposed that he had heard about the incident from the police who were on sentry duty and had not heard anything from the prosecutrix. He further deposed that the appellant, herein, had disagreement with the Officer-in-Charge. PW-7 is the prosecutrix and the informant of the case and during her deposition she deposed that on the date of the occurrence, while she along with one Maya@Ajita were going to Umrangsu by a Tracker, the members of the ABSU Page No.# 9/15 held them at Tamulpur and on being informed by the members of the ABSU, police had come there and taken them to the police station. Prosecutrix further deposed that her nephew was also with her and there were some other woman of the tea garden in the police station. She deposed that during the night the appellant had called her to his quarter to have meal, however, she was not willing to go but one police personnel of the police station asked her to go and accordingly, she went to the quarter of the appellant. She deposed that the appellant had gone to the quarter prior to her and she had followed him. The prosecutrix deposed that on reaching the quarter of the appellant, she was offered water and ‘Ruti’ by the appellant and the appellant offered her betel nut and liquor. However, she refused to have liquor. PW-7 further deposed that the accused forcibly administered liquor to her and he had also drunk liquor. She further deposed that when she was about to leave the quarter of the appellant, the appellant pushed her down and had forcible sexual intercourse with her. She also deposed to have raised hue and cry at the time. She further deposed that at that time police had come and had taken her away from there. She deposed that the Officer-in-Charge later seized the clothes of the bed and also deposed that she lodged an FIR wherein, she put her thumb impression. She further deposed she was examined by the Doctor and her statement was recorded by the Magistrate. During her cross-examination, PW-7 deposed that at the time of occurrence, she was married and that after the incident about 5-6 police personnel had gone to the quarter of the appellant, herein. She further deposed that there were quarters of other police personnel near the quarter of the appellant, herein. PW- 7 further deposed that she had lodged the FIR as asked by the Officer-in-Charge and the FIR was written by the Officer-in-Charge. She also deposed that while the appellant was committing rape on her, she has raised alarm. PW-7 referring Page No.# 10/15 to the statement made by her before the Magistrate that the appellant could not do anything to her, had deposed, while being queried by the Court, that she had said so on one police personnel asking her not to speak about the incident before the Magistrate and therefore she stated before the Magistrate that the appellant did nothing to her. She further deposed that she was caught by the members of the ABSU on the allegation of procuring girls for brothel house. She also deposed of having stated about the incident before the police in the night itself. She also denied the suggestion that she had filed a case against the appellant in conspiracy with the Officer-in-Charge. PW-8 Babita Kshetry, the then Additional Chief Judicial Magistrate, Tejpur, during her deposition had stated that on 20.07.2010, while she was working as SDJM at Nalbari, she had recorded the statement of the prosecutrix and the prosecutrix had stated before her that the appellant had done nothing to her. PW-8 further deposed that the prosecutrix did not state before her that she had given her statement before her as taught by the police. PW-9, Manalisa Choudhury, deposed that she was working as Jr. Scientific Officer in Serology Division Directorate of Forensic Science, Assam, Kahilipara and that she had received one parcel from the D.F.S in connection with Tamulpur P.S. Case No.109/10. She deposed that the parcel contained 4(four) exhibits enclosed with sealed cover and each exhibit was wrapped separately. She further deposed that during the examination of the exhibits, nothing incriminating against the appellant, herein, was found. PW-10, Inspector Kumud Ch. Sarma, deposed that he was working on 19.07.2010 as the Officer-in-Charge of Tamulpur P.S and he had registered Tamulpur P.S. Case No.109/10 on the basis of the FIR filed by the prosecutrix and had conducted investigation into the same. He deposed that he had sent the Page No.# 11/15 prosecutrix to SMK Civil Hospital for medical examination but had not collected the medical report. He further deposed that on conclusion of the evidence he had laid the charge-sheet against the appellant, herein, under Section 376 (2) a (ii) IPC. During his cross-examination PW-10 reveal that the PW-2 had not stated before him that the prosecutrix told her that the appellant did bad act with her. PW-10 further deposed that PW-2 had stated before him that she had learnt that the appellant took the prosecutrix to his room and did bad act with her. PW-10 further deposed that PW-5 Pradip Kr. Roy did not state before him that the prosecutrix cried on their way back to the police station. He further deposed that the prosecutrix had not stated before him that the appellant offered liquor to her. PW-10 further deposed that the prosecutrix was not arrested in any case and the prosecutrix and other woman were handed over to the police by the members of ABSU. He further deposed that the woman were kept under guard of a woman Home Guard, Jamila Khatun. PW-10 further deposed that the quarter of the appellant was within the campus of the police station and denied the suggestion that he had any enmity with the appellant and to malign the appellant he had lodged the false cause through the prosecutrix. 10. Having noticed the deposition of the prosecution witnesses, this Court finds that the appellant during his examination under Section 313 CrPC had denied the question put to him during such examination. The FIR was lodged by the prosecutrix on 19.07.2010 and therein, had stated that she was called by the appellant, herein, to his room for eating ‘chapati’ at around 11.00 p.m. and accordingly, she had gone with him and had taken 2(two) ‘chapatis’. She further deposed that the appellant had informed her that he wants to enjoy her, however, she did not consent to it. She further Page No.