Page No.# 1/33 GAHC010163922025 2026:GAU-AS:8365- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./283/2025 Suruj Ali @ Soto, Son of Samsul Hoque Village:- Karchuabori, Jhargaon, P.S- Jagiroad, District-Morigaon, Assam … . Appellant VERSUS 1. The State of Assam Represented by The Public Prosecutor, Assam 2. Musstt. Banesa Khatun, (Informant/mother of the victim) W/o- Md. Ajimuddin Resident of Korotiipam P.S- Morigaon District- Morigaon, Assam .… Respondents BEFORE HON'BLE MR. JUSTICE NELSON SAILO HON’BLE MR. JUSTICE RAJESH MAZUMDAR Advocate for the Appellant : Mr. S.K. Poddar, Advocate Page No.# 2/33 Advocates for the Respondents : Ms. B. Bhuyan, Additional Public Prosecutor Mr. S.D. Purkayastha Legal Aid Counsel Date on which judgment is reserved : 02.06.2026 Date of pronouncement of judgment : 12.06.2026 Whether the pronouncement is of the operative part of the judgment? : No Whether the full judgment has been pronounced? : Yes JUDGMENT & ORDER (CAV) (Nelson Sailo,J) Heard Mr. S.K. Poddar, learned counsel for the appellant, Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam for the State and Mr. S.D. Purkayastha, learned Amicus Curiae for the respondent No.2. [2.] This is an appeal filed under section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short BNSS), filed by the appellant against the impugned judgment and order dated 13.06.2025 passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Morigaon in POCSO Case No.106/2024, by which the appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO) and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.30,000/- and in default to undergo rigorous imprisonment for 03(three) Page No.# 3/33 months. [3] The case of the Prosecution in brief is that an F.I.R was lodged by one Musstt. Banesa Khatun before the Officer-in-Charge, Morigaon Police Station on 19.05.2024 to the effect that the appellant, who is the father-in-law of her elder daughter, on 18.05.2024 at about 01:00 P.M, came to their house along with her said daughter and stayed for the night in their house. That her husband, the appellant and the victim, aged 12 years, slept in one bed in a room, while she and her other daughters slept in another bed in another room. At about 11:30 P.M, she and her husband went out in search for their cow which was missing from the cow shed and returned back home after about 45 minutes. On returning, her husband found the victim sitting and crying on the bed on which the appellant was sleeping. Her husband then asked the victim as to why she was crying and to which she told him that her stomach was paining. He then told the mother of the victim to see what had happened to her. The victim then in tears disclosed that the appellant had gagged her, forcefully removed her panty and raped her. She further stated that the appellant threatened to kill her by strangulating her, if she told anyone about the incident. Then they immediately called their neighbours and informed them about the incident, apprehended the appellant and informed the police. Thereafter, she requested the police to take necessary action against the appellant for the heinous crime committed by the appellant. [4.] The F.I.R was registered as Morigaon Police Station Case No.133/2024 Page No.# 4/33 under Section 376(3) IPC read with Section 6 of the POCSO Act. Accordingly, the case was investigated into and upon completion of the investigation, a charge-sheet was filed against the appellant under Section 376(3) IPC read with Section 6 of the POCSO Act. Charge was then framed under the said sections of law, to which the appellant pleaded not guilty and claimed to be tried. Trial was accordingly held and in the process, as many as 10(ten) witnesses were examined by the Prosecution to prove the charges. Upon conclusion of the Prosecution evidence, the appellant was examined under Section 313 Cr.P.C and thereafter, as there was no Defence Witness to examine by the defence, the learned Trial Court upon hearing the parties, passed the impugned Judgment and Order convicting and sentencing the appellant in the manner as already stated in the preceding paragraphs. Aggrieved, the instant appeal has been filed by the appellant. [5.] Mr. S.K. Poddar, learned counsel for the appellant submits that as per the F.I.R, the complainant contended that her husband, the appellant and their minor daughter, the victim, slept in the same bed in one room, while she and her other two daughters slept in another room. However, in the evidence of the Prosecution during trial, it has come to light that there is only one room, where the family of the victim was staying. Therefore, there being clear contradiction, the evidence of the Prosecution is not reliable. He submits that according to the Prosecution, the bed on which the complainant and her daughters slept and the bed where the appellant, the victim and her father slept were at a distance of Page No.