Page No.# 1/18 GAHC010014242026 2026:GAU-AS:9968 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./36/2026 MD FOSORUDDIN ALIAS BENGU SEIKH S/O- LT. JOHURUDDIN, R/O- VILL- SIDHAKHOWA, P.O.- UDALGURI P.S.- ROWTA, DISTRICT- UDALGURI, ASSAM, PIN-784514 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PUBLIC PROSECUTOR, ASSAM. 2:MD SURAJ ALI S/O- LT. KAMARUDDIN FAKIR R/O- SIDHAKHOWA P.O.- UDALGURI P.S.- ROWTA DISTRICT- UDALGURI ASSAM PIN-784514 Advocate for the Petitioner : MR. S CHAUHAN, B CHOWHAN,R DEB,M. BORUAH,MR. P MAZUMDER Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND Advocates for the Appellant : Mr. S. Chauhan Page No.# 2/18 Mr. P. Mazumder Advocate for the respondents : Ms. S.H. Bora, Addl.P.P. Ms. T. Parashar, Amicus Curiae. Date on which judgment is reserved: 21.05.2026 Date of pronouncement of judgment : 21.07.2026 Whether the pronouncement is of the operative part of the judgment : Full judgment. Whether the full judgment has been pronounced : Yes JUDGEMENT AND ORDER (ORAL) This appeal is directed against the judgment and order dated 06.12.2025 and 09.12.2025 passed by the learned Special Judge, Udalguri in connection with Special (POCSO) Case No. 116/2023, convicting Md. Fosoruddin @ Bengu Seikh (hereinafter referred to as the appellant or the accused) under Section 448 of the Indian Penal Code, 1860 (IPC for short) and sentencing him to undergo rigorous imprisonment for 6 months and under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POSCO Act for short) and sentencing him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand) with default clause. Factual Matrix :- 2. The genesis of the case was that on 21.05.2023 at about 2:00 PM when the informant and the other family members were not at home, the appellant in the pretext of charging his mobile phone, entered into the informant's house Page No.# 3/18 and forcefully committed rape on the minor victim X. The minor victim X is the granddaughter of the informant Y. The victim was only 12 years of age at the time of the alleged incident. On the basis of the FIR lodged by the informant Y, Rowta PS Case No. 101/2023 was registered under section 448/376(3) IPC read with Section 4 of the POCSO Act and the Investigating Officer (IO for short) was entrusted with the investigation. 3. The IO embarked upon the investigation. He recorded the statements of the witnesses, prepared a sketch map of the place of occurrence (PO for short) and forwarded the victim for medical examination. The victim was also forwarded to the Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure, 1973 (CrPC for short). On finding prima facie materials, charge sheet was laid against the appellant under section 448/376(3) of the IPC read with Section 4 of the POCSO Act. On the appearance of the appellant, a formal charge under section 448/376(3) IPC read with section 4 of the POCSO Act was framed and read over and explained to the appellant and the appellant abjured his guilt and claimed innocence. 4. To substantiate its stance, the prosecution adduced the evidence of 8 (Eight) witnesses including the Medical Officer (MO for short) and the IO and the defence adduced the evidence of 3 (Three) witnesses to refute the charges. 5. On the incriminating circumstances arising against him, several questions were asked to the appellant and the tenor of his answers, depicts a plea of total denial. His answers appear to be evasive in nature. To substantiate the evidence, several documents have also been examined. The witnesses examined in this case, and the documents exhibited are as follows :– Page No.# 4/18 A P P E N D I X LIST OF THE PROSECUTION/DEFENCE/COURT WITNESSES A. Prosecution Rank Name Nature of evidence P.W.-1 Md. Suraj Ali Informant witness. P.W.-2 Victim-X Informant witness. P.W.-3 Mosst. Saharu Begum Other witness. P.W.-4 Mosst. Anjumera Begum Other witness. P.W.-5 Musst. Rabiya Khatun Other witness. P.W.-6 Md. Jalaluddin Ahmed Other witness. P.W.-7 Dr. Nobojit Hajoari Medical witness. P.W.-8 SI Bhagya Deka Police witness. B. Defence witnesses :- Rank Name Nature of evidence D.W.-1 Md. Fosoruddin @ Bengu Seikh Other witness. D.W.-2 Mosst. Sabina Yasmin @ Begum Other witness. D.W.-3 Md. Muhajal Ali Other witness. LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS A. Prosecution Exhibits Sl. No. Exhibit Number Description 1. Ext.-P1/PW1 Ejahar. 2. Ext.-P2/PW1 Seizure list. 3. Ext.-P3/PW2 Statement of victim u/s 164 Cr.P.C. 4. Ext.P4/PW7 Medical report. 5. Ext.-P5/PW8 Sketch map Page No.# 5/18 6. Ext.