Page No.# 1/16 GAHC010039332023 2026:GAU-AS:7248- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./67/2023 HITESH BARMAN S/O SWATI BARMAN, R/O DOLOIGAON, BHATIPARA, P.S. AND DIST.- BONGAIGAON, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY P.P., ASSAM. 2:KALPANA GHOSH W/O CHITU GHOSH VILL.- BHAKARIVITA P.O.- BHAKARIVITA P.S. AND DIST.- BONGAIGAON ASSAM PIN- 783380 For the appellant : Mr. M.U. Mahmud, Adv. For the respondents : Ms. B. Bhuyan, Addl. P.P. Ms. Marami Pathak, Amicus Curiae (R/2) BEFORE HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Date on which judgment is reserved : 21/05/2026 Date of pronouncement of judgment : 26/05/2026 Page No.# 2/16 Whether the pronouncement is of the : No operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT AND ORDER (CAV) (Michael Zothankhuma, J) 1. Heard Mr. M. U. Mahmud, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Addl. PP for the State and Ms. Marami Pathak, learned counsel for the respondent No. 2 2. This appeal is against the impugned judgment dated 10.01.2023 passed by the learned Special Judge, Bongaigaon, in Special (P) Case No. 13(BGN)/2020, by which the appellant has been convicted under Section 376 (3) IPC read with Section 4 of the POCSO Act. However, the appellant has been sentenced under Section 376(3) IPC in view of Section 42 of the POCSO Act to undergo rigorous imprisonment for 20 years with a fine of Rs.20,000/-, in default, simple imprisonment for one year. 3. The appellant’s counsel submits that there is a major contradiction in the testimony of the victim (PW-3), when compared with the statement given by the victim under Section 161 Cr.PC. He submits that the victim in her testimony before the learned Trial Court has stated that the appellant had sexual intercourse with her. However, in the victim’s statement under Section 164 Cr.PC, the victim has stated that the appellant had committed “bad act” upon her and had clarified the same by stating that the appellant touched her chest, vagina and used to insert his finger. He submits that the statement of the victim Page No.# 3/16 under Section 164 Cr.PC contradicts the evidence of the victim. 4. Ms. Marami Pathak, learned counsel for the respondent No. 2 submits that sexual intercourse and inserting a finger into the private parts of the victim girl amounts to the same thing in terms of Section 3 of the POCSO Act. She submits that the work “bad act” used by the victim girl in her Section 164 Cr.PC statement includes sexual intercourse. She also submits that even if the sole testimony of the victim girl is not found sufficient by this Court, to prove that the victim had been subjected to penetrative sexual assault by way of sexual intercourse, the evidence of the doctor, who had stated that the hymen of the victim was torn, corroborated the evidence of the victim girl that there had been aggravated penetrative sexual assault. 5. Ms. B. Bhuyan, learned APP submits that the use of the word “bad act” by the victim in her statement made under section 164 Cr.P.C, includes within its fold “sexual intercourse”. She further submits that the evidence of the victim girl stating that the appellant had sexual intercourse with her, clearly proved that there was no contradiction or major discrepancy with her statement made under section 164 Cr. PC. The learned APP also submits that the testimony of the victim has not been demolished or shaken during cross examination. The learned APP also submits that the use of the word “bad act” has been taken to mean rape/sexual intercourse by this court in the case of Basir Uddin v. State of Assam and others (Criminal Appeal 49/2020) and Santosh Tanti Vs. State of Assam and others (Criminal Appeal(J) No. 74/2022) and the Punjab and Haryana High Court in the case of State of Haryana Vs. Anil Kumar (Criminal Appeal No. 610-DBA of 1995). The learned APP also submits that in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, reported in (1983) 3 SCC 217, the Supreme Court has held that in the Indian setting, refusal to act on the testimony of a victim of sexual assault, Page No.# 4/16 in the absence of corroboration as a rule, is adding insult to injury. The Supreme Court further held that rarely would a girl or a woman in India make a false allegation of sexual assault. The statement of a victim is generally true in the context of the urban as also rural societies. 6. We have heard the counsels for the parties. 7. In the present case, the victim in her statement made under section 164 Cr.PC, has stated that the appellant had committed a “bad act” on her whenever he visited her house. The same has been clarified by the victim when she says that the appellant used to touch her chest, vagina and used to insert his finger. There is nothing in the statement of the victim under section 164 Cr.P.C. to interpret her statement to mean that she had been subjected to sexual intercourse by the appellant. 