# 5/33 about 6-7 Feet, but no one noticed or heard about the incident including the daughter-in-law of the appellant. Going by the proximity of the two beds, it is surprising that no one noticed or heard about the incident. The daughter-in-law of the appellant woke up at 06:00 a.m. in the morning and only came to know about the incident from her mother. Therefore, the allegation made against the appellant is most unreliable and improbable and the appellant could not have been convicted and sentenced in the manner it was done by the learned Trial Court. The learned counsel for the appellant further submits that there is nothing in the medical examination of the victim to implicate the appellant. In fact, the Medical Officer opined that the inflammation found on the victim could also be because of fungal infection/allergy. Therefore, in the absence of any concrete finding or opinion to implicate the appellant in the medical examination, the appellant could not have been convicted and sentenced by the learned Trial Court. [6.] Learned Counsel for the appellant further submits that according to the victim, the appellant had committed bad acts and that what exactly was the bad acts has not been explained by the victim, which therefore cannot be the basis for a conviction under Section 6 of the POCSO Act. He submits that a Co- ordinate Bench of this Court in Criminal Appeal No.67/2023 (Hitesh Barman – vs- State of Assam and another) vide judgment and order dated 26.05.2026, held that the word ‘bad act’ by itself does not automatically connote that sexual intercourse or rape has taken place and the said word has to be seen with other Page No.# 6/33 attending facts and circumstances. Therefore, as the victim in the instant case has failed to explain as to what sort of bad act was committed upon her, the impugned conviction and sentence imposed upon the appellant cannot be sustained and should be set aside. [7.] Learned counsel for the appellant also submits that according to the victim, her father upon coming to learn about the incident, informed her uncle (Jetha) Sahabuddin over phone and Sahabuddin along with other village folks came to her house and apprehended the appellant. However, Sahabuddin was not examined as one of the Prosecution Witness during trial and therefore, it has rendered the evidence of the Prosecution to be most unreliable in order to sustain the conviction under Section 6 of the POCSO Act. [8.] Mr. S.K Poddar, learned counsel for the appellant further submits that the family of the victim wanted to make the son of the appellant and his daughter-in-law to stay in their house and due to which, there was a fight between the families. In the said process, the story of the appellant having raped the victim was made up. Learned counsel for the appellant submits that this can be seen from the fact that PW-4 did not notice anything unusual on the night of the incident. Further, PW-5 in his cross-examination stated that when he saw the victim on that day, he found her getting ready for school and that on seeing her, he could not make-out anything. PW-6 also in his cross- examination stated that after going to the house of the informant, he came to know that the appellant and the father of the victim were cutting paddy in the Page No.# 7/33 field that morning. That after coming from the field, the father of the victim raised hue and cry and the villagers assembled. Therefore, from the evidence of PW-4, PW-5 and PW-6 on one side and the evidence of the prosecutrix and her parents on the other side, there can be two views formulated. The learned counsel submits that if the version of the victim and her parents and the others is to be believed, there was no reason for the father of the victim and the appellant to go to the paddy field and cut paddy in the morning of 19.05.2024. Therefore, the learned counsel submits that in criminal jurisprudence, if two views are possible, the view which is favourable to the accused is to be adopted. Such being the case, by adopting the version of PW-4, PW-5 and PW- 6, the Prosecution has only failed to prove the charge against the appellant and for which reason, the appellant has to be given the benefit of doubt and be acquitted of the charge. [9.] In support of his submission, Mr. S.K Poddar, learned counsel for the appellant relied upon the case of Md. Shah Alam –vs- State of Assam, reported in 2026 Supreme (Gau) 493 and Sujit Biswas –vs- State of Assam, reported in 2013 12 SCC 406. [10.] Learned counsel for the appellant also submits that although as per Section 29 of the POCSO Act, a presumption can be made by the Trial Court as regards commission or attempting to commit an offence under Sections 3, 5, 7 and 9 of the POCSO Act, but the same does not absolve the Prosecution from its usual burden to prove the guilt of the accused beyond reasonable doubt. In Page No.