-P6/PW8 Charge sheet 6. The following points were taken up to decide this case in its proper perspective. POINTS FOR DETERMINATION:- “I. Whether the Accused A-1, on 21-05-2023, at about 02 PM at village Sidhakhowa under Rowta P.S., committed house trespass by entering into the residential house of informant with intent to commit rape upon the victim, as alleged? II. Whether the Accused A-1, on 21-05-2023, at about 02 PM at village Sidhakhowa under Rowta P.S., forcibly dragged the victim inside the house and committed rape upon the victim girl 'X' under 16 years of age, as alleged? III. Whether the Accused A-1, on 21-05-2023, at about 02 PM at village Sidhakhowa under Rowta P.S., committed penetrative sexual assault upon victim a minor girl, as alleged?” 7. It has been held by the learned Trial Court that the victim as PW-2 has substantiated the prosecution case of her grandfather that when the informant and his family members went towards the market, the victim was alone at home and then the appellant came and dragged the victim from the place where she was washing the utensils and brought her inside the house and committed rape on her. 8. This fact has been narrated by the victim as PW-2, who also stated that she was alone at home with her 10 year old brother and she was washing utensils while her brother was playing outside when the appellant came to their Page No.# 6/18 house in the pretext of charging his mobile. The appellant then brought her inside and committed rape on her. When she raised alarm, her younger brother came and then the appellant fled. It has also been held by the learned Trial Court that the evidence of the victim as PW-2 is consistent to her statement under Section 164 CrPC. It was also held that the evidence of PW-3, 4 and 5 substantiates and corroborates the evidence of the PW-1 as well as the informant. 9. The Trial Court has held that as the medico-legal report of the victim does not reveal any injuries on her private parts, there appears to be a nagging doubt if the appellant committed penetrative sexual assault on the victim. Appellant was then held guilty of offence under Section 8 of the POCSO Act instead of Section 4 of the POCSO Act and sentenced to undergo rigorous imprisonment for 3 (Three) years. 10. Heard learned counsel Mr. S. Chauhan and Mr. P. Mazumder for the appellant, learned Amicus Curiae Ms. T. Parashar for the respondent No. 2 and learned Additional Public Prosecutor Ms. S.H. Bora for the respondent No. 1. Arguments for the Appellant :- 11. The learned counsel for the appellant has laid stress in his argument that there are too many contradictions in the evidence and the appellant is entitled to a benefit of doubt. It is submitted that the victim deposed as PW-2 that PW-1 is her uncle, whereas on the contrary PW-1 has mentioned in the FIR that he is the grandfather of the victim. Furthermore, the informant stated that the victim was a student at Jatiya Vidyalaya School, whereas as PW-1, the informant stated that the victim was studying at Bannad Madrassa. PW-2 also testified in her evidence that on the day of the incident she did not attend school as it was Page No.# 7/18 a Sunday, whereas PW-1 testified in his cross-examination that the victim went to school on the day of the incident. 12. The learned counsel also laid stress in his argument that the victim's 10 year old brother was an important witness and he was not examined by the prosecution. 13. Per contra, learned Amicus Curiae Ms. T. Parashar laid stress in her argument that the incident took place in the privacy of the victim's house in absence of any family members and evidence of eyewitness is not forthcoming. The victim's statement is consistent and reliable and she is a sterling witness. No contradictions could be elicited through the cross-examination of the witnesses. It is submitted that the victim's parents work in Tamil Nadu. It is also submitted that medical report in cases of sexual assault is not required. The hymen of the victim was also not examined. The opinion of the doctor is not relevant but the opinion of the Court on the basis of the medical report is relevant. The evidence of DW-1 about borrowing money has not been substantiated with documents and thus, the evidence of the defence witnesses could not dispel the evidence adduced by the prosecution. Arguments by the Prosecution :- 14. The learned Additional PP laid stress in her argument that the statement of the victim under 164 CrPC has been exhibited and the victim's testimony as a witness is consistent to her statement under Section 164 CrPC. It is further submitted that in a case of rape or sexual offence, lack of injuries in a medical report does not exonerate the accused or the appellant. The defence failed to elicit any material contradictions to rebut the credence of the witnesses. The presumption under Sections 29 and 30 of the POCSO Act operates against the Page No.