Page No.# 1/8 GAHC010114202023 2026:GAU-AS:10245 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./193/2023 BHIM DAS S/O LATE MONGOLIA DAS, VILL.- KOMAR GAON, P.S.- BISWANATH CHARIALI, DIST.- BISWANATH (ASSAM). VERSUS THE STATE OF ASSAM AND ANR. REP. BY P.P., ASSAM. 2:MAHABIR SAU S/O MANGAL SAU R/O SEWEJPUR P.O. AND P.S.- BISWANATH CHARIALI DIST.- BISWANATH (ASSAM) Advocate for the petitioner : Ms. A. Neog Advocates for the respondents : MS. N. Hassan, Amicus Curiae Mr. S.H. Borah, PP :::BEFORE::: HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Page No.# 2/8 Date on which judgment is reserved : 16.07.2026 Date of pronouncement of judgment : 27.07.2026 Whether the pronouncement is of the Operative part of the judgment : NA Whether the full judgment has been Pronounced : Judgment &Order(CAV) Heard Ms. A. Neog, learned counsel for the appellant. Also heard Ms. N Hasan, learned Amicus Curiae, and Ms. S.H. Borah, learned Additional Public Prosecutor for the State. 2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973, with the impugned Judgment & Order dated 29.04.2023 passed by the learned Sessions Judge, Biswanath, in Sessions Case No. 148/2013 sentencing the accused/appellant under Section 376 of the IPC Rigorous Imprisonment for 10 years and to pay a fine of Rs. 5000/- only, in default of payment of fine, Rigorous Imprisonment for 2 months. 3. The prosecution case, in brief, is that Mahabir Sau, the informant, lodged an ejahar with Biswanath Chariali Police Station on 20.03.2013 informing that 'X' is the daughter of the informant. On 16.03.2023 at about 9.00 in the morning, ‘X’ went to Karmargaon Hindi School. When 'X', on her way to school, reached Kochagaon, the accused Bhim Das took her to his house. The accused Bhim Das took off her panty. The accused then entered his finger into the private part of 'X'. 'X' sustained severe injury on her private part. 4. Upon receipt of an ejahar, Biswanath Chariali Police Station Case No. 60/2013 under Section 376(f) IPC was registered and investigated and upon completion thereof, charge sheet was laid and the Page No.# 3/8 case was committed to the court of sessions. The charge was originally framed under Section 376(f) IPC. But subsequently ordered altered to under Section 376 Indian Penal Code, 1860 which was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 5. Prosecution in order to bring home the charge against the accused, examined 8 witnesses whereafter the accused was examined under Section 313 CrPC, wherein he denied all the allegations and defense declined to adduce evidence. 6. Upon consideration of the evidence on record, the learned trial court convicted and sentenced the appellant as aforesaid. Hence, this appeal. At this stage, the prosecution evidence may be discussed. 7. PW-1 Mahabir Sau has stated in his evidence that he is the informant in this case. He knows the accused. The occurrence took place 1 (one) year ago (from the day of adducing his evidence on 03-05- 2014). On the day of occurrence, his daughter 'X' went to school. On her way to school, the accused called 'X' and took her to his house and then he did evil deed on her. 'X' returned home from school and sat to eat meal. At that moment, he saw bleeding from her private part. He asked her the cause behind that. But she did not answer properly. He took her to doctor. 'X' told before the doctor that the accused committed voluptuous act on her. Then he lodged the ejahar against the accused. PW-1 stated in his cross-examination that 'X' was a student of class II at the time of occurrence. On the day of occurrence, she attended her school. 'X' did not tell him that the accused committed sexual act on her. PW-1 has denied that the accused did not commit sexual act on 'X'. 8. PW2 ‘X’ has stated in her evidence that the informant is her father. At the time of occurrence, she was student of class III. On the day of occurrence, she went to school at about 8 a.m. On her way to school, the accused met and took her to his house and then did evil deed on her. When she returned home from school and sat to have meal, her father saw oozing blood from her private part. Her father Page No.# 4/8 took her to civil hospital. She gave statement before the Magistrate. PW2 in her cross-examination stated that she did not know who lived with the accused. She told the doctor about the occurrence. She told one of her school mate Munni Kumari about the occurrence. She has denied that she has adduced false evidence against the accused. She has denied that she fell at school and sustained injury. She has also stated that the accused entered his finger into her private part. She has described it as evil deed. She also stated that her father told her what to state before the Magistrate and before the Court. 9. PW 7, Dr. Jonali Gogoi has also stated that there was blood in vagina of ‘X’ and there was laceration at the lower part of the vaginal wall and vaginal bleeding is present and the hymen is absent. In her cross examination, the Medical Officer stated that such type of injury may be caused by falling against a hard substance. The evidence of the remaining witnesses are not that significant and will be referred to subsequently should the need arise. 10. The learned counsel for the appellant assailing the impugned judgment submitted that the date of the alleged occurrence is 16.03.2013, whereas the FIR was lodged four days later on 20.03.2013 and the victim was also medically examined on the said date of lodging of the FIR. This delay of four days has not been explained either in the FIR or in the evidence of the victim or that of the informant This aspect of delay in lodging the FIR gives rise to the possibility that the story of the informant is a concocted one. 11. In this regard, learned counsel has placed reliance on the decision of the Apex Court in the case of State of Himachal Pradesh Vs Gian Chand reported in 2001 Supreme (Standing Counsel) 814 wherein, it has been held as follows: Page No.# 5/8 “12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.” Therefore, in the absence of any acceptable explanation, the aforesaid delay is fatal to the prosecution, submits the learned counsel for the appellant. 12. It is further submitted that the victim was examined four days after the occurrence. Furthermore, the Medical Officer has also admitted during cross examination that the injury sustained by the victim can be caused by falling on a hard substance. 