# 8/33 this connection, learned counsel for the appellant relies upon the case of Latu Das –vs- State of Assam, reported in 2019: GAU-AS:17051-DB and 2019 SCC Online Gau 5947. Learned counsel for the appellant has also relied upon the case of State of Assam –vs- Dineswar Doley & Ors, reported in 2010 (5) GLT 477 to contend that omissions cannot be proved as contradictions as an omission does not contain a diction. Under the facts and circumstances, learned counsel for the appellant submits that the impugned Judgment and Order of conviction and sentence cannot be sustained and the same should be set aside and the appellant be acquitted from the charge. [11.] Ms. B. Bhuyan, learned Additional Public Prosecutor on the other hand submits that the evidence of the victim is cogent, reliable and trustworthy and she has been consistent in her examination under Section 164 Cr.P.C and during trial. Further, the medical evidence also goes to show that she was subjected to rape. Such being the position, no further corroboration is required to test the reliability or otherwise of the version of the victim. She further submits that minor contradictions or small discrepancies cannot be the ground to reject the evidence of the Prosecution. In fact, corroboration is not a sine- qua-non for conviction in a rape case. The sole testimony of the victim is sufficient to base the conviction, if the same inspires confidence of the Court. In the present case, there is no reason as to why the victim should implicate the appellant for having committed rape upon her, particularly when the appellant was a guest in their house and was also the father-in-law of her elder sister. The Page No.# 9/33 version of the victim therefore has to be trusted and the conviction of the appellant be sustained. In support of her submission, she has relied upon the case of State of Himachal Pradesh –vs- Manga Singh, reported in (2019) 16 SCC 759. She further submits that as per the medical examination report, there was absence of hymen when the victim was examined. The same goes to show that it is a clear indication that there was sexual penetration committed upon her by the appellant and therefore, the conviction of the appellant is clearly sustainable. Reliance in this regard is placed on the case of Satyapal –vs- State of Haryana, reported in (2009) 6 SCC 635. [12.] Ms. B. Bhuyan, learned Additional Public Prosecutor further submits that although the learned counsel for the appellant has submitted that there was delay in filing the F.I.R and for which reason, the case of the Prosecution is said to be rendered to be untrustworthy, but the fact remains that delay in itself is not fatal. She submits that incident happened on the night of 18.05.2024 and that the F.I.R was lodged in the evening of the next day, which by any means cannot be said to be an inordinate delay and fatal to the case of the Prosecution. She submits that there can be a variety of genuine causes for the delay in lodging the F.I.R. People in the rural areas may be ignorant of the need to inform the police of a crime without any lapse of time. Likewise, the family of the victim, who has noticed the occurrence, cannot be expected to act mechanically in quick in giving the report to the police. All that is required in such circumstance is that the Courts have to be cautious to scrutinize the Page No.# 10/33 evidence and separate the grain from the chaff. She therefore, submits that the circumstances leading to the filing of the F.I.R in the instant case cannot by any means be considered to be fatal to the case of the Prosecution considering the manner in which the events unfolded. In support of her submission, learned Additional Public Prosecutor relies upon the case of Tara Singh & Ors –vs- State of Punjab, reported in 1991 Supp (1) SCC 536 and Ravinder Kumar & Anr –vs- State of Punjab, reported in (2001) 7 SCC 690. [13.] Learned Additional Public Prosecutor further submits that apart from Section-29 of the POCSO Act providing for presumption, which can be taken by the Court as to certain offences, which includes offences under Sections 3, 5, 7 and 9, the presumption of culpable mental state can also be drawn by the Court under section 30 of the same Act. The Prosecution through the evidence of the prosecutrix, the informant and the Medical Officer amongst others, has been able to bring home the guilt of the appellant and therefore, it is for the appellant to discharge his burden now so as to prove that the alleged offence was not committed by him. Since the burden has not been discharged by the appellant, the learned Trial Court has rightly convicted and sentenced the appellant and therefore Court may not interfere with the impugned judgment and order. [14.] Mr. S.D Purkayastha, learned Amicus Curiae, appearing for the respondent No.2 adopts the argument of Ms. B. Bhuyan, learned Additional Public Prosecutor and submits that there may be minor variations and Page No.