Page No.# 1/19 GAHC010123102025 2026:GAU-AS:7247- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./209/2025 SANJIB MAZUMDAR @ BUL S/O. LT. NALINI MAZUMDAR, PRESENTLY RESIDING AT- JORHAT BY PASS ROAD, NEAR AJANTA HALL, P/O. TARAJAN, P/S. JORHAT, DIST. JORHAT, ASSAM. 2: SASANKA MAZUMDAR @ JUN @ shasanka S/O. LT. NALINI MAZUMDAR PRESENTLY RESIDING AT- BORIGAON KHAJURIGURI NIMATI ROAD P/O. AND P/S. JORHAT DIST. JORHAT ASSAM PIN-785001. BOTH WERE ORGINALLY RESIDING AT WARD NO. 4 NATH GAON P/O. AND P/S. DERGAON DIST. GOLAGHAT ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:DIPAK NATH S/O. LT. BIPIN CHANDRA NATH R/O. DERGAON NATHGAON P/S. DERGAON DIST. GOLAGHAT ASSAM Page No.# 2/19 PIN-785614 Advocate for the appellants : Mr. T.J. Mahanta, Sr. Adv. Mr. P.P. Dutta, Adv. Advocate for the respondents : Ms. B. Bhuyan, Addl. P.P., Assam, Ms. S. Saloi, Adv. Ms. S. Sharma, Legal Aid Counsel for (R-2) :::BEFORE::: HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Date on which judgment is reserved : 11.05.2026 Date of pronouncement of judgment : 26.05.2026 Whether the pronouncement is of the : N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) (M. Zothankhuma, J) 1. Heard Mr. T. J. Mahanta, learned senior counsel assisted by Mr. P.P. Dutta, learned counsel for the appellants and Ms. B. Bhuyan learned senior counsel and Addl. PP for the State assisted by Ms. R. Saloi, learned Advocate. Also heard Ms. S. Sharma, learned Legal Aid Counsel for the respondent No. 2 (informant). Page No.# 3/19 2. This appeal has been filed by two appellants, Shri Sanjib Mazumdar and his brother Shri Sasanka Mazumdar against the impugned judgment dated 07/04/2025, passed by the learned Special Judge, POCSO, Golaghat in Special POCSO case No. 30/2020, by which the appellant, Shri Sasanka Mazumdar has been convicted for rape under Section 376 (3) IPC and for aggravated penetrative sexual assault under Section 6 of the POCSO Act of a 12 year old girl. However, in view of section 42 of the POCSO Act, accused Sasanka Mazumdar has been sentenced under section 6 of the POCSO Act only. The appellant Sasanka Mazumdar has accordingly been sentenced to undergo rigorous imprisonment for a period of 20 years with a fine of Rs 1 lakh, in default, to undergo simple imprisonment for 6 months. 3. On the other hand, the appellant Sanjib Mazumdar has been convicted under section 8 and 12 of the POCSO Act and sentenced to undergo rigorous imprisonment for a period of 5 years with a fine of Rs 50,000, in default, to undergo simple imprisonment for 3 months under Section 8 of the POCSO Act for sexual assault. He has also been sentenced to undergo rigorous imprisonment for a period of 3 years with a fine of Rs 20,000, in default, to undergo simple imprisonment for 1 month under section 12 of the POCSO Act for sexual harassment. Both the sentences are to run concurrently. 4. The Senior counsel for appellants submits that the conviction of the two appellants have been made solely on the basis of evidence of the victim, which is not reliable. He submits that there is contradiction in the evidence of the victim at the time of examination-in-chief vis- à-vis her cross examination. He also submits that there is a delay of 9 days in filing the FIR dated 02.07.2020 from the date of occurrence of the incident, which gives rise to an inference that there has been embellishment in the FIR submitted to the Police. The learned Senior Counsel also submits that while the incident had occurred on 24/06/2020, the FIR had been filed on 02/07/2020. Further, while the statement of the victim had been taken by the Police two days after the filing of the FIR, the 164 Cr.P.C. statement has been recorded after 11 days of the filing of the FIR. He also submits that there is also a chance of the victim being tutored. Page No.# 4/19 5. The Learned Counsel for the appellants submits that while the victim in her evidence had stated that the appellants had inserted their private parts into her private parts, which caused a lot of pain and there was bleeding, the medical examination report of the victim along with the evidence of the Doctor who made the same, showed that there was no injuries to her private parts and her hymen was intact. 6. The Learned Senior Counsel for the appellant further submits that while the FIR had been filed by the informant on the basis of PW-6 having allegedly seen the two appellants causing sexual harassment to the victim, the testimony of PW-6 before the learned Trial Court made no mention of any sexual harassment being caused by the two appellants against the victim. As such, when the foundational facts were not proved by the prosecution, the requirement of the appellants to prove their innocence by applying the principle of reverse burden of proof in terms of section 29 of the POCSO Act, did not arise. He accordingly submits that the impugned judgment convicting the appellants should be set aside. 