Page No.# 1/16 GAHC010131542024 2026:GAU-AS:13964 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./232/2024 SAFIUR ALI @ SOFIOR ALI S/O LATE MAJIBUR ALI, R/O KHARMUJA UJANPARA, P.S.- GOALPARA, DIST.- GOALPARA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY P.P., ASSAM. 2:BASANTI KARMAKAR W/O SUNIL KARMAKAR VILL.- NO. 2 MATHGHARIA P.O.- NOONMATI P.S.- NOONMATI DIST.- KAMRUP METRO ASSAM PIN- 781020 Advocate for the Petitioner : MR. N UDDIN, MR S K CHHETRY,MR. M ISLAM,MR. M HOQUE Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA Date on which judgment is reserved : 21.05.2026 Date of pronouncement of judgment : 22.09.2026 Page No.# 2/16 Whether the pronouncement is of the : N/A. operative part of the judgment? Whether the full judgment has been : Yes. pronounced? JUDGMENT & ORDER (C AV ) Heard Mr. N. Uddin, learned counsel for the appellant. Also heard Mr. P.S. Lahkar, learned Addl. Public Prosecutor, Assam appearing for the State respondent No.1. None is present for the informant/respondent No.2. 2. This appeal has been filed under Section 374 of the CrPC, challenging the judgment and order dated 13.05.2024, passed by the learned Additional Sessions Judge (FTC), No. 4, Kamrup (Metro) at Guwahati, in connection with Sessions Case No. 50/2019, convicting the accused/appellant under Section 366 of the IPC, to undergo Rigorous Imprisonment for 5 (five) years with fine of Rs. 5,000/- and under Section 376 (1) IPC, to undergo Rigorous Imprisonment for 7 (seven) years and to pay fine of Rs. 10,000/- with default stipulation. 3. It is the case of the prosecution that on 29.06.2005, the informant Smti Basanti Karmakar lodged an FIR before the Noonmati P.S. alleging inter alia that on 28.06.2005, the informant’s daughter went to appear in her school examination in Noonmati High School and thereafter she did not return home. Later on the informant came to know from the friend of her daughter that the informant’s daughter ‘X’ was being kidnapped by the appellant in a silver Page No.# 3/16 coloured Indica car. On the basis of the FIR, the officer-in-charge of the Noonmati P.S. had registered a case vide Noonmati P.S. Case No.161/2005, under Section 366 of the IPC and investigated the same. During the investigation, the victim was recovered by her parents with the help of Goalpara Police. Thereafter she was medically examined and her statement was also recorded under Section 164 of the CrPC and after completion of investigation, the case was charge sheeted against the accused appellant under Section 366A of the IPC. 4. Cognizance of the case was also taken under the said section of law and on appearance of the accused appellant, charge was framed under Section 366A of the IPC, the charge was read over and explained to him to which he pleaded not guilty and claimed to be tried. Though the charge was initially framed under Section 366A of the IPC against the accused appellant but after recording examination in chief of the victim girl, the charge was altered and Section 376(2)(i) of the IPC is also framed against the accused appellant, to which he pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined as many as six number of witnesses including the informant, the victim and the investigating officers but the accused appellant did not adduce any evidence to substantiate his plea of innocence and he simply pleaded not guilty at the time of recording his statement under Section 313 of the CrPC. 6. Hearing the submissions made by the learned counsel for both sides, the leaned Trial Court had passed the order of conviction, whereby the accused appellant was convicted under Sections 366/376(1) of the IPC. Page No.# 4/16 7. Being aggrieved and dissatisfied with the judgment and order passed by the learned Additional Sessions Judge (FTC), No. 4, Kamrup (Metro) at Guwahati, the present appeal has been preferred by the accused appellant. 8. It is submitted by Mr. N. Uddin, the learned counsel for the accused appellant that the learned Trial Court committed error and mistake while passing the order of conviction and the judgment was passed without appreciating the evidence on record in its true perspective. He further submitted that the learned Sessions Judge had ignored serious contradictions and inconsistencies in the deposition of the prosecution witnesses and thus, erroneously come to a conclusion and convicted the accused appellant. The learned Session Judge had failed to appreciate the fact that the prosecution had measurably failed to prove the case beyond reasonable doubt against the accused appellant and as such the order of conviction is liable to be set aside and quashed. 