# 8/18 appellant. The victim in this case is a sterling witness as her initial statements have been substantiated by her testimony in the Court. 15. Learned Additional PP has also submitted that the appellant was let off with punishment for a lesser offence. Analysis and Decision :- 16. I have given my thoughtful consideration to the submissions at the bar. As this is a first appeal, the evidence can be re-appreciated. 17. The informant Y deposed as PW-1 that the appellant is a co-villager and the victim is his granddaughter. On 21.05.2023 at about 2:00 PM, while the victim was washing the utensils, the appellant on the pretext of getting his mobile charged, entered into his residence in absence of any of the family members, except the victim. The appellant grabbed the victim from behind and gagged her by her mouth, and forcibly brought her inside the house and committed rape on her. The victim raised alarm and the children who were playing nearby came. The neighbours also rushed to the informant’s residence and the appellant fled from the place of occurrence (PO for short). 18. PW-1 further deposed that at the time of the incident, he was in the market and Hafijur Rahman informed him over phone about the incident. He immediately returned to his house and found the victim weeping. When he asked the victim about the reason of her misery, she narrated the entire incident in detail, describing how the appellant committed penetrative sexual assault on her. He immediately informed the VDP Secretary about the incident and on his advice, lodged the FIR with the police at Rowta Police Station. At the time of the incident the victim was 12 years old and she was a student of Class VII in Bannad Madrassa. The police seized the birth certificate of the victim on being Page No.# 9/18 produced by the family. He has proved his signature on the FIR lodged by him as Ext.P1(1)/PW1 and his signature on the seizure list as Ext.P2(1)/PW. 19. This evidence of PW-1 is substantiated and corroborated by the evidence of the victim, who also stated that at the time of the incident, she was alone at him with her younger brother Habijur Rahman, aged about 10 years. At that time, her younger brother was playing outside the house. She tried to raise alarm at the time of the incident of rape, but the appellant prevented her by gagging her by her mouth. When she cried, her younger brother entered into the house and the appellant immediately fled the scene. After some time, their neighbour Sahura Khatun came to their house and asked her why she was in tears and then she narrated the entire incident to Sahura Khatun. After an hour, her parents returned home and she narrated the entire incident to her parents. She was produced before the Magistrate for recording her statement under Section 164 of the CrPC. She has proved her statement under Section 164 of the CrPC as Ext-P3/PW2. She has proved her signatures as Ext-P3(1)/PW2 and Ext-P3(2)/PW2 on her statement. The police seized her birth certificate and she has identified the seizure list as Ext-P2 and her signature as Ext-P2(2)/PW2. 20. The cross-examination of PW-1 reveals that the victim returned home from the school at about 12:00 noon, whereas the cross-examination of PW-2 reveals that she did not attend school on the day of the incident as it was a Sunday. It is true that these are contradictions, but these contradictions do not thwart the evidence as these are minor contradictions and can be safely brushed aside. However, no contradictions as per Section 145 of the Indian Evidence Act, 1872 (the Evidence Act for short) qua Section 162 of the CrPC could be elicited through the cross-examination of PW-1 and PW2. The only contradiction that could be elicited through the cross-examination of PW-1 vis- Page No.# 10/18 à-vis the cross-examination of the IO, SI Bhagya Deka as PW-8 is that PW-1 did not mention in his initial statement that at the time of the incident, some children were playing near his residence and these children came to the PO after the victim raised alarm. This cross-examination does not negate the evidence that the appellant committed sexual assault on the victim X. 21. It is true that the victim stated in her cross-examination that her parents used to stay outside the State in Tamil Nadu for work, but she had not stated that her parents were in Tamil Nadu at the time of the incident, as argued by the learned counsel for the appellant. 22. Although the victim was cross-examined in extenso, no contradictions could be elicited through the vigorous cross-examination of the victim as per Section 145 of the Evidence Act vis-à-vis Section 162 of the CrPC. The evidence of PW-2 has been corroborated by the evidence of Musst. Saharu Begum. She is a neighbour and she has testified as PW-3 that on the day of the incident, she heard a commotion emanating from the PO and she went there and saw the victim in the courtyard, crying. When enquired, the victim replied that the appellant came to their house when she was alone at home. In her cross- examination, she has stated that the victim did not mention that the appellant had done her wrong. 