8. The statement of the victim under section 164 Cr.P.C. is reproduced herein below as follows :- “On Oath, My name is Priyanka Chanda. I am 13 years old. It has been about 2 years since the death of my father. After the death of my father, Hitesh Barman started to visit our house and also used to commit bad act on my mother. I heard the same. Hitesh also committed bad act on me. Whenever he visited our house in absence of other members of our family, he used to touch my chest, my vagina and used to insert his finger. He threatened to assault/kill me, if I disclose anything to other people. Being unable to bear, I informed my elder sister Kalpana. I have to say this much only.” 9. On the other hand, the testimony of the victim before the learned Trial Court, which was recorded on 01/02/2022, is to the effect that after the death of her father, the appellant used to stay in their house and take meals with them. Further, Page No.# 5/16 her mother and the appellant used to sleep on the same bed. She further stated that on the day of Christmas at about 12.30 p.m., while she was sleeping on the same bed as her mother and the appellant, the appellant had forcefully committed sexual intercourse with her. Though she raised an objection, the appellant did not listen to her. The victim also stated that the appellant used to have sexual intercourse with her mother and she witnessed the same. She also stated that when they were sleeping, the appellant used to touch her breasts. She also stated that the appellant used to have sexual intercourse with her prior to the incident on Christmas day. The victim also stated in her testimony that the appellant had a love affair with her mother. Her father knew about the said love affair and as he could not bear the same, he died at a young age. 10. The victim also stated that when she told her mother and the appellant that she would report the matter of the appellant having sexual intercourse with her, the appellant assaulted her. The victim also stated that after the occurrence, i.e. on the day after Christmas after the forceful intercourse occurred, she reported the matter to her elder sister while she took shelter in the house of another elder sister. After that the victim stayed with her elder sister. 11. The relevant portion of the cross-examination of the victim is reproduced hereinbelow, as follows : “During cross-examination victim deposed that the land on which their house was situated belongs to the mother of her mother. She was staying in that house since her childhood. The age of her elder sister is 26 years and she is the youngest. There are two tenanted house near their house. There are two roads near their house. There is a road on the backside of their house through which vehicle may enter. Accused Hitesh is a driver. He was not a tenant at their house. He stayed near their house with his wife. Accused was present at the Page No.# 6/16 time of marriage of her two elder sisters. Accused used to come to their house to help in their domestic matter like taking her to school, bringing cylinder etc. He was also handed over one key of their house. Son of Hitesh Barman studied at Elbert English Medium School and he attended the school from their house. On 15-08-2019 wife of accused Hitesh Barman eloped with another boy. On 24- 12-2019 she went to Barpeta with her mother by Shifung Express. In the year 2018 Malabika got married and she lived at Barpeta. At the time of marriage of her sister Malabika her mother sold 15 lechas of land for the purpose of marriage. Her mother returned leaving her at the house of her sister at Barpeta. She talked with her mother from Barpeta. From Barpet she directly went to the house of her elder sister Kalpana Ghosh. On 30-12-2019 she was at the house of her elder sister and on the next day Kalpana with some other persons went to the house of their mother. She reported the fact of sexual intercourse with her after the occurrence to her elder sister. She reported the matter of sexual intercourse to her elder sister prior to 30-12-2019 also.” 12. The I.O.(PW-11) in his cross-examination disclosed that the victim did not state before him that after death of their father, the accused stayed at their house with their mother or that he and her mother slept in a bed and on that day, he touched her breast or that the accused had sexual intercourse with her for 4/5 days and that she witnessed the sexual intercourse of her mother and the accused or that her father could not bear the incident and so that he died at a young age. 13. As can be seen from the testimony of the victim, nothing has been mentioned by her with regard to the appellant inserting his finger into her vagina or touching her vagina. The victim has also not used the word “bad act” in her testimony given before the learned Trial Court. 