# 11/33 inconsistency in the evidence led by the Prosecution, but they are not sufficient for throwing out or rejecting the evidence of the Prosecution considering the fact that the prosecutrix/victim has been consistent in the manner in which the crime was committed upon her and therefore, the impugned judgment and order should be sustained and the appeal dismissed. [15.] We have heard the submissions made by the learned counsel for the rival parties and have perused the materials available on record. [16.] In order to appreciate as to whether the conviction and sentence imposed upon the appellant is sustainable or not, we may examine the evidence led by the Prosecution during trial. [17.] PW-1 is the victim herself, who deposed in her examination-in-chief that the incident took place about 08(eight) months back in their house and she was studying in Class-V and was aged 12 years. She had not attained her puberty at that time. The appellant came to their house during the day along with her elder sister. In the night, she along with her father and the appellant slept in the same bed and since one of their cow was missing from their cow- shed, her parents went out to search for the cow. It was during this time that the appellant gagged her mouth and opened her wearing apparels, laid on top of her and committed rape on her. She could not shout as the appellant kept gagging her mouth and he told her that if she informed her parents about the incident, he would cut her throat. Thereafter, her parents came home and the appellant left her, but he continued sleeping in the same bed. Her father came Page No.# 12/33 to the bed and found her trembling in fear and asked her what had happened and to which, she told him that her stomach was paining. Her father told her mother and her mother asked her about what had happened to her and then she reported the incident to her mother. Her mother then told her father about it and her father in turn informed her uncle (Jetha) Sahabuddin, who along with other village folks came to their house and apprehended the appellant. She stated that because of the incident, she felt pain in her vagina and blood also came out of it. She also suffered pain in her stomach and in her legs. Her mother then lodged the case before the police and they asked her about the incident and then forwarded her to the Court where her statement was recorded by the Magistrate. The police then sent her to Morigaon Civil Hospital for medical examination, where she had to be admitted for 06(six) days. [18.] PW-1 in her cross-examination, she stated that in the room where she along with the appellant and her father were sleeping, her mother and her two sisters were also sleeping in another bed. The appellant gagged her mouth at the time of the incident and although she tried to remove his hand, but could not succeed. She could not raise her voice nor make any sound at the time of the incident. The bed where her mother and sisters were sleeping was at a distance of about 12 feet from where they were sleeping. Her sisters were asleep at the time of the incident and did not get up when their parents have gone out for searching of the cow. [19.] PW-1 denied the suggestion that on the day of the incident, the Page No.# 13/33 appellant came to their house to take back his son and her elder sister and therefore a quarrel took place between him and her parents. She also denied the suggestion that because of the quarrel, her parents had lodged a false case against the appellant through her. She also stated that she had taken a bath and used soap for bathing. She also denied the suggestion that she suffered from fungal disease in her private parts on account of soap entering in her private parts while she was having bath. [20.] PW-2 is the mother of the victim and the informant of the case and in her examination-in-chief, she stated that her daughter, the victim was 12 (twelve) years of age and the appellant is the father-in-law of her elder daughter Ajiran Nesa. About 08(eight) months back, the incident had happened in their house at night. They had only one room in their house with two beds. She slept in one of the bed with her three daughters while in the other bed, her husband, the appellant and the victim slept. During the night, her husband informed her that their cow had been missing from the cow-shed and asked her to come out with him to search the cow. She accordingly, went with her husband to search the cow and after 20-25 minutes, she and her husband returned back and found the victim on the bed with the appellant and she was crying. When her husband asked her why she was crying, she stated that her stomach was paining. Her husband then asked her to take the victim outside as her stomach was paining. [20.1.] She then took the victim outside the house and found that she was not Page No.