Page No.# 1/16 GAHC010250852023 2026:GAU-AS:7688 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./415/2023 SURESH PEGU S/O BHULA PEGU, VILL.- BHAKURI CHAPORI AHOM PATHAR, P.O.- DIHINGMUKH, P.S.- DEMOW, DIST.- SHIVASAGAR, ASSAM, PIN- 785671. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:MAKANA PANGING S/O LATE LAXMAN VILL.- BHEKURI CHAPORI AHOM PATHAR P.O.- DIHINGMUKH P.S.- DEMOW DIST.- SHIVASAGAR ASSAM PIN- 785671 Advocates for the appellant : Dr. A. Chamuah, Advocate. Advocates for the respondents : Ms. S.H. Bora, Addl. P.P, Assam. Dr. P. Agarwal, Legal Aid Counsel (for respondent No.2.) Page No.# 2/16 BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR Date on which judgment is reserved : 25.03.2026 Date of pronouncement of judgment : 02.06.2026 Whether the pronouncement is of the : N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) Heard Dr. A. Chamuah, learned counsel appearing for the respondent. Also heard Dr. P. Agarwal, learned Legal Aid Counsel for respondent No.2 and Ms. S.H. Bora, learned Addl. Public Prosecutor. 2. This is an appeal against judgment and order dated 19.09.2023 passed by the Learned Special Judge POCSO Sivasagar Assam in POCSO Special Case number 61 of 2022 whereby the accused, who is the present appellant, has been convicted under Section 376 (2) IPC and sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of rupees 10,000/- and in default to undergo rigorous imprisonment for another six months. 3. A First Information Report was lodged with the Nitaipukuri Police Station on 4th of July 2022, stating that the minor sister of the informant, who is aged about 17 years, was found to be eight months pregnant and on interrogation, Page No.# 3/16 the minor had stated that she had been raped by a co-villager, namely the appellant herein, by posing a threat at night by showing a dao. The FIR alleged that the accused had admitted to the said fact. It was accordingly requested to take appropriate action against the accused as per law. 4. Demow Police Station case no 77/2022 under Section 376 of the IPC, read with Section 6 of the POCSO Act, was registered on the basis of the said FIR. On completion of the investigation, a charge sheet was submitted against the accused under Section 376 of the IPC, read with Section 6 of the POCSO Act. The case was tried as Special POCSO case no. 61/2022 in the court of the learned Additional Session Judge cum Special Judge POCSO, Sivasagar and by the impugned Judgment dated 19.09.2023, the accused was found guilty of committing offence under Section 376 of the IPC, and he was sentenced as stated in the foregoing paragraphs. 5. During the trial, the prosecution examined 15 witnesses, including the medical officer, the investigation officer, the victim and the informant. The statement of the accused had been recorded as per the provisions of Section 313 of the Cr.P.C. The Defence did not produce any witnesses. 6. The learned Trial Court framed 3 points for determination, namely 1. Whether the victim was less than 18 years of age at the time of the incident? 2. Whether about eight months prior to the lodging of the Ejahar on 04.07.2022, the accused, on several days, committed rape on the Page No.# 4/16 victim/Miss X, and thereby committed offense punishable under Section 376(2) of the IPC?; and 3. Whether during the same period, the accused committed penetrative sexual assault on the victim/Miss X, more than once and thereby committed offense punishable under Section 6 of the POCSO Act? 7. The learned Trial Court was of the opinion that the date of birth of the victim entered in the school record could not be considered for ascertainment of her age since the basis of the date of birth of the victim entered there was not found to be reliable. Further from the oral evidence on record, the learned Court was of the opinion that it was not proved beyond doubt that the victim was aged less than 18 years at the time of the incident. It was held that the prosecution failed to prove that the victim was aged less than 18 years at the time of the incident, and therefore, it could not be held that the victim was a minor at the time of the incident. There is no challenge to this finding of the learned Trial Judge. 8. The Trial Court was of the view that since the prosecution had failed to prove that the victim was a minor at the time of the incident, the provisions of the POCSO Act would not be attracted. Therefore, the prosecution would be required to prove its case beyond reasonable doubt to bring home the charge under Section 376(2) of the IPC. The learned Trial Court thereafter evaluated the evidence tendered by PW1, PW2, PW3 and PW4 to come to a conclusion that the fact of the pregnancy of the victim was first known to PW3 and PW4, Page No.# 5/16 who in turn informed the incident to PW2. From the evidence, it also came to light that the accused was responsible for the pregnancy of the victim. The learned Trial Court thereafter noticed the plea of the defense that the victim had sexual relations with the accused on her own consent. Therefore, the learned Trial Court was of the opinion that the pertinent question that fell for consideration was whether the sexual intercourse between the victim and the accused took place with the consent of the victim or not. Having again referred to the different statements made by the Prosecution Witnesses during the trial and finding the same to be corroborating each other, the learned Trial Court came to the finding that the accused had forced himself on the victim. 