Page No.# 1/12 GAHC010170562023 2026:GAU-AS:13841-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl. A .293/2023 APURBA KALITA @ APU @ ANKUR KALITA S/O DIPAK KALITA, VILL.- HALOGAON, P.S.- HALOGAON, P.S.- SUAL KUCHI, DIST.- KAMRUP (ASSAM), PIN- 781103. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:LONGKESHWAR DAS S/O LT. BOHURAM DAS VILL.- RAMDEA KOMANTONA P.O.- MAJORKURI (RAMDIA KAMARTOLA) P.S.- HAJO DIST.- KAMRUP, ASSAM PIN- 781102 with Crl. A. (J) 89/2023 BIJIT KALITA @ CHOUDHURY S/O PRAFULLA KALITA VILL.- HALOGAON, P.S.- SUALKUCHI DIST.- KAMRUP, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P. ASSAM. 2:LANKESWAR DAS S/O LATE BAHURAM DAS VILL.- RAMDIYA KAMARTOLA P.S.- HAJO DIST.- KAMRUP ASSAM. Page No.# 2/12 For the Appellant in Crl. A. 293/2023 : Mr. M.U. Mondal, Advocate For the Appellant in Crl. A.(J) 89/2023 : Mr. P.K. Munir, Advocate For the Respondent No.1 in both the appeals : Mr. R.R. Kaushik, APP, Assam. For the Respondent No.2 in both the appeals : Mrs. P.B. Bordoloi (Legal Aid Counsel) - B E F O R E - HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE NCHUMBEMO MOZHUI Date of hearing : 17/09/2026 Date of Judgment : 17/09/2025 JUDGEMENT AND ORDER (ORAL) (Michael Zothankhuma, J) 1. Heard Mr. M. U. Mondal, learned counsel for the appellant in Crl. Appl. No. 293/2023, pertaining to the appellant Apurba Kalita. Also heard Mr. P. K. Munir, learned counsel for the appellant Bijit Kalita in Crl. Appl. (J) 89/2023. We have also heard Mr. R. R. Kaushik, learned Addl. PP for the State and Mrs. P. B. Bordoloi, learned Legal Aid Counsel for the respondent No. 2. 2. The appellant Bijit Kalita has been convicted for committing penetrative sexual assault against the victim, aged 17 years, under Section 4 of the POCSO Act, 2012 and has been sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.25,000/-, in default, simple imprisonment for 5 months, vide the impugned judgment dated 16.06.2023 passed by the learned Addl. Sessions Judge -cum- Special Judge (POCSO), Amingaon, Kamrup in Special (P) Case No.14/2016, Page No.# 3/12 3. The appellant Apurba Kalita, on the other hand, has been convicted under Section 17 of the POCSO Act, by the same impugned judgment, for having abetted the offence committed by the appellant Bijit Kalita. The appellant Apurba Kalita has thus been sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.25,000/-, in default, simple imprisonment for 5 months. 4. Both the appellants have made a challenge to the impugned judgment dated 16.06.2023 passed in Special (P) Case No.14/2016 by the above two appeal petitions. 5. The brief facts of the case is that an FIR dated 27.01.2015 was submitted by Prosecution Witness No.3 to the Officer-in-Charge, Hajo Police Station, stating that the appellants Apurba Kalita and Bijit Kalita had taken his 17 year old daughter (victim), on a motorcycle to an isolated place in Dampur village, where the appellant Bijit Kalita had raped her and left her unconscious. When the victim regained consciousness, she came to Dampur Janarpar Path, wherein the local people found her. It was also stated that the victim had been raped after being fed some intoxicating chocolate. Pursuant to the FIR, Hajo p.s. Case No.46/2015 under Section 4 of the POCSO Act was registered. 6. After the investigation was completed by the Investigating Officer (PW-11), charge sheet was submitted under Section 4 of the POCSO Act against both the appellants. The learned Trial Court thereafter framed two charges against the appellants under Sections 4 and 17 of the POCSO Act, which is reflected in the Page No.# 4/12 Trial Court’s order dated 08.11.2017, to which the appellants pleaded not guilty and claimed to be tried. It may be stated here that in the paper book, the charges framed against the appellants are shown to be Sections 8 and 17 of the POCSO Act, which is not in terms with the charges framed, as reflected in the Trial Court order dated 08.11.2017 in the order sheet. 7. The learned Trial Court thereafter examined 11 Prosecution Witnesses and 2 Defence Witnesses. After examination of the appellants under Section 313 Cr.PC, the learned Trial Court came to a finding that the appellant Bijit Kalita was guilty of having committed an offence punishable under Section 4 of the POCSO Act, while at the same time, it held that the appellant Apurba Kalita was guilty of having committed an offence punishable under Section 17 of the POCSO Act, which was relatable to offence committed by the appellant Bijit Kalita under Section 4 of the POCSO Act. 8. The appellants, being aggrieved by their conviction and sentence, have filed the 2 separate appeals. 