# 14/33 able to walk properly and she was trembling. She also found the face of the victim to have swollen up and after taking her outside, she asked her what had happened to her and to which, she told her that the appellant had committed bad act with her. She then asked her what bad act had been committed upon her and the victim told her that the appellant after gagging her mouth, inserted his private part on her private part. When she asked her as to why she did not shout, she stated that the appellant had gagged her mouth and also threatened to kill her if she shouts. She then told the incident to her husband and the victim was crying and complaining of pain in her stomach and legs and she was also unable to pass urine. Somehow they allowed the night to pass and in the early morning, one by one, neighbours assembled on hearing hue and cry of the victim and she herself and her husband informed them about the incident. [20.2] The assembled persons then caught the accused and tied both his hands to prevent him from fleeing away. She and her husband along with one of their daughter took the victim to Morigaon Police Station, where she lodged an Ejahar. The police then sent the victim to Morigaon Civil Hospital. She put her thumb impression in the Ejahar. The Doctor after prescribing medicines, allowed them to go home and on the next day, the police forwarded the victim to the Court and thereafter, the police again took the victim to Morigaon Civil Hospital, where she was admitted for 06(six) days. The victim was unable to walk at that time and one of her thighs had also swollen up. She was questioned about the incident by the police and also forwarded to the Court Page No.# 15/33 where her statements were recorded by the Magistrate. The police seized the birth certificate of the victim. After knowing about the incident from the victim, she reported to Sahabuddin and her husband. Till date, the victim sometimes complains of difficulty in passing urine and then they have to give her medicine to eat. The victim has not attained her puberty. The police also seized the wearing apparels of the victim and the bed-sheet on which she slept on that day with the appellant. [21.] In the cross-examination, PW-2 stated that distance between the two beds in their room would be about 22-24 feet. When her husband woke her up during the night to come out and search for the cow, her daughters who were sleeping with her did not wake up and she also found the victim as well as the appellant sleeping. The son of the appellant who had married her daughter was Nabi Hussain and that it was not a fact that he and her daughter used to stay in their house before the incident. She denied the suggestion that on that day when the appellant came to their house, there was a quarrel between them in view of the appellant’s attempt to take his son and daughter-in-law. She stated that her son-in-law was in Kerala at that time. She also denied the suggestion that in view of the quarrel, the village persons assembled and assaulted the appellant. Before lodging the Ejahar, the police came to their house and she could know that Sahabuddin and Umar Faruk had called the police over phone. When the police came, they found the victim in a serious condition and asked them to take her to hospital immediately. Page No.# 16/33 [22.] PW-3 is the father of the victim, who in his examination-in-chief deposed that the victim was presently aged 12 years and that the incident happened 6-7 months back in their house at night. The appellant came to their house for visiting them along with their daughter, who was married to the son of the appellant. He along with the victim and the appellant slept in one bed while his wife and his three daughters slept in the other bed. During the night, upon hearing some noise, he got up and found that one of their cow was missing from the cow-shed. He therefore, called his wife and together they went for searching the cow. After finding the cow, they came back and washed themselves. Thereafter, they proceeded to sleep on their bed. That is when, he found the victim crying and he asked her what had happened to her and to which, she replied that her stomach was paining. He then called his wife and asked her to take the victim outside and his wife did so. [22.1] Outside, the victim told her mother that the appellant had committed a great bad act upon her and when she asked what bad act was committed upon her by the appellant, she stated that the appellant had raped her. The victim could not walk and her condition was not good and she was crying. He then called his elder brother Sahabuddin and told him about the incident and sought his advice. The latter asked him to take the victim to the hospital. In the meantime, villagers assembled in their house and they came to know about the incident since the mother of the victim was crying. The VDP Secretary came and police also came and took them to the Police Station. The victim was sent Page No.# 17/33 to Morigaon Civil Hospital and the Doctor prescribed her one ointment and syrup to the victim. The next day, they again went to the Civil Hospital, where the victim was admitted for six days. His statement was also recorded by the Magistrate upon being forwarded by the police. [23.] In his cross-examination, he stated that they have one room in their house and there was no partition. The two beds available in the house were 6-7 feet apart. That his daughter and son-in-law did not stay in their house and he also denied that they had stayed there before the incident. He also denied the suggestion that the victim has fungal disease in her vagina before the incident. [24.] PW-4 is the sister of the victim and daughter-in-law of the appellant. She also deposed in her examination-in-chief similar to what her parents deposed earlier about having