9. Referring to the provisions of Section 114A of the Indian Evidence Act, the learned Trial Court came to a finding that since the sexual intercourse by the accused with the victim had been proved and since the victim had stated in her evidence before the Court that she did not consent, the Court was required to presume that the victim did not consent. The learned Trial Court was of the opinion that the Prosecution had been successful in proving beyond all reasonable doubt that the accused, about eight months prior to the lodging of the Ejahar on 4th of July 2022, had established physical relationship with the victim against her consent on several days. By referring to the provisions of clause (n) of sub-section 2 of sub-section 376 of the IPC, the accused was held guilty of having committed offenses under section 376(2) of the IPC. 10. Dr. Chamuah, learned Counsel for the appellant, has submitted that the Page No.# 6/16 testimony of the alleged victim in the present case had been wavering on different occasions. Therefore, her evidence could not be classified as sterling quality. He had submitted that the alleged victim did not specify any timeline of the alleged incidents, and she was not consistent in recalling the number of occasions when the alleged assaults took place. He has further submitted that it was not the case of the victim or the prosecution that the alleged victim had been kept in confinement. Dr. Chamuah submits that there is no explanation on the part of the victim as to why she did not reveal the alleged assaults to anybody over a period of 8 months. The learned Counsel has also submitted that evidence led by the Prosecution upon the results of the DNA tests allegedly conducted by the prosecution had also been demolished by the defence when it was proved that proper and due procedure in obtaining the samples and sending them for the tests had not been followed and further, when the experts who had drawn the samples and put the samples to test were not produced as witnesses. He has relied on the case of Passang Tashi vs. The State of Arunachal Pradesh, reported in 2025 Supreme (gau) 1556, to refer to the importance of a proper DNA test to be conducted for a successful trial in cases of the present nature and has submitted that since the DNA test conducted could not survive the test of law, the entire prosecution of the accused must necessarily fail. 11. Dr. Chamuah has further submitted that the victim had, while recording her statement under Section 164 of the Cr.P.C., stated that she was 17 years old on Page No.# 7/16 05.07.2022, but while adducing her evidence as PW1 on 26.04.2023, she said that she was 16 years old. The learned Counsel has further submitted that, in her 164 statement, the victim had stated that the accused had gagged her mouth and put an axe on her neck, forcefully opened her clothes and committed rape upon her thrice on the same night however, while adducing her evidence as PW1, she did not refer to the aforesaid incidents. The learned Counsel has submitted that the variation in the evidence of the victim regarding the occurrence of the incident three times on the first night, seven or eight times as per her 164 statement and several times even after she was pregnant, as per the evidence given before the court, constitutes a material contradiction that undermines the core of the Prosecution's story. The learned Counsel has submitted that the Apex Court has consistently held that, for a conviction to be based on the sole testimony of a victim, her version must be beyond reproach. 12. By referring to the judgment of the Apex Court in Raja and others versus the State of Karnataka reported in (2016) 10 SCC 506, the learned counsel has submitted that if the testimony of the prosecutrix is found to be unreliable or full of contradictions, the same cannot be the sole basis for conviction. By referring to the case of Santosh Prasad alias Santosh Mahato versus State of Bihar reported in (2020) 13 SCC 273, he has submitted that the Apex Court had held that even in cases of sexual assault, the testimony of the victim must be of “sterling quality”. If the version is improbable or contains vital contradictions, the accused would be entitled to the benefit of doubt. Page No.# 8/16 By referring to the case of Ramdas Vs State of Maharashtra, reported in (2007) 2 SCC 170, he has submitted that the Apex Court had noted that when there are significant variations in the versions given by the prosecutrix at different stages, the evidence loses its sterling quality and cannot be termed as the gospel truth. Dr Chamuah has thereafter referred to the judgments of the Apex Court rendered in the case of Prakash Chand VS state of Himachal Pradesh reported in (2019) 5 SCC 628 and the Judgment rendered in Vijayan versus state of Kerala reported in (2008) 14 SCC 763 to submit that while the law is sensitive to the trauma of victim who has suffered a penetrative sexual assault, a delay of seven months in lodging an FIR combined with the fact that the victim was a frequent visitor to a public place, in this case the shop of the accused himself, it would not appear that the victim was under any threat from the accused. He has submitted that the alleged “threat to life” could not be presumed to be the sole reason for her maintaining silence over a period of eight months of continued penetrative sexual assault and would rather indicate consent on the part of the alleged victim to the continued sexual relationship. 13. Dr Chamuah has thereafter submitted that it is an admitted position in the evidence of the prosecution witnesses themselves that a village meeting had forced the accused to take the victim to his house, and that failure of the settlement sought to be brought about by the forced cohabitation after the village meeting was the reason for the informant to have lodged the FIR. The Page No.# 9/16 reason for initiating the criminal complaint was thus the failure of the conjugal life and not the presumably consensual relationship. 