9. It is further submitted by the learned counsel for the accused appellant that the conviction is based solely on the deposition of the PW.1/the victim of the case and the evidence of the other witnesses are also hearsay evidence as well as family members of the victim. The prosecution also failed to examine the Medical Officer, though the accused appellant was convicted under Section 376 of the IPC. More so, the statement of the victim is not consistent as in her statement made under Section 161 of the CrPC, she did not state that she was raped by the accused appellant. But while giving her statement under Section 164 of the CrPC as well as at the time of adducing her evidence, she brought the allegation of rape against the accused appellant. Thus the contradictory statements of the victim herself create reasonable doubt in the veracity of the prosecution case. Page No.# 5/16 10. Mr. Uddin, the learned counsel for the accused appellant also submitted that as per the PW.2/the mother of the victim, she heard about the kidnapping her daughter/victim from the friend of her daughter who saw the incident but surprisingly, the prosecution did not examine the friend of the victim, namely, one Bobita/Kabita who could have the best witness in support of the prosecution case. Further, the prosecution failed to examine any other independent witness except the parents i.e. the mother and the father of the victim and the victim herself and the other witnesses i.e. PW.4, PW.5 and PW.6 are the investigation officers of this case. That apart, the prosecution also failed to examine the Medical Officer who is also one of the vital witnesses of the prosecution. 11. Mr. Uddin, the learned counsel for the accused appellant further submitted that though the order of conviction was passed under Section 366(1) of the IPC, the prosecution could not prove the age of the victim and the school certificate also could not be exhibited by the prosecution to prove the age of the victim. According to the learned counsel for the accused appellant, the victim was a major girl at the relevant time of incident and that aspect is also not considered by the learned Sessions Judge while passing the impugned order of conviction. Mr. Uddin accordingly submitted that this is a fit case wherein the accused appellant is entitled for acquittal by setting aside and quashing the judgment and order dated 13.05.2024, passed by the learned Additional Sessions Judge (FTC), No. 4, Kamrup (Metro) at Guwahati, in connection with Sessions Case No. 50/2019. 12. Mr. Uddin, the learned counsel for the accused appellant further submitted that when there is two views and if one view goes for the benefit of the accused Page No.# 6/16 person, the Court is to take/adopt the view which is favourable to the accused person. In the instant case also, the prosecution could not establish the case against the accused appellant beyond all reasonable doubt and hence, the benefit of doubt goes in favour of the appellant. In that context, Mr. Uddin, the learned counsel relied on a decision of the Hon’ble Apex Court in the case of Kali Ram vs. State of Himachal Pradesh reported in (1973) 2 SCC 808 and basically emphasized on para 25 of the said judgment, which reads as under: “25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh,(') a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.”. 13. Mr. Uddin, the learned counsel submitted that the prosecution could not prove the school/birth certificate of the victim to consider that at the relevant time she was a minor. He also relied on the decision of the Hon’ble Apex Court in the case of Alamelu and another vs. State (Represented by Inspector of Police) reported in (2011) 2 SCC 385 and relied upon paras 39 & 40 of the said Page No.# 7/16 judgment, which read as under: “39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5. 40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined”. 14. Mr. P.S. Lahkar, learned Addl. Public Prosecutor, Assam appearing for the State respondent No.1 submitted that the most reliable witnesses of the present case is the victim herself and her statement remains consistent and hence, there is nothing to disbelieve the evidence of the victim. Admittedly there is no eye witnesses to the prosecution case but the mother/PW.2 had lodged the FIR when the victim was found missing. Mr. Lahkar further submitted that it reveals from the record that after the recovery of the victim, she was directly sent for recording her statement under Section 164 of the CrPC and thus, there cannot be any possibility of tutoring her before recording her statement under Section 164 of the CrPC. He further submitted that there is no material discrepancy in the statement made by the victim recorded under Section 164 of the CrPC as well as while adducing her evidence before the Court. 15. In a case of rape, the sole testimony of the victim/prosecutrix may be sufficient for conviction if she is found believable and trustworthy. A certificate is also issued by the School wherein the victim was pursuing her studies and hence, it can be accepted and from the school certificate also it is seen that the Page No.