visited her home with her father-in-law and sleeping together with the mother and sisters while the victim slept in another bed with her father and her father-in-law. She came to know about the incident only in the morning at around 06:00 a.m. when she woke up and was informed about the incident by her mother. People had assembled and assaulted the appellant while the victim was taken to Civil Hospital and she was not able to walk properly at that time. She accompanied the victim and that she had sustained injuries in her legs. She was admitted to the hospital for 06(six) days because of the bad act committed upon her. The police forwarded her to the Court where her statements were recorded by the Magistrate. [25.] In her cross-examination, she denied about there being any quarrel Page No.# 18/33 between both the families in view of the attempt made by her father-in-law to take her and his son along with him. She also denied that she and her husband stayed in the house of their parents before the incident. She stated that her husband was in Kerala at that time. [26.] PW-5 in his Examination-in-Chief stated that the informant was his neighbour and upon hearing commotion in their house, he came out of his house and heard the victim’s father shouting and crying stating that the appellant had raped his daughter. He came to know about the details from the father of the victim. He saw the family members of the appellant bring police to the house of the informant. He was the VDP member of their village. The police interrogated the father of the victim and other village persons who were present and also the appellant. The police sought for the wearing apparels of the victim, but the same could not be provided since the victim had already taken bath. The appellant on being asked by the police stated that he did not do anything. Police then seized the bed-sheets of the bed on which the alleged incident took place and the clothes worn by the appellant. The police did not ask him about the incident. In his cross-examination, he stated that when he saw the victim on that day, he found her getting ready for school and on seeing the victim, he could not make out anything otherwise. [27.] PW-6 is the seizure witness, who witnessed the seizure of the birth certificate of the victim. In his examination-in-chief, he stated that he was in his house when the police from Morigaon Police Station called him to go to Page No.# 19/33 Korotipam saying that a person had been assaulted. On reaching the place, he found many persons in the house and he was told that the appellant had committed some bad act with the victim at night. The police soon came and took away the appellant. [28.] In his cross-examination, PW-6 stated that after going to the house of the informant, he came to know that the appellant and the father of the victim were cutting paddy in the field that morning. He came to know that the father of the victim after coming from the field, raised hue and cry and then the villagers assembled. [29.] PW-7 in his examination-in-chief stated that he knows the informant and her daughter and that the husband of the informant is his brother-in-law as he is the brother of his wife. He stated that the victim will be aged 12-13 years and that his residence is near the house of the informant with the road in between their house. The incident took place about 7 to 8 months back and he knows the appellant who is the father-in-law of the elder daughter of the informant. In the morning of the incident, at about 06:00 a.m., he went to the paddy field and at about 10:00-10:30 a.m., while he was still in the paddy field, he heard a commotion in the house of the informant and he went there. He saw many people assembled there and he came to know that the appellant had committed rape upon the victim. He did not enter the house of the informant as there were many people present at that time. Police asked him about the incident. Page No.# 20/33 [30.] PW-7 at that stage with the permission of the Court was declared as a hostile witness as he had deposed contrary to what he has stated before the police. He was therefore cross-examined by the Prosecution. In his cross examination, PW-7 stated that the father of the victim was his brother-in-law and they were neighbours. When any incident takes place in their house, the same is informed to him. He denied that the father of the victim informed him about the incident. The victim stayed in the hospital for about three days after the incident and he did not visit the victim in the hospital. After the victim returned back from the hospital, he did not go to their house to get information about the incident. He also denied of having informed the police that on 18.05.2024, the appellant and his daughter in law came to the house of the father of the victim to visit them and stayed the night there. That at midnight at about 11:00 -12:00, the victim’s father called him over phone and told him that the appellant had committed rape on the victim when he and his wife went outside to search for their cow. Further, they kept quiet in the night so that the appellant does not flee away. In the morning when the appellant was about to flee away in a bike, the villagers kept him confined in the house of his brother- in-law and informed Morigaon police. On being cross examined by the defence, PW-7 stated that police did not record his statement and that he did not state before the police what he had state in his examination-in-chief. That he did not ask the victim and her father about the incident. [31.] PW-8 is the Judicial Magistrate First Class-II at Morigaon, who Page No.