# 12/15 alleged that the appellant had taken her thereafter to his bedroom and had raped her and had asked her not to tell anybody and also threaten that if she tells anybody it would be bad for her. She further stated in the FIR that she was brought back to the police station by the appellant and was kept with the other girls and she had not said anything about the incident to anybody out of fear. It was further disclosed in the FIR that on the next day morning she had informed the matter to one of the girls but did not tell the police. However, the police is stated to have known about the matter and then she spoke about the appellant before them and informed them in writing. The prosecutrix during her examination under Section 164 IPC before the Magistrate had stated that the appellant, herein, had done nothing with her. 11. Having noticed the said position, this Court on an examination of the deposition of the PW-7 during the Trial finds that the prosecutrix had stated that she was raped by the appellant and also that she had raised hue and cry when she was being raped by the appellant. In her deposition the prosecutrix had not disclosed about informing of the said incident during the night to anyone including the police. The deposition of the prosecutrix would go to reveal that the police had reached the quarter of the appellant, herein, on hearing the hue and cry raised by her and that more than one police personnel had gone to the quarter of the appellant and had brought her back to the police station. During her cross-examination, although she had stated that she had informed the police about the incident in the night itself, the same is not supported by the contentions raised in the FIR which was immediately lodged after the occurrence of the incident, wherein, she had stated that it was only in the morning of the next day, that she had informed the matter to one of the girls and still not to the police. Page No.# 13/15 12. Having noticed the said position, this Court would examine the evidence adduced by PW-5. PW-5 during his deposition had stated that within 5(five) minutes of the prosecutrix being taken by the appellant to his quarter, he had informed the matter to the Officer-In-Charge and as directed by the Officer-In- Charge, he had proceeded to the quarter of the appellant and had brought the prosecutrix back to the police station. He further deposed that while coming back to the police station, the prosecutrix had cried and had informed him about the bad act committed upon her by the appellant. The deposition of the PW-5 also brings on record that in the part-house of the quarter of the appellant, there were police personnel available, however none of the said police personnel had deposed that they had heard the hue and cry of the prosecutrix while she was being subjected to forcible sexual intercourse by the appellant, herein. PW-6, who was in his quarter had only deposed that he had heard ‘hulla’ in the police station and not in the adjacent quarter. This when viewed in the light of the deposition of the prosecutrix that she had raised hue and cry while being subjected to forcible sexual intercourse by the appellant, herein, renders the evidence adduced by the prosecutrix, to be doubtful. 13. The FSL examination of the seized material had not brought on record any incriminating material against the appellant, herein, and this coupled with the fact that although a medical examination of the prosecutrix was carried out, the report thereof was not collected by the appellant, leads to a situation, wherein the projection made by the prosecutrix of having subjected to forcible sexual intercourse by the appellant being rendered doubtful. It is seen from the depositions of the prosecutrix that she had deposed facts which she admittedly had not disclosed to the police immediately after the occurrence of the incident and also in the FIR lodged in the matter. Page No.# 14/15 14. From the discussion made hereinabove, it appears to this Court that the evidence of the prosecutrix cannot be safely relied upon to base the conviction of the appellant, herein. The evidence of the prosecutrix does not inspire confidence. The place of occurrence of the incident is inside the quarter of the appellant, the door of which admittedly was not bolted and there were other police personnel residing in a part thereof and also in the adjacent quarters. No evidence as noticed, hereinabove, was brought on record that the police personnel in the part house of the quarter of the appellant and the adjacent quarters had heard about the cries of the prosecutrix while she was subjected to forceful sexual intercourse during the night of 18.07.2010. The contradictory statements of the appellant made in the FIR, in her statement recorded under Section 164 IPC, as well as during her examination in the Trial, leads to a situation wherein, the commission of forceful sexual intercourse by the appellant with the prosecutrix is rendered doubtful. 15. In view of the above and on an overall appreciation of the evidences coming on record, this Court is of the considered view that the PW-1 is not reliable witness and accordingly, the conviction of the appellant cannot be based solely upon the evidence of the prosecutrix. 16. It is a settled position of law that conviction of an accused on the basis of the testimony of a prosecutrix alone is permissible, but this is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in the case is not of such quality and there is no other evidence on record which may lend some assurance, short of corroboration that she has made a truthful statement. Accordingly, this Court is of the considered view that the conviction of the appellant, herein, by the learned Trial Court would mandate an interference. Page No.# 15/15 17. The materials brought on record, having also brought on record a view that of the appellant, having committed consensual sexual intercourse with the prosecutrix, the said view being favourable to the appellant ought to be extended to him and consequently the impugned Judgment dated 04.01.2014, passed by the learned Assistant Session Judge, Nalbari, in Sessions Case No.42/2012, stands set aside. 18. The appellant stands acquitted of the charge under Section 376(2)(a)(i) IPC, and the bail bonds executed by him, stands discharged. 19. The appeal accordingly, stands allowed. 20. Registry to send down the records of the case to the learned Trial Court along with a copy of this order for information and necessary action. JUDGE Comparing Assistant