# 8/16 victim was minor at the relevant time of incident. Mr. Lahkar, the learned Addl. Public Prosecutor, Assam also relied on the decision of State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC 384. Accordingly, he submitted that there is no need of any interference in the judgment and order passed by the learned Sessions Judge, which has been passed after proper appreciation of evidence on record. 16. Before discussion of the other details of the case, let us first scrutinize the evidence on record adduced by the prosecution witnesses. 17. PW.2 is the informant of the case who stated in her evidence that the victim is her daughter. On the date of occurrence, her daughter went to school to attend her examination and on way to the school, the accused person kidnapped the victim in a car. When the victim did not return till the evening, she lodged the FIR in Noonmati Police Station. Later the police of Goalpara recovered the victim from the house of the accused person and they were also accompanied the police at the time of recovery of the victim. She also deposed that the victim/her daughter stated before her that the accused committed rape on her daughter for two days by threatening her. From her cross-evidence it is seen that she is not a literate woman and put her thumb impression in the FIR. However, she stated that in the FIR she mentioned that she came to know about the incident from one friend of her daughter, namely, Bobita that her daughter was kidnapped by the accused in a silver coloured indica car and during that relevant period of time, said friend of her daughter also accompanied her as they went to appear in the examination. From her cross- evidence it revealed that she did not state before the police that the accused committed rape on her daughter by threatening her. The PW.2 also denied the Page No.# 9/16 suggestion that her daughter went to the house of the accused as they had good relation with the accused person. She also denied the suggestion that the Exhibit No.2 (the birth certificate of the victim) is a forged document. 18. PW.1 is the victim of this case who deposed that in the year 2005, she was reading in Class VII and on the day of incident, she was going to school when one four wheeler vehicle came and took her into it. The accused took her to Goalpara and there, she was in the house of the accused person about four days, when the accused also committed rape on her. Subsequently, with the help of police, her parents rescued her from the house of the accused. She also deposed that the police took her for medical examination and her statement was also recorded under Section 164 CrPC. During the relevant period of time, her age was 13/14 years and she also exhibited her statement recorded under Section 164 CrPC as Exhibit No.1 and Exhibit No.2 is the school certificate. From her cross-evidence, it is seen that she did not raise any hue and cry when she was taken in the car by the accused. It also reveals that when she given her statement before the I.O. under Section 161 CrPC, she stated that she was kept in the house of parents of the accused. However, she denied that she had a good relationship with the family of the accused and her parents lodged a false case against the accused, though the accused did not rape on her. 19. PW.3 is the father of the victim who also narrated the same story corroborating the PW.2. He also deposed that their daughter was recovered from the house of the accused and at that time, they tried to assault the parents of the victim when they went for recovery of their daughter. In the house of the accused, his daughter was wearing sari, though she was a girl of 15 years old and was reading in Class-VI/VII. But contradicting his own Page No.# 10/16 statement, the PW.3 stated in his cross-evidence that they used to reside in the same area as tenants and during that relevant period of time, the PW.3 was working as a driver and the accused was also working as the conductor/handyman. 20. PW.4 is the I.O. of the case and he deposed that at the relevant time of incident he was attached in the Noonmati Police Station and when the Officer- in-Charge of the police station had received the FIR of the case lodged by the PW.2, he was entrusted with investigation of the case. On the same day, he visited the place of occurrence, recorded the statement of the witnesses including the complainant and her husband and one of the friend of the victim. He also drawn the sketch map of the place of occurrence and on 05.07.2005, he sent one S.I. of police, namely, Arfan Ali to Goalpara for search of the victim in the house of the accused. But the accused could not be found in his house and only the victim could be recovered from the house of the accused. The victim was then brought to the police station, her statement was recorded under Section 161 CrPC, she was sent for medical examination and her statement was also recorded under Section 164 CrPC by the Magistrate. After the preliminary investigation of the case, he got his transfer order and hence, handed over the case diary to the Officer-in-Charge of the concerned police station. From his cross-evidence it is seen that the victim has not stated to him that the accused committed rape on her, while statement was recorded under Section 161 CrPC. He further stated that the victim stated before him that while she was coming out from the house of her friend Bobita, some persons came in an indica car, gagged her mouth and forcibly put her inside the vehicle. But during the investigation, he could not find out the other 2/3 persons accompanied the accused person at the time of incident. He also did not seize any birth certificate Page No.