# 21/33 recorded the 164 Cr.P.C statements of the victim. She stated that while being posted at Morigaon, on 21.05.2024, she received the case record of Morigaon P.S Case No.133/2024 from the Chief Judicial Magistrate, Morigaon for recording the statements of the witnesses i.e. PW-2, PW-3 and PW-4 under Section 164 Cr.P.C. After giving them time for reflection for one hour and upon being satisfied that they were free from any inducement, threat or compulsion, she recorded their statements and the witnesses gave their thumb impression on the recorded statements. In her cross-examination, PW-8 denied that the witnesses who had deposed before her were tutored by the police. [32.] PW-9 is the Investigating Officer, who deposed in his examination-in- chief that he was posted at Morigaon Police Station as S.I(P) on 19.05.2024. On that day, at 11:18 a.m., VDP of Korotipam, Rofiqul Islam informed the police station that the appellant had committed rape on the victim and the appellant was kept confined in a house in the village. The said information was entered in the General Diary as GDE No.05 dated 19.05.2024. On the basis of the said GD Entry, S.I. Sabir Ali was entrusted to look into the matter. Since he was the Crime Scene Officer of the district at that time, S.I Sabir Ali took him along to Korotipam at about 11:22 a.m. and they reached the house of the victim at 11:45 a.m. and found the victim sitting in a Maruti Alto car with her parents and was ready to go to the hospital. She was crying because she was in pain. On interrogation, they came to know the actual name of the victim and they found 50 persons from the village had assembled there at that time. They Page No.# 22/33 inspected the place of occurrence, which was on a bed inside the room of victim’s father where the victim slept at night with the appellant. They seized the bed sheet and they searched for the wearing clothes of the victim, but found that the same had already been washed. They however, seized the washed and dried up clothes of the victim and her birth certificate. [32.1] The appellant was kept confined in a nearby house of the victim and they went there and seized the underwear and Lungi of the appellant. They interrogated Alimuddin and PW-7. They apprehended the appellant and brought him to the police station. The victim who was in the Maruti Alto car also followed them to the police station. Then he along with L/Nk Ila Boro took the victim to Morigaon Civil Hospital for medical examination and thereafter they came back to the police station along with the victim. On the same day at 06:37 p.m., the mother of the victim Banesa Khatun lodged the written Ejahar and after registration of the same, the investigation was entrusted to him. He interrogated the informant as well as the victim. The victim was in pain at that time and could not properly state about the incident, but whatever was possible was recorded by him. [32.2] During the night, the victim was kept at ‘Sakhi’ - One Stop centre along with her mother. He also recorded the statements of the father and the elder sister of the victim in the police station on the day itself. The next day, the appellant was forwarded to the Court and the victim was produced before the Court on 20.05.2024 for recording her statement under Section 164 Cr.P.C Page No.# 23/33 along with her mother and her elder sister Ajiran Nessa. As the victim was found to be in pain and was crying, the Court directed to take her to Hospital before recording her statement. The statements of the victim and Ajiran Nessa were recorded under Section 164 Cr.P.C and the victim was taken to Morigaon Civil Hospital and she was admitted there. [32.3] On 22.05.2024, it was known from the hospital authority that the condition of the victim had improved and that she was likely to be released on 23.05.2024. On being released on that day, she was produced before the Court for recording her statement under Section 164 Cr.P.C. The victim was then released to her guardian in Zimma under the Court’s order. On 27.05.2024, a prayer was made in the Court for collecting the blood sample of the appellant and accordingly sample was collected on 10.06.2024. On 11.06.2024, the seized articles along with the blood sample were sent to FSL for examination and on 15.06.2024, the Medical Report of the victim was collected. On 24.06.2024, he submitted the charge-sheet against the appellant under Section 376(3) IPC read with Section 6 of the POCSO Act with permission to file supplementary charge-sheet on receipt of FSL report. He received the copy of the FSL report in the official email of Superintendent of Police, Morigaon. PW- 9 exhibited a copy of the GD Entry, the Ejahar, signatures, sketch map, seizure list, birth certificate, arrest memo and the charge-sheet. [33.] PW-9 was cross-examined by the defence, wherein he stated that the alleged incident took place on 18.05.2024 at 11:30 p.m. as per the Ejahar. Page No.