7. The learned APP, on the other hand, submits that there is no contradiction in the evidence of the victim and that the delay of 9 days in filing the FIR did not cause any prejudice to the appellants. She submits that the evidence of the child, who was subjected to sexual abuse at the age of 12, was trustworthy and should inspire the confidence of the Court. She submits that there is nothing in the evidence to show that there was any enmity between the family of the victim or the appellants, for a false case to have been foisted upon them. Further, there was no tutoring of the child. She also submits that the medical report stating that the hymen of the victim was intact, does not in any manner prove that aggravated penetrative sexual assault has not been inflicted by the appellant Sasanka Mazumdar on the victim. Further, the absence of injury marks on the private parts of the victim does not mean there was no penetration into the private parts of the victim by the private parts of the appellant Sasanka Mazumdar or that there had been no sexual assault on the victim by the accused Sanjib Mazumdar. She also submits that there were a number of unmerited acquittals in rape cases and that Courts have to display a greater sense of responsibility and be more sensitive while dealing with charges of sexual assault on women. In support of her submissions, the counsel has relied upon the judgement of Page No.# 5/19 the Supreme Court in the case of State of Himachal Pradesh Vs. Manga Singh reported in (2019) 16 SCC 759. 8. Further, in the case of State of Punjab Vs. Gurmit Singh & Ors reported in (1996) 2 SCC 384, the Supreme Court has held that Courts cannot overlook the fact that in sexual offences, delay in lodging the FIR can be due to 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. It is only after giving it a cool thought that a complaint of sexual offence is generally made. She accordingly submits that as there is no infirmity with the decision of the learned Trial Court, the same should not be interfered with. 9. Ms. S. Sharma, the learned Legal Aid Counsel for the respondent no. 2 submits that the delay in filing the FIR is reflected in the evidence of the informant (PW-1), who is the father of the victim. He stated that on asking his daughter as to what had happened, her daughter told him that the appellants had told her that if she told anybody about the things that they had done, then her father would die like her mother, who had already expired. The counsel for the respondent no. 2 also submits that there was no major inconsistencies in the evidence of the victim and minor inconsistencies should be ignored by the Courts. She also submits that the statement of the victim under section 164 Cr.P.C. corroborates the evidence of the victim (PW- 2) given before the learned Trial Court. She also submits that the absence of injury marks on the victim cannot be a reason to discard the otherwise reliable evidence of the victim. She also submits that the evidence of a sexual assault victim is more reliable than that of an injured witness and in cases involving sexual molestation, the duty of the Court is to deal with such cases with utmost sensitivity. Further, even if the Doctor who examined the victim does not find signs of rape, the same cannot be a ground to disbelieve the sole testimony of the prosecutrix. In support of her submission, the learned counsel has relied upon the judgments of the Apex Court in the case Om Pal & Others Vs. State of U.P. (now State of Uttarakhand) reported in 2025 SCC OnLine SC 2292, Moti Lal Vs. State of Madhya Pradesh reported in (2008) 11 SCC 20, Lok Mal alias Loku Vs. State of Uttar Pradesh reported in (2025) 4 SCC Page No.# 6/19 470 and State of Punjab Vs. Gurmit Singh and others reported in (1996) 2 SCC 384. 10. We have heard the learned counsels for the parties. 11. The prosecution case, in brief, is that the informant (PW-1), who is the father of the victim, had submitted an FIR dated 02/07/2020 to the Officer-in-Charge of the Dergaon Police Station, stating that the accused Sanjib Mazumdar and Sasanka Mazumdar had been subjecting his 12 year old daughter to sexual harassment for the last two years after the death of the victim's mother. After having been informed by her neighbour PW-6, that PW-6 had witnessed the two accused persons sexually harassing the victim on 24/06/2020, he asked his daughter about the incident. She then informed him that the two accused persons had lured her, by promising to give her money. Further, if she disclosed the matter to the informant, the informant (father) would die like her mother. In pursuance to the FIR, Dergaon Police Station Case No.106/2020 under Section 376 IPC read with Section 4 of the POCSO Act, 2012 was registered. After investigation of the case by the Investigating Officer, charge-sheet was filed against the accused persons under Section 376(3) IPC read with Section 4 of the POCSO Act, 2012. 