9. We would like to first take up Crl. App. 293/2023, pertaining to the appellant Apurba Kalita, who has been convicted under Section 17 of the POCSO Act, for having abetted the offence committed by the appellant Bijit Kalita, punishable under Section 4 of the POCSO Act. 10. The entire case of the prosecution rests on the evidence of the victim, who Page No.# 5/12 stated in her testimony that on 27.01.2015, at around 2 p.m., she was going from her house to her friend's house, to invite them to the marriage ceremony of her sister. On the way, she saw two boys standing by the side of a motorcycle. On the request and persuasion of the two boys, she sat between them in the motorcycle and went for a ride. She was given a chocolate which she ate and which made her feel a little hazy and semi-unconscious. Thereafter, they went to the village Bongkhar where the boys purchased liquor. They started consuming liquor while riding the motorcycle and tried to administer some of it to her, which she refused. On reaching Dampur Chowk, the appellant Apurba Kalita got down from the motorcycle and the appellant Bijit Kalita thereafter continued taking her towards the western side, which was called Janarpar and to a paddy field. The appellant Bijit Kalita then gave the victim another chocolate and after consuming the same, the appellant Bijit Kalita removed her clothes and raped her. After she was raped, she saw the appellant Bijit Kalita was naked. When the victim tried to get away, the appellant Bijit Kalita slapped her on her cheeks and buttocks. Thereafter, the appellant Bijit Kalita raped her for a second time at the same place. Though she cried, nobody came to help her and blood was oozing out from her private parts. While putting on her dress, the appellant Bijit Kalita received a phone call, during which time the victim managed to run away. On reaching Dampur Chowk, villagers asked her as to what had happened and the victim then narrated the incident to them, due to which police came and took her to the Hajo Police Station. 11. Though the learned Addl. PP has tried to make out a case that the action of the appellant Apurba Kalita, in going with the victim and the appellant Bijit Kalita in a motorcycle till Dampur Chowk, proved that there was abetment on Page No.# 6/12 the part of the appellant Apurba Kalita, to the offence of penetrative sexual assault committed by the appellant Bijit Kalita, we are not convinced with the said submission. The learned Addl. PP has also tried to bring out a case that the giving of an intoxicating chocolate to the victim, which made her feel a little hazy and semi-unconscious, proved that the appellant Apurba Kalita’s ultimate intention was to help the appellant Bijit Kalita to rape the victim, is basically speculative in nature, given the fact that there is nothing in the testimony of the victim to the effect that she lost her senses or had lost control of her senses. In fact, as per her testimony, even after eating the first chocolate, the victim stayed near the motorcycle in Bonkhar Chowk, while the appellants purchased liquor. Though the victim refused to drink liquor, there is nothing indicative that the victim was against the appellant's drinking liquor. There is nothing stated by the victim to the effect that she asked the appellants to take her home. On the other hand, even after appellant Apurba Kalita had left the victim and appellant Bijit Kalita in Dampur Chowk, the appellant Bijit Kalita had taken her further along towards Janarpar where she was given another chocolate. There is nothing in the evidence/testimony of the victim that she became unconscious, or felt semi-unconscious, after having the second chocolate. As such, there is no proof that there was anything intoxicating in the chocolate that changed the senses of the victim. 12. The statement of the victim under Section 164 Cr.P.C is to the effect that two boys picked her up on a bike in a secluded place and after picking her up, they forcibly fed her a chocolate, due to which she became unconscious. When she regained consciousness, she found herself in an isolated place and heard them talking about the road to Bongkhar. They then took her mobile, bought Page No.