23. At this stage, it is pertinent to mention that the appellant was not convicted for offence of penetrative sexual assault. He was convicted under a lower offence. The Trial Court did not find the appellant guilty of the offence of penetrative sexual assault as the medico-legal report did not reveal any injuries sustained by the victim on examination of the victim after the incident. The evidence of PW-1, PW-2 and PW-3 clearly describes the sequel of events. The victim girl being a young girl was hesitant to disclose the entire incident to PW- Page No.# 11/18 3, but the victim’s evidence that PW-3 came to their house immediately after the incident has been corroborated by the evidence of PW-3. It is also amply clear that the victim was in tears, which implies the conduct of the appellant. Why would the victim cry when she was alone with the appellant in her house? This has been clearly explained by the victim and her father. When there is clinching evidence that the appellant committed sexual assault on the victim, a Court is not required to probe for minor contradictions to grant relief to an accused. 24. The evidence of PW-1, PW-2 and PW3 has also been substantiated by the evidence of Z, who deposed as PW-4 that the victim is her granddaughter and the informant is her husband. She further testified that on the previous year, when she was not at home, the appellant came to their house and physically touched the victim girl. After they returned home, she noticed that her granddaughter was in tears and her granddaughter informed her that the appellant came to their house and touched her. In her cross-examination, she testified that the victim also stated that the appellant had not wronged her, but the victim specifically stated that the appellant touched her. 25. Although PW-4 did not directly implicate that the appellant had outraged the modesty of the victim, yet the evidence of PW-4 clearly reveals that the victim was in tears when they reached home and the victim stated that the appellant came to their house when she was alone at home. Thus, the evidence of PW-1 that the appellant committed sexual assault on her, cannot be dismissed on the submission that the grandmother’s evidence does not support the fact that the appellant had outraged the victim’s modesty. The evidence of the grandmother of the victim is clear that the victim was in tears at the time of the incident, which implies that the appellant was alone at home with the victim Page No.# 12/18 and the appellant was responsible for the victim’s miserable state of mind. Moreover, PW-4 has stated that the appellant touched the victim. It is discernible that any rational person could reckon why a victim would cry on being touched by a predator. On the backdrop of the clinching and cogent evidence adduced by the sterling witness and her grandfather, the substantiating evidence of PW-3 and PW-4 cannot be assessed to be presumption. 26. Similarly, Musst. Rabiya Khatun, co-villager deposed as PW-5 that on the day of the incident, on the previous year, she heard that the appellant held the victim’s hand. The victim was about 12-13 years of age at the time of the incident. However, she testified in her cross-examination that she did not know in which place the appellant held the victim’s hand. PW-6 was declared a hostile witness. 27. Md. Abdul Hamid, VDP Secretary, deposed as PW-6 that in the previous year, the O/C of Rowta PS informed him over phone that the appellant committed rape on the minor victim and he had accompanied the police to the PO. This witness was declared a hostile witness and he was cross-examined by the prosecution. 28. This witness has been cross-examined by the prosecution, after this witness was declared hostile and she denied that she had stated before the IO that on the evening of 21.05.2023, he was informed by the informant over phone that his granddaughter was forcibly raped by the appellant inside their house in his absence. In his cross-examination by the defence, PW-6 also stated that he went to the informant's house to enquire about the matter and he was informed about the incident by the police. However, he denied any knowledge about the incident. Page No.