14. Dr Chamuah has further submitted that the statement of the accused recorded under the provisions of Section 313 of the Cr.P.C. cannot be taken as evidence. He has submitted that even if the accused owes an explanation, but he fails, or he did not give an explanation, the same by itself cannot be a ground for conviction, and such failure or refusal to explain cannot be allowed to lend credence to the Prosecution's story. He has referred to the cases of Rajkumar Singh versus State of Rajasthan reported in (2013) 5 SCC 722, and the case of Ajay Munda versus State of Assam reported in 2016 SCC Online GAU 280 to support his contentions. 15. The learned Additional Public Prosecutor, controverting the arguments made on behalf of the appellant, has submitted that the fact of the victim being impregnated by the accused is an admitted position. She has submitted that the DNA tests have confirmed that the child born to the victim was fathered by the accused. The learned Additional Public Prosecutor has further submitted that the accused, in his statement recorded under the provisions of Section 313 of the Criminal Procedure Code, had admitted that he had a physical relationship with the victim. The accused had also admitted in his statement that the village council had assembled to bring the issue to a settlement and that he had taken the victim with him to his home as per the decision arrived at by the village council. The learned Addl. P.P has further submitted that the evidence of the Page No.# 10/16 independent witnesses, who were not connected to either the victim or the accused, and who were presented as prosecution witnesses also lent substance to the fact that the accused had admitted that he had established physical relationship with the victim by threatening her with a “MIT” dao and that the happenings had taken place at a time when the father of the victim was bedridden. The learned Additional Public Prosecutor has submitted that the inconsistencies sought to be relied upon on behalf of the appellant are not material, inasmuch as, it has been the constant stand of the victim that the petitioner had ravished her at night when her father was laid bedridden, had threatened her of putting the father of the victim to death in case she raised hue and cry or informed anybody and that she had been repeatedly raped over a period of eight months. The learned Additional Public Prosecutor has submitted that it cannot be expected of a victim to meticulously remember the details of every occasion when she was subjected to repeated rape, since on every occasion she would be under immense fear, which may cloud the memory. The learned Addl. P.P has further submitted that due to the threat given by the accused, the victim had refrained from divulging her condition to anybody, and it was only when the pregnancy was detected that she could muster the courage to raise a finger of accusation against the appellant. The learned Addl. P.P has submitted that in the presence of the members of the village council, including the Gaon Pradhan and the members of the village defense party, the victim stated that the appellant had forced himself upon her, causing her to get Page No.# 11/16 pregnant. The evidence led by the members who were present in the village meeting have also corroborated the above stand. The learned Addl. P.P has submitted that a settlement was sought to be brought in by the village council, and on the same having failed, there was no other alternative but to lodge an FIR bringing to light the misdeeds of the accused. The learned Addl. P.P has submitted that the delay in filing the FIR has been duly explained, and the same can also be deciphered from the sequence of events. 16. The learned Amicus Curiae has supported the case of the prosecution and has submitted that the Trial Court had taken into account the issue of delay in lodging of the FIR and had addressed the same. The learned Amicus has also submitted that the Trial Court had considered the submissions regarding the alleged inconsistency in the evidence of the Prosecution Witnesses. She has submitted that the evidence of the victim has remained unshaken even during the cross-examination, and the delay in lodging the FIR had been explained by the victim, as also by the informant, that the same was due to the threats issued by the accused to the victim. She has submitted that the accused had confessed that he was involved in a physical relationship with the victim. She has further submitted that when the fact of a physical relationship is established by the Prosecution and the victim states in her evidence that she did not consent, the court shall presume that she did not consent. She has submitted that the accused had failed to disprove the fact that the sexual relationship was without the consent of the victim. Therefore, there is no fault in the conclusion Page No.# 12/16 of the learned Trial Court that the accused had committed the offence of rape upon the victim. She has accordingly prayed for dismissal of this appeal. 17. The Trial Court records have been perused, and the submissions made by the learned Counsel have received due consideration of this Court. The relevance of the judgments relied upon by the learned Counsel has also been tested with reference to the present case. 18. The case of the appellant is premised on the delay in lodging the FIR, the projected contradictions in the statements of the witnesses and the fault attributed to the alleged DNA test conducted at the behest of the respondents. 