# 11/16 of the victim during investigation. However, the victim stated before him that she knew the accused prior to the incident and there was a good relationship between them. Both the PW.2 and PW.3 i.e. the mother and the father of the victim also did not say anything about the rape before the PW.4, while recording their statements under Section 161 CrPC. 21. PW.5 is another of the I.O. of the case who conducted the later part of the investigation and submitted the charge sheet on the basis of the investigation done by the PW.4. He submitted the charge sheet against the accused under Section 366A of the IPC and accordingly, exhibited the charge sheet as Exhibit No.3. 22. PW.6 had also entrusted with the investigation of the case after the transfer of PW.4 but he did not investigate the case and not even collected the statement under Section 164 CrPC, as he also got his transfer order and handed over the case diary to the Officer-in-Charge of the concerned police station. 23. So from the testimonies of the prosecution witnesses, it is seen that the PW.2 and the PW.3 i.e. the parents of the victim have not seen the occurrence while the accused kidnapped/abducted the victim girl in a four wheeler vehicle. But the matter was reported to the PW.2/mother of the victim by one Bobita who is the friend of the victim who saw the accused person while abducting the girl in an indica car and accordingly, she reported. But the prosecution failed to examine the only eye witness to the prosecution case i.e. said Bobita in support of the case of the prosecution. However, from the record it reveals that the prosecution tried to procure the attendance of said eye witness Bobita but she could not be located and thus, she could not be examined by the prosecution. Page No.# 12/16 So at the present stage, there is no eye witness to the prosecution case and it is the only the victim who alleged that she was taken in a four wheeler vehicle by the accused along with 2/3 other persons. But during the investigation, the I.O. could not even collect the name and address of the other two persons, who accompanied the accused in the car at the relevant time of incident. 24. So as per the allegation, the victim/PW.1 was kidnapped by the accused/appellant and took her to his village at Goalpara and she was confined there for four days in his house. She was also recovered from the house of the accused/appellant and her father also accompanied the police personnel to the house of the accused/appellant, wherefrom she was recovered. 25. It is well settled that a conviction can be based on the sole evidence of the prosecutrix, if it is found to be reliable and trustworthy. But here in the instant case, it is seen that the PW.2 had made some contradictory statements before the I.O. and while adducing her evidence before the Court. She did not disclose anything in regards to commission of rape on her while she was along with the accused in his house at the time of giving her statement under Section 161 CrPC. However, it is a fact that while giving her statement under Section 164 CrPC, she brought the allegation of rape and stated that one night she stayed with the accused and on that night he committed rape on her. The PW.2 also brought the allegation that she could not shout while she was taking to Goalpara, as the accused/ appellant had threatened her but surprisingly, while adducing her evidence before the learned Additional Sessions Judge (FTC), No. 4, Kamrup (Metro) at Guwahati, she did not utter anything as to how she was taken or as to whether she made any hue and cry at that time. Rather, from her Page No.# 13/16 cross- evidence it is seen that she did not raise any alarm while she was taken in the car to Goalpara nor she brought any allegation that due to threatening of the accused appellant, she could not raise any alarm. 