# 13/18 29. Although the prosecution declared this witness as a hostile witness, the prosecution failed to affirm his initial statement when the IO, PW-8 was examined. The evidence of PW-6 cannot be effaced from the record as PW-6 has stated in his examination-in-chief that the O/C of Rowta P.S. informed him over phone that the appellant committed rape on the minor victim X, and he accompanied the police to the PO. Thus, the fact that an incident of sexual assault had occurred and X, was the victim, cannot be ignored. 30. The Medical Officer, Dr. Nobojit Hajoari deposed as PW-7 that on 21.05.2023, he was posted at Udalguri Civil Hospital as Sr. M&HO. On that day, he examined the victim in connection with Rowta P.S. Case No. 101/2023. His opinion reveals that the victim's radiological age was between 12-14 years. He has however stated that there were no signs of external injury and no spermatozoa was detected on the vaginal smear and USG W/A shows normal report. He proved his medical report as Ext-P4/PW7 and his signature as Ext- P4(1)/PW7. Evidence of PW-7 clearly reveals that the victim was below 14 years of age at the time of the incident. 31. The IO S. I. Bhagya Deka deposed as PW-8 that on 21.05.2023, he was posted as 2nd Officer at Rowta P.S. and on that day, the informant lodged an FIR. The O/C registered the case and endorsed him with the investigation. He embarked upon the investigation. He recorded the statements of the informant and the victim in the police station and then, he forwarded the victim for medical examination and also for recording her statement under Section 164 CrPC. He went to the PO, seized the birth certificate of the victim girl and prepared the sketch map and recorded the statements of the other witnesses. Then, he searched for the appellant, but could not trace him out. After three days the appellant surrendered before the police. He recorded his statement Page No.# 14/18 and arrested him. After conclusion of investigation and on finding sufficient materials against the appellant, he submitted charge sheet against the appellant under Section 448/376(c) IPC read with Section 4 of the POCSO Act. He proved his signature on the seizure list as Ext-P2(3)/PW8 and his signature on the sketch map as Ext-P5(1)/PW8 and his signature on the charge sheet as Ext- P6(1)/PW8. 32. Although the learned counsel for the appellant has disputed the birth certificate of the victim being a copy and not an original, the evidence of PW-7 clearly proves that the victim was below 14 years of age and above 12 years of age. It is also apt to mention that the evidence of the appellant as DW-1 and the evidence of defence witnesses as DW-2 and DW-3 has failed to repel the evidence adduced by the prosecution. 33. The appellant as DW-1 stated that on the day of the incident, he went to the roadside where he met his brother and the informant. Then he demanded the money lent to the informant's son by his brother and the informant’s son refused to repay the loan. DW-1 then apprised that he will take legal help to recover the money. To avenge his demand, the informant lodged a false case against him. DW-1 has stressed that he is innocent and a false case has been slammed against him. 34. Another witness, Most. Sabina Yasmin @ Begum, deposed as DW-2 that both the parties are known to her. A land dispute is prevalent between both the parties and a false case has been filed by the informant against the appellant. She denied any knowledge about any offence of rape. As a VDP secretary, she was informed that the appellant went to the informant's house to demand the money to be returned to his brother. She further stated that she asked the victim girl about the incident of rape, but the victim girl did not inform anything Page No.# 15/18 about any offence of rape. When the police came to the village searching for the appellant, he was found to be missing from the village. Subsequently, after three days, she took the appellant and handed him over to the police. 35. This evidence of DW-2 and PW-8 clearly reveals the conduct of the appellant after the incident. Section 8 of the Evidence Act says that the conduct, motive, preparation and previous or subsequent conduct of a party is relevant. The evidence of DW-1 and DW-2 reveals that the informant's son borrowed money from the brother of the appellant, whereas DW-3 went a step further and stated that land and money dispute is prevalent between the appellant and the informant. 36. The evidence of DW-3, Md Muhajal Ali reveals that a money dispute is prevalent between the informant and the appellant. If a money dispute is prevalent between the informant and the appellant, then the dispute will be between the informant and the appellant and not the brother of the appellant and the informant's son. The appellant as DW-1 has stated that the money dispute was between his brother and the informant's son, whereas DW-2 and DW-3 have testified that the money dispute was prevalent between the appellant and the informant. Both DW-2 and DW-3 deposed in a nonchalant way about a money dispute existing between the informant and the appellant, whereas the appellant's evidence reveals that the money dispute was between his brother and the informant's son. 37. It has to be borne in mind that the appellant immediately disappeared after the incident for three days. DW-2 produced the appellant after three days before the police. 