# 7/12 liquor and drank it on the bike. Though they wanted to make her drink, she did not drink it. When she asked them to drop her at Dampur Chowk, they said that they would drop her at Dampur Chowk and fed her chocolate again. She lost her consciousness completely. When she regained consciousness, she found herself in the midst of a field with no clothes on her body, except her upper undergarment. She also saw the appellant Bijit Kalita naked. 13. The above statement of the victim under Section 164 Cr.P.C. is totally at variance with her testimony before the learned Trial Court. Nowhere had she stated in her testimony that she lost consciousness after eating the chocolate. On the other hand, in her 164 Cr.P.C statement, the victim has stated that she lost consciousness twice, each after eating chocolate. She has also kept silent in her Section 164 Cr.P.C. statement, with regard to where the appellant Apurba Kalita had left the company of the appellant Bijit Kalita and the victim. 14. In the case of R. Shaji Vs. State of Kerala, reported in (2013) 14 SCC 266, the Supreme Court has held that statements made under Section 164 Cr.P.C can be used for contradicting or corroborating the testimony of a witness. In the present case, the statement made under Section 164 Cr.P.C by the victim, does not corroborate the testimony of the victim. In fact, it contradicts the victim's testimony, wherein the victim's senses was not affected after eating the second chocolate, though, she has stated that she felt hazy and was semi unconscious after eating the first chocolate. 15. In any event, when the appellant Apurba Kalita had left the company of the victim and appellant Bijit Kalita at Dampur Chowk, we are of the view that Page No.# 8/12 the conditions required for proving that appellant Apurba Kalita had abetted the offence under Section 4 of the POCSO Act has not been proved, in terms of Section 16 of the POCSO Act. 16. For the reasons stated above, we are of the view that a case of abetment under Section 17 of the POCSO Act on the part of the appellant Apurba Kalita, in respect of the offence allegedly committed by the appellant Bijit Kalita under Section 4 of the POCSO Act is not made out, by giving him the benefit of doubt. Accordingly, the finding and conviction of the appellant Apurba Kalita by the learned Trial Court under Section 17 of the POCSO Act, is hereby set aside. Consequently, the impugned judgment dated 16.06.2023 and sentence passed by the learned Additional Sessions Judge-cum- Special Judge, POCSO, Amingaon, Kamrup, in Special POCSO case no. 14/2016, is hereby set aside, in so far as the appellant Apurba Kalita is concerned, in relation to Crl. App. No. 293/2023. The respondents are accordingly directed to release the appellant Apurba Kalita from judicial custody, if not wanted in any other case. 17. With regard to Criminal Appeal (J) 89/2023, the evidence of the victim is quite consistent, in so far as it relates to the appellant Bijit Kalita having committed the offence of penetrative sexual assault in terms of Section 3 of the POCSO Act, which is punishable under Section 4 of the POCSO Act. 18. The evidence of the Doctor (PW- 9) is to the effect that the victim’s hymen had old tears present at 6 O'clock and 9 O'clock positions. Further, on the basis of physical examination, the radiological and laboratory investigations done on the victim, the opinion of PW-9 was to the following effect:- Page No.# 9/12 “1. There is no evidence of recent sexual intercourse detected on her person at the time of examination. 2. No marks of violence was detected on her private parts at time of examination, however marks of violence on her body has been found and described in column no. 18. 3. Her age is above 16 (sixteen) years and below 18 (eighteen) years.” 19. Even though the Doctor's opinion, which is advisory in nature, is to the effect that there is no evidence of recent sexual intercourse detected on her at the time of her examination, we are of the view that the testimony of the victim appears to be truthful. Keeping in view the decision of the Supreme Court in the case of Lok Mal @ Loku Vs. the State of Uttar Pradesh, reported in (2025) 4 SCC 470, wherein it has been held that absence of injury marks in the medical evidence cannot be a reason to discard an otherwise reliable Prosecution evidence, as it is not necessary that there has to be an injury to the private parts in each rape case, it cannot be said that the victim had not been subjected to penetrative sexual assault/rape, only because there were no injury marks on her private parts. On the other hand, when the Doctor's evidence is to the effect that he saw marks of violence on the body of the victim, the same, in our view, corroborates the testimony of the victim that the appellant Bijit Kalita had slapped her cheeks and buttocks. 