19. The victim girl has stated that she was under a constant threat from the accused and therefore she had not divulged the atrocity committed upon her for eight months. The victim has further stated that she did not realize that she was pregnant, and in fact, the same came to light when her sister had insisted that she should undergo a pregnancy test. Even after the pregnancy test had confirmed that the victim was pregnant, the village meeting had taken a decision, on the confession of the accused, that the victim would accompany the accused to his home and live with him as his wife. It was only when the victim had to leave the house of the accused due to circumstances created by him, that the brother of the victim had lodged the FIR against the accused. It is a common feature that young victims of sexual assaults often take their own time to divulge their sufferings to their near and dear ones, either because of shame or out of fear of being exposed to a backlash from society. In the present case, Page No.# 13/16 it was only when the sister of the victim noticed her pregnancy that she could muster the courage to divulge the paternity of the child being carried by her. She has stated that she was depressed and had to give up her participation in football due to the atrocities. She stated that she did not want to get married at that age. In view of the above, I do not find that the delay in lodging the FIR was either because the victim did not want to lodge the FIR or that the matter was delayed, leading to eventualities where it would not be possible to ascertain the guilt or innocence of the accused. The projected delay in lodging the FIR is, therefore, in my considered opinion, correctly held by the learned Trial court to be not fatal to the case projected by the prosecution against the accused. 20. The informant did not have personal knowledge of the incidents, but he was a witness to the village meeting and the confession of the accused. The evidence of the victim has not wavered. As sought to be argued by Dr. Chamuah, learned Counsel in this appeal, indeed, she could not state specifically the number of times that the accused forced himself upon her, but in the considered opinion of this Court, that alone cannot be sufficient to doubt or discard her evidence. Her evidence as to the first incident could successfully withstand the test of cross-examination. Her evidence that the accused had established a physical relationship with her several times had been corroborated by none other than the accused himself in his statement recorded under Section 313. PW 8 who was the neighbour of the victim and the accused had stated that he was present in the village meeting where the accused had confessed to his Page No.# 14/16 guilt. PW 5, 9,10 and 11 corroborated the evidence of PW 8. There is enough material on record to show that the accused had made extra-judicial confessions, which have been proved by witnesses who were unconnected to both the victim and the accused, and against whom there are no reasons to doubt. The minor contradictions in the evidence led by the prosecution as sought to be projected in this appeal, in my considered view, are not potent enough to render the evidence of the victim either wholly unreliable or wholly untrustworthy. 21. Insofar as the contention regarding the fault in the forensic evidence, namely the DNA test, is concerned, even if the result of the said test is totally ignored, the guilt of the accused appellant stands proved in the evidence led by the prosecution. It is true that, had the DNA test been done in a manner that the defence could not impeach, the results would have been another ace for the prosecution. However, even if the DNA test results are ignored in the present case, there would be no difference to the finding that the accused had, on more than one occasion, established a sexual relationship with the victim, without her consent. 22. The reliance of the counsel for the appellants on the case of Passang Tashi (supra), appears to be misplaced since in that case, the prosecution had relied solely upon circumstantial evidence and therefore, the Court had held that conviction recorded, without any direct evidence, and without the circumstantial evidence forming a chain so complete to unerringly point towards the guilt of Page No.# 15/16 the appellant, cannot be sustained. In the case at hand, the prosecution has not relied solely upon circumstantial evidence, rather, the prosecution had been able to bring home the guilt of the accused by leading cogent evidence. With respect to the judgement referred by the learned Counsel for the appellant in the case of Ramdas (Supra), this Court finds useful reference in the case of State of Himachal Pradesh V. Prem Singh reported in (2009) 1 SCC 420, wherein, the Supreme Court stated that, delay in case of sexual assault, cannot be equated with the case involving other offences. Similarly, in the case of Satpal Singh v. State of Haryana, reported in (2010) 8 SCC 714, it has been held that, once delay in lodging FIR has been satisfactorily explained, such delay in lodging FIR has to be considered with a different yardstick. With regard to the reliance placed by the learned Counsel for the appellant on the case of Rajkumar Singh (supra), I find useful reference in the case of Munish Mubar v. State of Haryana, reported in (2012) 10 SCC 464, that, non-explanation by appellant-accused regarding incriminating evidence against him recorded u/s 313 Cr.PC and where the chain of events is complete, and every link thereof, is a pointer towards the guilt of the accused, it would warrant conviction. Also, in the case of Veerendra V. State of Madhya Pradesh, reported in (2022) 8 SCC 668, it was held that a positive result of a DNA test would constitute clinching evidence against the accused. But, a negative result of DNA Page No.# 16/16 test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. 23. In conclusion, I do not find any fault with the findings arrived at by the learned Trial Court regarding the guilt of the appellant and therefore, the appeal is dismissed. 24. The valuable assistance rendered by the Learned Amicus is appreciated. 25. Return the Trial Court records, along with a copy of this order. JUDGE Comparing Assistant