14. On considering the fact that the victim had already clarified the use of the Page No.# 7/16 word “bad act” to mean touching of her breast and vagina and insertion of the finger into the vagina, in her statement under section 164 Cr. PC, we are of the view that the victim's testimony that she had been forced to have sexual intercourse without making a mention of the touching of the vagina and the insertion of the finger into her vagina, appears to be an afterthought, especially when she has not used the word “bad act” in her testimony. 15. In the case of Basir Uddin (Supra), this Court had taken the testimony of the victim, who said in her evidence that the accused had done “bad acts” upon her, to mean that she had been raped. This was due to the fact that the victim had given a clarification to the word “bad act”, by stating that the boys had forcefully taken her inside the jungle and one held her by her legs, while another one gagged her. The third boy then committed rape upon her and in this manner, one by one, all the boys raped her. The above facts clearly go to show that in the case of Basir Uddin (Supra), the victim therein had also clarified the use of the word “bad acts”, by the saying rape had been committed. 16. In the case of Santosh Tanti (Supra), this Court was again to consider the use of the word “bad act” committed on the daughter of the PW-4 therein. The evidence of the victim (PW-7) in Santosh Tanti (Supra), was to the following effect :- “According to PW-7, the accused came to the house at about 03-00 p.m. and committed bad act with her. The accused laid her on the bed and removed her wearing apparels upto her chest. The accused opened her pant and also lifted her upper garment. The accused then unzipped his pant and inserted his penis into her place of urination.” Here also, there is a clarification of the word “bad act.” 17. In the case of Anil Kumar (Supra), the Punjab and Haryana High Court held that the victim’s statement that the accused had committed “bad acts” with her was Page No.# 8/16 sufficient to prove the ingredients of rape. The Punjab & Haryana High Court held that the Trial Court’s finding, that the statement of the victim that the accused had committed “bad acts” did not prove the commission of rape, was contrary to the law laid down by the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai (Supra). 18. On a close reading of the judgment in Anil Kumar (Supra), we find that the victim had testified that the accused used to remove her clothes and committed “bad acts” with her. Thus, the removal of the clothes of the victim occurred prior to the bad acts. The Punjab & Haryana High Court had held that the use of the word “bad acts” by the victim proved that the ingredients of rape were present. Here also, we find the event leading upto the ‘bad act’ is the removal of clothes. Though it can be inferred that the ‘bad act’, after removal of the victim’s clothes, meant rape, we are not fully convinced with the correctness of the said inference. The removal of clothes could lead to touching or kissing the various parts of the body. When the crime is serious and the punishment is severe, the Prosecution has to ensure that the illegal act should be explained or stated, as near as possible, so that there cannot be two or three different views, inferences or implications in respect of the said act. Otherwise, an accused may be convicted for an offence he did not commit. As such, we doubt the correctness of the inference made by the Punjab and Haryana High Court that ‘bad act’ proved the ingredients of rape. 19. We are of the view that the word ‘bad act’ by itself does not automatically connote that sexual intercourse or rape had taken place. The word ‘bad act’ has to be seen with other attending facts and circumstances. Though the said words ‘bad act’ and ‘bad deed’ leans towards an inference that rape or sexual intercourse had taken place, it cannot be said with certainty that rape or sexual intercourse had taken place. The word ‘bad act’ could also mean touching or inserting something else into the private parts of a victim other than the penis. It could also be with regard to the victim Page No.# 9/16 being made to touch the private parts of the accused. Thus, unless the word ‘bad act’ is clarified, the word can have a host of meanings. Unless there is clarification of the word ‘bad act’, the exact deed done to the victim is left open-ended and is not decisive of which illegal act has been inflicted upon the victim. In the present case, the ‘bad act’ stated in the victim's Section 164 Cr.P.C statement has been clarified to be touching of breast, vagina and insertion of finger into the vagina. 