13. The learned counsel also submits that the version of the victim cannot be regarded as a gospel truth and has to be considered in the light of the surrounding circumstances. Therefore, the impugned judgment and sentence cannot be sustained and deserves to be set aside. 14. In this regard, learned counsel for the appellant has referred to the judgment of the Hon’ble Apex Court in the case of Rajoo & Ors Vs State of Madhya Pradesh reported in 2008 Supreme (SC) 1792 wherein, at paragraph nine, it has been observed that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence is at the spot is probable, but it can never be presumed that her statement should, without exception, be taken as the gospel truth. 15. Per contra, the learned Additional Public Prosecutor submits that the evidence of the victim has Page No.# 6/8 been consistent throughout from the point of her statement before the police, and the Magistrate, and her evidence before the Court. The prosecution during cross-examination could not shake the evidence of the victim or that of the informant in any manner other than by giving suggestions. As regards the aspect of alleged tutoring, it is pointed out by learned Additional Public Prosecutor that the victim is a girl of nine years of age and naturally, since she would not have much knowledge or idea of Court proceedings, her parents or guardian would tell her to speak on the incident before the Magistrate or the Court. But that itself does not mean that the incident as alleged never took place and that whatever the victim stated was on the basis of material provided by her parents/guardian. Moreover, the medical evidence clearly supports the allegation of the victim and therefore, there is nothing to disbelieve her testimony. Furthermore, although there was some delay in lodging the FIR because initially she was taken to the hospital when she complained of bleeding but the doctor at the civil hospital did not examine her upon coming to learn about the incident from the mouth of the victim. Therefore, it is not as if the father/informant waited for four days to take the victim to the hospital. It is only on the refusal of the doctor to examine her that and upon coming to know of the story that the informant was compelled to lodge the FIR. Moreover, no material could be brought on record by the accused/appellant has to why he would be falsely implicated by the victim/informant. In support of her submissions, the learned Additional Public Prosecutor, has relied upon the decision of the Apex Court in the case of State of Himachal Pradesh Vs Prem Singh reported in (2009) 1 SCC 420 wherein, it has been observed that a case of sexual assault, cannot be equated with other cases when the question of delay is to be considered. The learned additional PP has also relied upon the case of Munish Mubar Vs State of Haryana reported in (2012) 10 SCC 464 to submit that non-explanation by the accused/ appellant regarding the incriminating evidence against him, in his statement under Section 313 CrPC is a fact that points towards the guilt of the accused/appellant. Page No.# 7/8 16. A perusal of the evidence of PW3 reveals that she had stated in her evidence that she knows the informant and the accused and that on the day of the incident when she returned to her house from work, her mother told her that somebody committed rape upon the victim and accordingly, she went to the house of the informant. Thereafter, PW3, along with the father of the victim took the victim to Sanjeevani hospital but the treatment was refused. Later on, she was taken to Biswanath Charyali Civil hospital where she was given treatment. 17. Furthermore, a perusal of the FIR would show that the informant did state that the victim was taken to the hospital before lodging of the FIR where she was refused treatment. Although it is true that from the point of time when she was refused treatment till the lodging of the FIR, there still existed a gap of about three days, in the considered view of this Court, the same is not sufficient to form a view that the allegations of the victim are unfounded. This is because of the reason that no material has been brought on record to even remotely indicate any prior enmity between the accused/appellant and the informant, as would induce him to lodge an FIR containing false allegations of such a serious nature involving his minor daughter. The victim herself was aged about nine years old at the relevant time, and she would hardly have been aware of her sexuality, and it is quite unimaginable that she would falsely lodge allegations of such a nature against the accused/appellant. 18. Moreover, the medical evidence as discussed above fully supports the version of the victim and there is no basis for the submission that laceration in the vaginal wall as found by the Medical Officer could not have been detected four days after the incident, in the absence of any contrary medical evidence. Although, the Medical Officer has stated in the cross-examination that the injury may be caused by falling upon a hard substance, considering the situs of the injury, it is extremely unlikely that the same would have occurred by falling on any hard substance. 19. As rightly contended by learned Additional Public Prosecutor, the version of the victim could not Page No.# 8/8 be shaken in her cross-examination and the same is sufficient for the purpose of coming to a finding of guilt against the accused/appellant. 20. I also find force in the submission of the learned Additional Public Prosecutor that the evidence of the victim to the effect that she was told by her father what to state before the Magistrate, and the Court was nothing more than what the learned Additional Public Prosecutor had submitted as reflected herein before. The victim being a child of nine years at the time of the incident and about eleven years at the time of evidence, there is nothing unnatural in explaining to her what is to be stated before the Magistrate or the Court as a girl of such tender years would be quite clueless in this regard when she appeared before the Magistrate or the Court as to what to depose. 21. In the considered opinion of this Court, this does not discredit the evidence of the victim, nor does it nullify the existence of the facts as contained in the allegations against the accused/appellant. 22. For the aforesaid reasons, I do not find any merit in the instant appeal and accordingly, the same stands dismissed. 23. Send back the TCR. JUDGE Comparing Assistant