26. Thus it is seen that the victim herself made the contradictory statement in three stages while adducing her evidence as well as giving her statement under Section 161 and 164 CrPC. Thus the victim also cannot be considered as a starling witness to consider her evidence as reliable and trustworthy. Coming to the evidence of the other prosecution witnesses i.e. the PW.2/mother and the PW.3/father of the victim, it is seen that the PW.2 denied in her evidence that the accused was known to her prior to the incident and she also denied that the accused had no-relationship with her husband and she never knew him prior to the incident. But the PW.3/the father of the victim had categorically stated in his cross-evidence that the accused appellant and the informant’s family used to reside in the same campus as tenants and the accused was working as a handyman/conductor, while the PW.3 was working as a driver. More so, the PW.3 initially denied in his evidence in chief that he knew the accused but in his cross-evidence, contradicting his own statement and the statement of the PW.2, he admitted that accused was known to his family prior to the incident. Thus it is seen that both the PW.2 and PW.3, the only supporting witness of the prosecution case also made some contradictory statements shaking the root of the prosecution case and thus, there arises sufficient doubt in regards to the veracity of the prosecution case. 27. Initially the case was registered under Section 366A of the IPC and the charge sheet was also accordingly filed under the said section of law, as the Page No.# 14/16 victim did not brought any allegation of sexual assault on her during the time of investigation. But after recording the evidence of the victim, the learned Additional Sessions Judge (FTC), No. 4, Kamrup (Metro) at Guwahati had additionally charged the accused under Section 376(2)(i) of the IPC. But from the record, it is seen that the I.O. could not even collect the medical examination report of the victim, who was sent for medical examination immediately after her recovery from the house of the accused appellant. 28. Thus it is seen that there is no supporting medical evidence to substantiate the plea of the prosecution that the victim was raped by the accused appellant. It is a settled position of law that the medical evidence may not be considered as conclusive evidence and the conviction can also be based on the ocular evidence of the prosecutrix/witnesses. But here in the instant case, it is seen that the prosecution not even tried to bring the medical documents, though the victim was stated to be a minor girl who was allegedly subjected to sexual assault. More so, from the discussions made above, it is seen that the evidence of the prosecutrix cannot be considered as a starling witness to pass the order of conviction only on the basis of her sole evidence. Further, it is the case of the prosecution that the mother of the victim came to know about the incident of kidnapping from one Bobita (friend of the victim), who was present along with the victim at relevant point of time when she was abducted. But as stated above, the prosecution could not examine the only eye witness, namely, Bobita in support of its case. That apart, the victim also contradicted at this point where she claimed that she was alone at the time when the accused/appellant had kidnapped her in a four wheeler vehicle, which contradicts the case of the prosecution wherein the mother only came to know about the incident from her Page No.# 15/16 friend Bobita who was also present at that time along with the prosecutrix. 29. The Hon’ble Apex Court in the case of Brahm Swaroop and others vs. State of U.P., reported in (2011) 6 SCC 288, had held that it is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution’s case, may not prompt the Court to reject the evidence in its entirety. But here in the instant case, the discrepancies which have been found in the prosecution case cannot be considered as minor discrepancies. Rather, it raises reasonable doubt in the veracity of the prosecution case. 30. From the record and overall discussion, it is also seen that the prosecution failed to prove the case beyond all reasonable doubt that the accused had kidnapped the minor girl of the informant and committed sexual assault on her to warrant conviction against him under Section 366 read with Section 376 (1) of the IPC. 31. Accordingly the impugned judgment and order dated 13.05.2024, passed by the learned Additional Sessions Judge (FTC), No. 4, Kamrup (Metro) at Guwahati, in connection with Sessions Case No. 50/2019, convicting the accused/appellant under Section 366 read with Section 376 (1) of the IPC, is hereby set aside and quashed. 32. The appeal is allowed and the appellant is acquitted and set at liberty and the Jail Authority is hereby directed to release him forthwith, if not warranted in any other case. Page No.# 16/16 33. Send back the TCR immediately with a copy of this judgment to the learned Trial Court and to the Superintendent of concerned Jail Authority. JUDGE Comparing Assistant Manoranja n Barman Digitally signed by Manoranjan Barman DN: c=IN, o=Personal, postalCode=781353, l=Nalbari, st=Assam, street=12/190 GOPALBAZAR, Sandheli, Pachim Nalbari Assam India 781353 NEAR GOPAL THAN, title=2306, 2.5.4.20=29db4acf51a76f18a8b02da116d99d9a 830067d0e1ee9ade3211eba147de7638, serialNumber=f62c6d212ff0a19bb91eb2be0de 18d2d5675f8515740ee4f44960ef878267138, email=barmanm1974@gmail.com, cn=Manoranjan Barman Date: 2026.09.22 12:13:49 +05'30'