20. As can be seen from the decisions of this Court relied upon by the learned APP, there does not appear to be any infirmity in interpreting the use of the word “bad acts” by the victim to mean sexual intercourse/rape had occurred in the above cases. However, the said interpretation has been given in the facts and circumstances of those cases. In the decisions of Basir Uddin (Supra) and Santosh Tanti (Supra), the victim had clarified the use of the word “bad act” by stating that she had been raped and that there had been insertion of the penis into the vagina. Further, there was removal of clothes of the victim in the case of Anil Kumar (Supra). Keeping in view the attending facts and circumstances and clarifications made in respect of each individual case, the decisions in the above cases point towards the fact that rape had been committed. 21. In the case of Bharwada Bhoginbhai Hirjibhai (Supra), the Supreme Court has held that in the Indian setting, a refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, adds insult to injury. It further held that the evidence of a girl or a woman who complains of rape or sexual molestation should not be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion. Further, rarely would a girl or a woman in India make false allegations of sexual assault. The Supreme Court in the above case of Bharwada Bhoginbhai Hirjibhai (Supra) has not dealt on the issue of whether the use of the word “bad acts” by a victim would tantamount to rape. As such, the above decision does not really help us to decide the issue. Page No.# 10/16 22. We do not have any reason to doubt the observations of the Supreme Court with regard to the fact that corroboration of the evidence of a victim of sexual assault is not a rule and we should not view the victim’s statements with lenses tinged with doubt, disbelief or suspicion. However, the evidence of a victim of sexual assault would need corroboration, if there are major discrepancies and contradictions in the stand taken by the witnesses and the victim. 23. In the present case, the victim has clarified the use of the word “bad act” in her statement made under section 164 Cr.P.C. The victim has also stated that the said statement was recorded by a Magistrate and has exhibited the said statement as Ext. 4. When the victim girl has specifically clarified the use of the words “bad acts” in her section 164 Cr.PC statement, the use of the word “sexual intercourse” for the first time in her testimony before the learned Trial Court, without using the word “bad act”, leaves us with a suspicion that she had bettered her case by way of an after-thought. We cannot come around to the stand taken by the learned APP that the victim was subjected to sexual intercourse when she used the word “bad act” in her statement under section 164 Cr.P.C. We are thus of the view that the word ‘bad act’ by itself cannot be automatically inferred to mean or connote sexual intercourse or rape. 24. It is also quite unbelievable that the appellant would have sexual intercourse with the victim, while sleeping on the same bed with the mother of the victim. Further, the victim in her evidence has stated that though she raised objection, the appellant did not listen. It is highly improbable that the mother of the victim would not have heard or known that the appellant was raping the victim on the bed she was sleeping on. 25. The above being said, another aspect of the matter which has drawn our attention is the victim’s evidence that on 24/12/2019, the victim had gone with her mother to Barpeta by Sifhung Express and that her mother had returned, leaving her in the house of her elder sister at Barpeta. PW-1, who is the mother of the victim, has Page No.# 11/16 also stated in her cross examination that in the last part of the year 2019, PW-1 and the victim had gone to the house of her middle daughter at Barpeta where the victim had stayed for one week. Thereafter, PW-1 took back the victim to her house. Further, the next day after coming back to their house, PW-1 had again taken the victim to her middle daughter’s house at Barpeta, where the victim stayed for 15 days. 26. As such, a combined reading of the evidence of PW-1 and the victim (PW-3) shows that PW-3 could not have been raped on Christmas day i.e. 25/12/2019, as she had gone to Barpeta on 24/12/2019 and stayed there for a week, i.e. till 31/12/2019. 27. The evidence of PW-2, who is the sister of the victim, living in Bongaigaon, is to the effect that the victim had told her that she had been raped by the appellant on several occasions and the last time was on the night of 25/12/2019. On going to her mother's house on 31/12/2019 at about 11-11.30 a.m. along with her husband, her middle sister, the victim and the maternal uncle, they found the appellant with their mother in her house. 