12. The learned Trial Court thereafter framed two charges against the appellants under Section 376(3) IPC and Section 6 of the POCSO Act, 2012, to which the appellants pleaded not guilty and claimed to be tried. 13. The evidence of PW-1, who is the father of the victim, is to the effect that the victim was his daughter and the incident occurred in the year 2020. He stated that PW-6, who was his neighbour, told him that she had seen the appellant Sashanka Mazumdar having sexual intercourse with the victim in the drawing room. On asking his daughter about the same, the victim told the informant that the appellants told her that if she informed her father about the same, her father would die like her mother. The victim then told PW-1 that whenever she used to visit the house of the appellants, both the appellants used to commit sexual intercourse with her. She also told him that she was enticed with chips and snacks and thereafter, they had Page No.# 7/19 sexual intercourse with her. Further, when he went to the house of the appellants, he did not find them as they had fled. On reporting the matter, a village meeting was organized, which the appellants did not attend. Thereafter, he filed the case in the police station. He also stated that he produced the birth certificate of his daughter, which was exhibited as M. Ext.-1, wherein her date of birth was recorded as 29/10/2007. In his cross-examination, the informant (PW-1) stated that the victim did not tell him that the appellants had inserted their private parts into her private parts or that the appellants had raped her. He also stated that he waited for three days for the village meeting and he did not see the appellants after the incident, because the villagers had excommunicated them. Further, the appellants had sold their land, though he did not know to whom the land was sold. He also stated that he did not mention in the F.I.R. that earlier, the appellants had sexual intercourse with his daughter. He also stated that he did not specifically tell the police that the appellants had raped his daughter. 14. The evidence of PW-2 (victim) is to the effect that the appellants were her neighbours. She stated that she used to go to the house of the appellants to play with their daughter. The appellant Sasanka Mazumdar used to show her nude videos in his mobile and thereafter, he inserted his private parts into her private parts. He committed the said act four or five times with her. She also stated that the appellant Sanjib Mazumdar showed her several nude videos several times and had sexual intercourse with her twice. She also stated that she felt severe pain in her private parts. The victim also stated that one day her aunt Meenakshi Rabidas (PW-6) saw the appellant committing a bad act with her in the drawing room and thereafter informed her father about the same. However, the victim has not specified as to who was the appellant who had committed the bad act seen by PW-6. In her cross-examination, PW-2 stated that the appellant Sasanka Mazumdar used to commit sexual intercourse with her for about half an hour. She experienced pain and there was bleeding from her private parts. She did not tell anybody about the incident, as the appellants had threatened her that if she disclosed the incident to Page No.# 8/19 anybody, her father would die like her mother. The victim alo denied the suggestion that she did not tell the Police or the Magistrate that the appellant Sanjib Mazumdar laid over her and committed a bad deed with her. 15. The evidence of PW-3 is to the effect that he was a neighbor of the appellants and that he knew the informant and the victim. One day, the informant told him that the appellant Sasanka Mazumdar had sexual intercourse with the victim in his drawing room, which was witnessed by PW-6. On making an enquiry with PW-6, PW-6 told him that she witnessed the appellant Sasanka Mazumdar raping the victim. He further stated that the neighbours discussed the issue and suggested making a report to the police. He also remembered that before filing the case, the wife of the accused person begged the informant to forgive her husband. 