20. The above being said, the age of the victim has not been proved by the prosecution, inasmuch as, no birth certificate of the victim was seized by the Police and neither was any Admission Register of the school produced, to prove the age of the victim. The seizure list made by the police does not speak of any birth certificate of the victim being seized. On the other hand, the radiological Page No.# 10/12 report, within which comes an ossification test, shows that the age of the victim was above 16 years and below 18 years. 21. The report of the radiological investigation at Para 24 of Exhibit 2, which is the medical report, states as follows:- “24. Report of Radiological investigations: Skiagram No.: ®15 Date: 31/1/15 a. X Ray wrist, shoulder, and pelvic bones epiphyseal union of bones are not completed. b. X Ray elbow joint -. epiphyseal union of bones are completed. However according to our opinion shoulder joint epiphyseal union is completed.” 22. In the case of Yuvaprakash vs. State of TM, reported in (2024) 17 SCC 684, the Supreme Court has held that in the absence of the birth certificate issued by the Corporation or Municipal Authority or Panchayat or the School or the Board, in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the prosecution would require to prove the victim’s age on the basis of an ossification test. As the ossification test is not a full proof method for determining the exact age of a child with conflict or the victim, the benefit +/- 2 years would have to be given to the age determination, on the basis of the ossification test, to the child in conflict with law or to the victim, depending upon the facts of each case. Page No.# 11/12 This is due to the fact that when there are two views available from the evidence on record, the Court should lean in favour of the accused. 23. Now applying the decision of the Supreme Court in Yuvaprakash (supra) and keeping in view that another 2 years are to be added to the age of the victim, determined on the basis of the radiological/ossification test, it can be said that the age of the victim was above 18 years, at the time of the incident. 24. In view of the above reasons, there could not have been any conviction of the appellant Bijit Kalita under the POCSO Act, 2012, as the said Act is applicable only with respect to sexual assault cases, pertaining to victims below 18 years of age. 25. In that view of the matter, the conviction and sentence of the appellant Bijit Kalita under Section 4 of the POCSO Act by the learned Trial Court is not sustainable in law and the same has to be set aside. 26. The victim being an adult and there being a prima facie case of rape being made out by the victim against the appellant Bijit Kalita, we are of the view that the appellant Bijit Kalita may be proceeded against under Section 376 IPC. Accordingly, the charge framed under Section 4 of the POCSO Act against the appellant Bijit Kalita, may have to be altered in terms of Section 216 Cr.P.C to Section 376 IPC. 27. In view of the reasons stated above, the matter is remanded back to the learned Trial Court, for considering framing of charge against the appellant Bijit Page No.# 12/12 Kalita under Section 376 IPC. Thereafter, if the learned Trial Court is of the view that charge should be framed under Section 376 IPC, the provision of Section 217 Cr.PC would have to be followed. If the charge is altered to Section 376 IPC, the testimony of all the prosecution and defence witnesses, which have already been recorded, will continue to form a part of the record and shall be considered at the time of final hearing of the case, along with any additional evidence recorded, by recalling some or all the witnesses, as required. 28. For the reasons stated above, we set aside the impugned judgment dated 16.06.2023, passed by the learned Addl. Sessions Judge -cum- Special Judge (POCSO), Amingaon, Kamrup in Special (P) Case No.14/2016 in respect of the present Crl. App.(J) 89/2023 also. The issue of grant of bail shall be the discretion of the learned Trial Court. 29. Send back the TCR. 30. In appreciation of the assistance rendered by the learned Legal Aid Counsel, her fees should be paid by the Gauhati High Court Legal Services Committee as per norms. 31. The appeals are accordingly disposed of. JUDGE JUDGE Comparing Assistant