28. In her cross-examination, PW-2 stated that she did not know if on 24/12/2019, her mother had gone with the victim to Barpeta. She however denied the suggestion that on 25/12/2019, the victim was not at home. Thus, there is a discrepancy with regard to where the victim was on 25.12.2019, in Barpeta or in her mother’s house. 29. The evidence of PW-4 is to the effect that she knew about the incident which took place between the appellant and the victim and that the victim did not live with her mother after the incident. 30. The evidence of PW-5 is to the effect that he showed the police the house of the victim's mother. 31. The evidence of PW-6 is to the effect that the informant (PW-2) was his wife. Page No.# 12/16 He further stated that on 30/12/2019, the victim came to the house and told his wife that the appellant had raped her several times. On 31/12/2019, when they went to the house of PW-1, they saw the appellant and PW-1 in the same room. On asking the appellant whether he raped the victim, he denied the same. PW-6 also denied the suggestion that a false case had been lodged against the appellant to grab the property of PW-1. 32. The evidence of PW-7, who is the sister of the victim living in Barpeta, is to the effect that the victim came to her house on 26/12/2019. On the next day, PW-7 along with the victim went to their elder sister's house in Bongaigaon. Her elder sister then informed her over phone that the appellant had raped the victim on 25/12/2019 in their mother's house. On coming to know about the information from her, she came to her elder sister's house and asked her about the incident. The victim then stated that on 25/12/2019, the appellant had raped her. 33. The evidence of PW-8, who is the doctor and examined the victim on 01.01.2020, is to the effect that the hymen of the victim was torn at 7 o'clock position and the vagina admitted two fingers. PW-8 also stated that from the history, clinical findings and investigation reports, it could not be ascertained if the victim had been raped. 34. The evidence of PW-9, who is the Bench Assistant in the Court of the Judicial Magistrate, 1st Class, Bongaigaon, is to the effect that the Judicial Magistrate Surajit Das had recorded the statement of the victim under Section 164 Cr.PC. 35. The evidence of PW-10, who is the Headmaster, is to the effect that the victim was admitted in their school on 06/01/2011 in Nursery class (Ka) and as per the admission register, the date of birth of the victim was 22/03/2007. 36. The evidence of PW-11, who is the O.C. of the Dimou PS, Sibsagar, is to the effect that on 01/01/2020, PW-2 had submitted an FIR, which was registered and the Page No.# 13/16 investigation was undertaken by him. On completion of the investigation, he submitted the charge sheet. 37. In his cross examination PW-11 stated that the victim did not tell him that after the death of his father, the appellant used to stay in their house with her mother or that the appellant and the mother slept in a bed and on that day, he touched her breasts, or that the appellant had sexual intercourse with her for 4-5 days or that she had witnessed the appellant having sexual intercourse with her mother, or that her father died at a young age as he could not bear the relationship between his mother and the appellant. PW-11 also stated that PW-6 did not tell him that they saw the appellant and PW-1 in the same room or that the appellant raped the victim several times. Further, PW-7 did not tell him that the victim had told PW-2 that the appellant raped the victim. 38. The evidence of Court Witness No. 1 (CW-1), who is the wife of the appellant, is to the effect that since 2018, the appellant had been living with PW-1, the mother of the victim. 39. The examination of the appellant under Section 313 Cr.PC shows that the appellant has stated that he was innocent and that the allegation made against him was false. When he was asked as to whether he had anything to say, the appellant in his reply to question No. 15 under Section 313 Cr.PC stated the following:- “Q.15. Do you have anything else to say ? Ans: I was residing at the victim's house as tenant with my family along with my child before expiry of victim's father. After passing of my tenancy for six months, victim's father died. That the entrance of my tenanted room is on the Southern side and victim's house entrance is on the Northern side, totally opposite direction. For that after victim's father died sometimes victim's mother calls me for their household work and I also voluntarily helped them for their market, to go to school, bring gas, bring them to Doctor etc. The two elder daughters were given married by the victim's mother after the death of her husband and I helped them with Page No.