16. The evidence of PW-4 is that she knew the informant and the victim. She also knew the appellants, as they were her neighbours. The incident occurred in the month of June, 2020, when the informant told her that the appellants had committed a bad deed with their daughter which was witnessed by PW-6. On asking PW-6, P.W.6 told her and others that she witnessed the appellant Sasanka Mazumdar committing a bad deed with the victim. 17. The evidence of PW-5, who is the Doctor who examined the victim aged 12 years, is to the effect that she did not find any internal or external injuries on the victim and that the victim also did not speak of sustaining any injuries. She also found the hymen of the victim to be intact. 18. The evidence of PW-6 is to the effect that she knew the informant, the victim and the two appellants. She stated that the appellants stay in the back of her rented house and that the victim used to come to her house to play with her son. PW-6 also stated that the victim also went to the house of the appellants to play with the children of the appellant Sasanka Mazumdar. On the day of the incident, at about 11 a.m, she saw the victim sitting near the accused Sanjib Mazumdar, then she (PW-6) cried. She further stated that on the next day, the victim told her that the appellant Sanjib Mazumdar used to show her obscene videos and embraced her. She told the victim’s father about the same. After consulting family members, Page No.# 9/19 relatives and neighbours, an FIR was lodged. She also stated that her statement was recorded under Section 164 Cr.P.C. She also stated that on the date of the incident, the appellant Sasanka Mazumdar was not present at his house. PW-6 then exhibited her statement made under Section 164 Cr.P.C, without reiterating the contents of the same in her testimony before the learned Trial Court. 19. In her Section 164 Cr.P.C statement, PW-6 stated that on 30/06/2020, she saw Sasanka Mazumdar putting the victim on the sofa and removing her clothes. Sasanka Mazumdar also removed his trousers and the clothes of the victim. Then he climbed on top of the victim and had sexual intercourse with her. Witnessing the incident, PW-6 got scared and immediately told her husband about it. After the victim had gone to her house, PW-6 called the victim and asked her about the incident. The victim then told her that both the appellants had been sexually harassing her since her mother’s death. 20. The evidence of PW-7, who is the Investigating Officer, is to the effect that he investigated the case and interrogated the victim and the informant. He sent the victim for medical examination and drew a sketch map of the place of occurrence. He stated that he could not find the appellants during his investigation and as such, he submitted a prayer to the S.P's office to collect the call data records of four mobile numbers of the appellants, to track their location. On 09/07/2020, he submitted the case diary to the O/c of the Dergaon Police Station, as he had been transferred to Jamuguri Police Station. In his cross-examination, PW-7 stated that no reason had been given in the FIR for the delay of nine days in filing the FIR. Further, neither did the informant nor the victim tell him about any incident occurring on 24/06/2020. He also stated that he met the mother of the appellants when he went to the house of the appellants. He also stated that neither in the FIR nor in the statement of the informant recorded by him, did the informant state that the victim was raped by the appellants. Further, the victim did not tell him that the appellants showed her any nude photos or had committed any bad deeds with her. He also stated that the victim did not tell him that the appellant Sasanka Mazumdar had sexual intercourse with her 4/5 times. He Page No.# 10/19 also stated that during his investigation he did not find anything about any village meeting being held, which was related to the alleged incident of rape. Also, none of the witnesses examined by him disclosed anything about any village meeting being held. 21. The evidence of PW-8 is to the effect that on 12/07/2020, while working as the O/c of the Dergaon Police Station, he received the case diary from PW-7, who had been transferred to Jamuguri Police Station. On taking over investigation of the case, he was informed on 12/07/2020 by the O/c of the Golaghat Police Station that the appellant Sasanka Mazumdar had surrendered at Golaghat Police Station. He then went to Golaghat Police Station and took him into custody. He also recorded his statement. In his cross-examination, PW-8 stated that he did not know if the police searched for the appellant Sasanka Mazumdar in his house. He also stated that he submitted the charge-sheet against the appellants under Section 376(3) IPC read with Section 4 of the POCSO Act, wherein Sanjib Mazumdar was shown as an absconder. 