38. An allegation of sexual assault has been levelled against the appellant by Page No.# 16/18 a minor girl who was below 14 years of age and thereafter, the appellant disappeared. Thus, the conduct of the appellant in this case is also relevant. On this backdrop, the dissimilar evidence of DW-1, DW-2 and DW-3 could not dispel the evidence adduced by the prosecution witnesses, even on the touchstone of pre-ponderance of probabilities. 39. Although the learned Trial Court has not convicted the appellant under Section 4 of the POSCO Act, despite clinching evidence of sexual assault against the appellant, this Court concurs with the decision of the learned Trial Court. A victim, although a young girl, has failed to describe in what manner the appellant committed penetrative sexual assault on her to convict him of offence under Section 4 of the POSCO Act. It is true that the victim is a sterling witness and her statement under Section 164 CrPC has been substantiated by her deposition in the Court. However, the appellant gets a benefit of doubt as the victim has not specifically described that the appellant had committed penetrative sexual assault on her. Her grandmother has also stated that the appellant touched her and PW-5 has also stated that the appellant held her hand. PW-1 has testified that the appellant committed penetrative sexual assault on his granddaughter, whereas PW-2, the victim stated that the appellant committed rape on her. 40. It is true that the victim was above 12 years and below 14 years of age at the time of the incident. It is also true that she may have been unable to comprehend the type of offence committed on her. She described the offence as rape before the Court. 41. I find force in the argument of the learned Additional Public Prosecutor that the Medical Officer's opinion that no injuries or spermatozoa were detected Page No.# 17/18 on the private parts of the victim after her examination, does not reflect that no rape was committed on the victim as the Medical Officer's opinion has to be scrutinized by the Court and the Court's opinion is relevant in offences such as rape. 42. No infirmity is discernible in the decision of the learned Trial Court. In view of the foregoing discussions, I am constrained to hold that the appellant has been correctly held guilty of offence under Section 8 of the POCSO Act by the learned Trial Court. It would be apt to reiterate that the victim could not specifically describe how the offence was committed on her due to her young age, but the victim’s statement and the evidence reveal that the appellant had committed sexual assault on the victim which has been described by the victim as rape. It has been correctly held by the learned Trial Court that the prosecution could prove beyond a reasonable doubt that the appellant had indeed committed sexual assault on the victim. The learned Trial Court has correctly considered the aggravating and mitigating circumstances and has convicted the appellant under Section 8 of the POCSO Act. The Court has correctly and elaborately described how this offence falls under Section 8 of the POCSO Act and not under Section 4 of the POCSO Act. 43. In the wake of the foregoing discussions, this Court is hesitant to interfere with the decision of the learned Trial Court as there is clinching evidence that the appellant had committed sexual assault on the victim. The evidence has been correctly assessed to convict the appellant under Section 8 of the POCSO Act. This Court also finds force in the argument of the learned Additional Public Prosecutor that the foundational facts have been proved against the appellant and the presumption as per Sections 29 and 30 of the POCSO Act operates against the appellant, who has failed to rebut the presumption under Sections Page No.# 18/18 29 and 30 of the POCSO Act. The appellant has been correctly convicted for the offence of house trespass under Section 448 of the IPC as the offence was committed inside a dwelling house. I therefore, record my concurrence to the decision of the learned Trial Court. 44. Appeal is hereby dismissed as the appeal is devoid of merits. The period of detention already undergone by the appellant during investigation or trial is set off with the custodial sentence. 45. Send back the Trial Court Records. JUDGE Comparing Assistant