# 14/16 my full effort in the said marriage. The victim's mother sold some portion of land to give marriage of her two daughters. The two daughters always used to disturb their mother and for that they with the help of victim filed this false case against me as I gave support to the victim's mother. I look upon the victim as my daughter. I never misbehave to her. I neither raped her nor gave any bad look upon her. All the daughters think that I have illicit relation with the victim's mother and for that they as their pre-plan filed this false case against me. On 25-12-2019 the victim was at Barpeta as her mother kept her there at her elder sister's home, so there is no question of rape to her. On 31-12-2019 while I was sleeping in my room, suddenly Chhitu Ghosh, Kalpana Ghosh, victim and some others came to my room and had beaten me mercilessly and handed over to Dangtola Outpost. After release from Jail hajot I filed an Ejahar in the name of Chhitu Ghosh. The said Chhitu Ghosh also attacked me on the road and snatched my golden ring and assaulted me for that I also lodged an Ejahar in his name.” 40. The examination of the appellant under Section 313 Cr.PC was again done on 22/11/2022, while the earlier examination had been done on 13/06/2022. In his examination under Section 313 Cr.PC on 22/11/2022, the appellant stated that as his wife was having an illicit relationship with PW-6, a false case had been initiated against him. However, PW-6 and his wife PW-2 were never confronted on this aspect by the appellant during cross-examination. 41. With regard to the question of delay in filing the FIR, keeping in view the fact that the victim in her evidence has stated that she was subjected to sexual intercourse a number of times, we are of the view that the delay in this particular case leaves us with a doubt as to the veracity of the allegation made against the appellant. The Supreme Court in the case of State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC 384, has held that the Courts cannot overlook the fact that in sexual offences, delay in lodging the FIR can be due to a variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident, which concerns the reputation of the prosecutrix and the honour of her family. Page No.# 15/16 42. The above being said, we are of the view that there is nothing in the statement of the prosecutrix under Section 164 Cr.PC, which corroborates her testimony before the learned Trial Court, except to the extent that the appellant touched the breast of the victim. We cannot accept the victim’s testimony that sexual intercourse had occurred between the parties, when the word “bad act” had been clarified in her statement under Section 164 Cr.PC. Further, it is settled law that a statement made under Section 164 Cr.PC can be used for contradiction or corroboration of the evidence of the maker of the statement. With regard to whether the alleged incident on 25/12/2019, even though it is possible that the victim had made a mistake during her cross-examination with regard to the date when she went to Barpeta with her mother to visit her sister, i.e. 24/12/2019, which would then have made it impossible for the victim to have been raped on Christmas Day, we are not fully convinced with the evidence of the victim that she had been raped. We are accordingly of the view that the Prosecution has not been able to prove that the appellant was guilty, beyond all reasonable doubt, of having committed the offence punishable under Section 6 of the POCSO Act. 43. In view of the reasons stated above, we do not agree with the findings of the learned Trial Court that a case of aggravated penetrative sexual assault has been proved beyond all reasonable doubt. The victim’s evidence that she was subjected to sexual intercourse is not corroborated by her statement made under Section 164 Cr.PC. Besides, we do not find her to be a sterling witness, on whose sole evidence, the appellant can be convicted. Accordingly, the conviction and sentence of the appellant under Section 6 of the POCSO Act by the learned Trial Court, vide the impugned judgment dated 10/01/2023, is hereby set aside. The appellant is accordingly acquitted from the charges framed against him under Section 376(3) IPC read with Section 4 of the POCSO Act. 44. The appeal is accordingly allowed. Page No.# 16/16 45. The appellant be set at liberty forthwith. 46. Send back the TCR. 47. In appreciation of the assistance provided by Ms. Marami Pathak, learned Amicus Curiae, her fees shall be paid by the Gauhati High Court Legal Service Committee. JUDGE JUDGE Comparing Assistant Kuntal Datta Digitally signed by Kuntal Datta Date: 2026.05.26 14:31:42 +05'30'