22. The evidence of the Court Witness, CW-1, who is the Registrar of Births and Deaths, Dergaon SHC, is to the effect that as per the records maintained by him, the victim's date of birth is 29/10/2007 and the same was registered on 13/11/2007. He also brought the birth register, which proved the date of birth of the victim to be 29/10/2007. 23. In the examination of the appellants Sasanka Mazumdar and Sanjib Mazumdar under Section 313 of the Cr.P.C, the appellants have given a blanket denial to the evidence recorded against them, with regard to having raped and/or assaulted/harassment of the victim. 24. As can be seen from the above evidence of the witnesses, the FIR has been filed by the informant on the basis of the statement made by PW-6, that PW-6 had seen the appellants Sasanka Mazumdar and Sanjib Mazumdar sexually harassing the victim on 24/06/2020. In his evidence, PW-1 had stated that PW-6 saw the appellant Sasanka Mazumdar having sexual intercourse with the victim. However, there is nothing regarding PW-6 having seen the other appellant Sanjib Mazumdar on that particular day, i.e. on 24/06/2020, as per the FIR. PW-3 and Page No.# 11/19 PW-4 have also stated that they were told by PW-6 that the appellant Sasanka Mazumdar had raped the victim. However, PW-6 has remained completely silent about the rape of the victim by any of the appellants in her testimony before the learned Trial Court. Further, in her testimony, PW-6 stated that Sasanka Mazumdar was not present in his house on the date of the incident. Instead Sanjib Mazumdar was seen sitting next to the victim doing nothing illegal. This is a major discrepancy/contradiction in the evidence of the Prosecution witnesses. Though it would have been natural for the prosecution to declare PW-6 as a hostile witness, the same has not been done. 25. The above being said, there is also nothing to show that any bichar (village meeting) had taken place regarding the incident. Also, the medical evidence does not in any manner suggest that the victim had been raped numerous times for half an hour periods, keeping in view the fact that her hymen was intact, even when she was apparently around 12 years old at the time of her medical examination. 26. The above being said, it is interesting to note that the victim in her examination-in- chief has stated that both the appellants had sexual intercourse with her, while she states in her cross-examination that the appellant Sanjib Mazumdar did not have sexual intercourse with her. 27. In the case of Manga Singh (supra), the Hon’ble Supreme Court had considered the decision of Gurmit Singh & Ors (supra), where it had been held that Courts have to display a greater sense of responsibility and to be more sensitive while dealing with the charges of sexual assault on women. Further, the delay in filing the FIR could be due to many reasons, one of them being the reluctance of the victim or her family members to go to the police and complain about the incident, as the honour of the family is also at stake. It could also be due to the child victim speaking about the incident at a much later stage, than when it occurred. 28. In the case of Moti Lal (supra), it has been held that the victim of sexual assault is not to be treated as an accomplice and as such, her evidence does not require corroboration from any other evidence, including the evidence of a doctor. In a given case, even if the doctor who Page No.# 12/19 examined the victim does not find signs of rape, the same is no ground to disbelieve the sole testimony of the prosecutrix. In normal course, a victim of sexual assault does not like to disclose such offence even before her family members, much less before the public or before the police. The Indian women has a tendency to conceal such offence because it involves her prestige as well as the prestige of her family. The Supreme Court further observed that only in a few cases, do the victim girl or the family members have courage to go before the police station and lodge a case. In the present case, there is a stand taken by the appellants that the case against them is a fabricated case, on account of there being a land dispute between the appellants and PW-3 (the mother of the victim and wife of the informant), PW-3 has denied that there was any land dispute with the appellants, in her testimony before the Court. We do not find any proof of there being a land dispute between the parties as no documents and no specifics with regard to the land is produced in Court. 29. We find that the victim had been going to the house of the appellants to play with their daughter Zil (Ivy Mazumdar). The above fact does not endear us to the stand taken by the appellants in their 313 Cr.P.C examination, that a false case has been foisted upon them due to a land dispute with PW-3. 30. On considering the evidence available on record, we find that the FIR does not speak of there being any sexual intercourse between the appellants and the victim. It only speaks of the appellants sexually harassing the victim, on the basis of PW-6 having allegedly seen the sexual harassment of the victim by the appellants. As such, the entire case of the Prosecution rests not only on the victim, but also on the evidence of PW-6. 31. The evidence of PW-6, as stated earlier, does not provide any details and does not give any inference or implication that the appellants had sexual intercourse with the victim. PW-6 has only said that she saw the victim sitting near the accused Sanjib Mazumdar and then, PW-6 cried. In her testimony, PW-6 also stated that her statement was recorded under Section 164 Cr.P.C and the same was exhibited by her as Ext.-9. PW-6 has also stated in her cross- examination that on the day of the incident, Sasanka Mazumdar was not present in his house. Page No.# 13/19 On the other hand, the evidence of PW-1 is to the effect that PW-6 had seen the appellant Sasanka Mazumdar having sexual intercourse with the victim. This is a major contradiction in the evidence of PW-6 vis-à-vis the evidence of the victim and vice versa. The evidence of PW- 6 in her examination-in-chief has been contradicted by her in her cross-examination, to the extent that she had not told the Investigating Officer the facts stated by her in her examination- in-chief. In any event the only illegal act done on the victim by the appellants is with regard to the victim being shown obscene videos as per the examination-in-chief evidence of PW-6. 32. As stated in the foregoing paragraphs, PW-6 has not given any testimony before the learned Trial Court, pointing towards the appellants having any sexual intercourse or the appellants having sexually harassed or having sexually assaulted the victim. PW-6 has also not been declared a hostile witness. 33. The evidence of PW-2 (victim) is to the effect that the appellant Sasanka Mazumdar inserted his private parts into her private parts and the same had been done four or five times. She also stated that the other appellant also did bad deeds (sexual intercourse) with her. PW-2, in her cross-examination, has however stated that the other appellant Sanjib Mazumdar lay on top of her by removing her clothes, but did not commit any sexual intercourse with her. 34. If the appellant Sasanka Mazumdar and/or Sanjit Mazumdar who are adults had sexual intercourse with the victim several times, it does not appear probable that the hymen of the victim would have remained intact. Though it has been held in various decisions of the Supreme Court that it cannot be said that no rape had occurred just because the hymen remained intact, the same cannot be said to be a thumb-rule in all cases of rape/penetrative sexual assault. The same does not appear to be believable in this case. First of all, the child was around 12 years old. She had sexual intercourse four or five times with Sasanka Mazumdar as per her evidence. As such, in all likelihood, her hymen would not have remained intact if she had been subjected to sexual intercourse four or five times. 35. Keeping the above in view and also the fact that PW-6 has not stated in her testimony Page No.# 14/19 that Sasanka Mazumdar was not present in his house on the day of the incident and that she saw the victim sitting near the accused Sanjib Mazumdar, we are unable to hold that there had been penetrative sexual assault on the victim on the said date. This puts a doubt in our minds regarding the victim being raped on other occasions also. The evidence of PW-6 only points to the victim sitting with the appellant Sanjib Mazumdar on the day of the incident. The statement of PW-6 under Section 164 Cr.P.C is to the effect that she was told by the victim that the appellant Sasanka and Sanjib Mazumdar used to harass her sexually by showing her nude videos/films. Also Sanjib Mazumdar used to forcibly place his hand on her private parts and insert his finger into her private parts. PW-6 also stated that she saw Sasanka Mazumdar putting the victim on the sofa and removing her clothes and his pant. Thereafter, Sasanka established physical relation with her by climbing on top of her. However, the above statements/imputations are conspicuously absent in her testimony before the learned Trial Court. 36. The statement of the victim girl made under section 164 Cr. PC is to the following effect:- “The aforementioned details are true. I am studying in Class VII at Dergaon Uccha Balika Buniadi Vidyalay. Around 11 a.m. the day before yesterday, I went to the house of Sri Sasanka Mazumdar and Sri Bul Mazumdar. They are our neighbours. I went there to meet Arhi Mazumdar, the daughter of Sasanka Mazumdar. However, her grandmother told me that Arhi was not at home. Her grandmother cannot see. Then, as I was about to leave the place, Sasanka Mazumdar held my hand and took me inside the house. Then he removed his pant as well as mine and committed bad act on me. When I tried to scream, he gagged me. After a while, I pushed him away and returned home. Smti. Minakshi Rabidas, who lives near our house as tenant, saw Sasanka Mazumdar committing bad act on me from her rented house. She informed my father about the incident. I also told my father about the incident after reaching home.” The statement of the victim made under section 164 Cr.P.C. is only with regard to Sasanka Mazumdar committing a bad act on her, after taking off her clothes, which was seen by PW-6. However, the victim’s statement under section 164 Cr.P.C. and evidence of the victim is contradicted by the evidence of PW-6, who stated that she only saw Sanjib Mazumdar and Page No.# 15/19 not Sasanka Mazumdar with the victim. Further, Sasanka Mazumdar was not seen on that particular day by PW-6. This is a major discrepancy in the evidence of PW-2 and PW-6 37. As has been held by the Supreme Court in the case of R. Shaji Vs. State of Kerala, reported in (2013) 14 SCC 266, statements under Section 164 Cr.P.C. can be used for both corroboration and contradiction, but the same by itself is not substantive evidence. We would have to understand the above law with regard to the statement of a witness made under Section 164 Cr.P.C. and not with regard to a confessional statement made by an accused. In the present case, PW-6 has not stated anything about the alleged rape in her testimony. The statement made under Section 164 Cr.P.C by PW-6 is not admissible in evidence. The evidence of PW-6 does not implicate the appellants in any manner. In any event, as stated earlier, PW-6 in her cross- examination has stated that the appellant Sasanka Mazumdar was not present in his house at the time of the incident. It is again reiterated that PW-6 was never declared a hostile witness. 38. In the case of Om Pal & Others (supra), the Supreme Court held that the testimony of an injured witness should generally be given due importance unless there are glaring contradictions. As a victim of sexual assault is at par with an injured witness, the importance to be given to the evidence of a sexual assault victim would have to be at par with the evidence given by an injured witness, if not more so. While considering the evidence of the victim and the evidence of PW-6 and also the fact that the hymen of the victim was intact despite having allegedly been subjected to intercourse by two adults on numerous occasions, as per the evidence of the victim, we are not convinced with the truthfulness of the testimony of the victim. In the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21, the Supreme Court has held that the testimony of a sterling witness should be of a very high quality and calibre, which should be unassailable. The said testimony should consistently match with the version of every other witnesses. However, in the present case, the testimony of the victim does not match the testimony of PW-6, who was an eyewitness to the victim being with the appellant Sanjib Mazumdar. While the victim had stated that she had been subjected to rape by Sasanka Mazumdar when they were spotted by PW-6, PW-6 has stated that she did not see Sasanka Mazumdar on that particular day, but only saw Sanjib Mazumdar. As such, when the Page No.# 16/19 discrepancy/contradiction of the witnesses goes to the root of the matter, it would not be safe to convict the appellants only on the basis of the testimony of the victim. 39. The above being said, the Supreme Court in the case of State of Himachal Pradesh Vs. Gian Chand, reported in (2001) 6 SCC 71 has held that delay in lodging an 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 on 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 the Prosecution version on account of such delay, the delay would be fatal to the prosecution. 40. In the present case, the delay pertains to a case of rape and sexual assault on a minor girl. The law laid down in Gian Chand (supra) cannot be directly applied in toto to rape cases, as the Supreme Court has clarified in Gurmit Singh & Ors (supra), that in cases of sexual offence, delay can be due to a variety of reasons, one of them being the reluctance to approach the police, as it concerns the reputation of the victim and the honour of her family. There is also the issue of enormous embarrassment with regard to the rape of an unmarried minor girl and the feeling of shame that is brought upon the victim and the family, as it could affect their honour amongst their peers and their family. 41. On considering the facts of this case and keeping in view cases involving sexual assault, we do not find that the delay in filing the F.I.R. is fatal to the prosecution case. However, we are not convinced with the truthfulness of the evidence given by the victim, keeping in view the fact that there are major discrepancies, partly due to the fact that the entire case has its genesis, from the information given by PW-6 to the victim's father that she had seen the appellant Sasanka Mazumdar having sexual intercourse with the victim, which is conspicuously absent in the evidence of PW-6.. 42. However, the evidence of PW-6 has shown that PW-6 had not seen the appellant Sasanka Mazumdar or Sanjib Mazumdar raping the victim. Further, the evidence of the victim Page No.# 17/19 only speaks of Sanjib Mazumdar showing the victim nude videos on his phone and doing bad deeds with her, without clarifying what those bad deeds are. The victim in her cross- examination has stated that Sanjib Mazumdar did not commit sexual intercourse with her. As such, when there is no sexual intercourse between the victim and the appellant Sanjib Mazumdar, we have to see whether there is proof of Sanjib Mazumdar having committed the offence of sexual assault on the victim. Further, the victim has not clarified what she meant by saying that the appellant Sanjib Mazumdar had committed “bad deeds” with her. 43. 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 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 testimony has been clarified to be insertion of the private parts of the accused into the private parts of the victim. 44. On aspect of the matter that needs consideration is whether the acts of the appellants can be construed to be sexual assault, inasmuch as, Section 7 of the POCSO Act, 2012 states as follows:- “7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” 45. The evidence of PW-2 is only to the effect that the appellant Sasanka Mazumdar used Page No.# 18/19 to lie over her, after removing her clothes and showing her nude videos. Similarly, the victim stated that the other appellant Sanjib Mazumdar showed her nude videos and did the bad act twice. She also stated that she felt severe pain on her private parts on the day Sasanka Mazumdar committed a bad deed upon her, which was seen by PW-6. The victim also stated that Sasanka had done the bad act with her 4 or 5 times. Leaving aside the bad act or rape that had been alleged to have been committed by the appellants on the victim, there is no proof that any nude videos or films had been shown to the victim by the appellants. There is also nothing to show that the appellants had, with sexual intent, touched the vagina, penis, anus or breast of the victim or had made the child touch the penis, anus or breast of such person. 46. In view of the above reasons, we do not find the evidence of the victim to be that of a sterling witness, the same needs corroboration, which is sadly lacking in the present case. Further, we are not convinced with the allegation of rape being made out by the victim, inasmuch as the doctor's evidence shows that the hymen is intact, even though she had been allegedly subjected to sexual intercourse many times. 47. The records and the evidence show that the appellants were apparently absconding prior to their arrest, which implies a guilty mind. However, the same can also imply that they wanted to escape Police harassment. As such, the appellants’ absconding can only be relevant with regard to any evidence that might prove the guilt of the appellants and the same cannot be a basis for proving the guilt of the appellants. 48. For all the reasons stated above, we are of the view that the prosecution has not been able to prove the guilt of the appellants under Sections 6, 8 and 12 of the POCSO Act beyond all reasonable doubt. Accordingly, we acquit the appellants of the charges framed against them by giving them the benefit of doubt. Consequently, the impugned judgment dated 07/04/2025 passed by the learned Trial Court in Special POCSO case No. 30/2020 is hereby set aside. The respondents are directed to release the appellants from judicial custody immediately, if not wanted in any other case. Page No.# 19/19 49. In appreciation of the assistance provided by the legal Aid Counsel for the appellant, her fees should be paid by the Gauhati High Court Legal Services Committee as per norms. 50. Send back the TCR. 51. The appeal is accordingly disposed of. JUDGE JUDGE Comparing Assistant Sukha may Dey Digitally signed by Sukhamay Dey Date: 2026.05.26 14:20:51 +05'30'