# 24/33 Information was received on 19.05.2024 at 06:37 p.m. The cause of delay has not been mentioned in the Ejahar. The house of the informant consisted of one room with a partition in between and the beds were on both sides with the partition in between. He also stated that the partition in between the room was not stated in the Case Diary and he also stated that he did not mention the dimension of the room in the Case Diary. He did not record the statement of Alimuddin and Batin mentioned in the sketch map. The informant handed over the discharge slip of Morigaon Civil Hospital of the victim and the same is available in the Case Diary. [33.1] PW-9 further stated that PW-1 did not inform him about the sexual act committed upon her by the appellant and about her father having informed her uncle Sahabuddin and the villagers coming to their house to apprehend the appellant. PW-9 also denied of having being informed by PW-2 as to how the victim had narrated the incident to PW-2. Likewise he denied of being informed by PW-3 what he had asked to his wife about the bad act committed by the appellant upon the victim. [34.] PW-10 is the Medical Officer, who had examined the victim. In her examination-in-chief, she stated that on 19.05.2024 at about 12 p.m., while she was working as a Medical and Health Officer-I at Morigaon Civil Hospital, she examined the victim in connection with Morigaon Police Station Case No.133/2024. The victim was said to have being raped by her uncle when both her parents were outside to search their cow on 18.05.2024 at around 11:00 Page No.# 25/33 p.m. The finding and remarks of the PW-10 was abstracted in her examination- in-chief. The opinion rendered by PW-10 was that the age of the victim is between 8 to 14 years as per X-Ray report, there was evidence of recent sexual intercourse at the time of examination and that the patient was admitted on 20.05.2024 and treated by Dr. Rekha Bhuyan of O&G Department. In her cross-examination, she stated that the inflammation which was found, can take place because of fungal infection/allergy. [35.] PW-10 thereafter was further examined by the Prosecution wherein she stated that the victim came to the hospital on 19.05.2024 at 12:00 p.m. and she examined her and advised medical laboratory examination and Gynea consultation. The laboratory investigation was over on that day by the evening and the lady police took her home and brought her back to the hospital on the next day i.e. 20.05.2024. She was first taken to the emergency ward at 01:30 p.m. although she should have been taken to the Gynea ward. Dr. A. Jalil examined the victim in the emergency ward and admitted her at the Gynea department where Dr. Rekha Bhuyan treated her for three days in the hospital. She was thereafter discharged from the hospital after three days. In her cross examination, she stated that Bed head tickets and advice slips do not generally contain police requisition numbers as they are part of the continuous process of treatment. [36.] From the evidence led by the Prosecution witnesses, more particularly, PW-9, who was the Investigating Officer of the case, it was at around 11:18 Page No.# 26/33 a.m. that an information was received at Morigaon Police Station from Rofiqul Islam, VDP of Korotipam over phone that the appellant had raped one girl and that he was kept confined in a house in the village. The said information was entered in the General Diary as GD No.05 dated 19.05.2024. On the basis of the said GD Entry, S.I Sabir Ali was entrusted to look into the matter. What followed thereafter was that the Investigating Officer of the case as well as S.I Sabir Ali went to the house of the victim upon receiving the information to take follow up action. In the process, they made searches and seizures of the wearing apparels of the victim as well as of the appellant besides the birth certificate. The appellant was apprehended and was brought to the police station while the victim was taken to Morigaon Civil Hospital for medical examination. It was only after returning from the Civil Hospital that the mother of the victim at 06:37 p.m. lodged the written Ejahar. Therefore, it can be seen that the attending facts and circumstances was the reason for the delay in filing the F.I.R. Nevertheless, on the basis of the telephonic information, GD Entry had already been made in the forenoon of 19.05.2024. [37.] The Apex Court in Tara Singh & Ors (supra) held that delay in lodging of the F.I.R by itself is not fatal to the case of the Prosecution. That it was a normal human nature in the context of Indian rule of conditions that such delay often occur. In the absence of any indication of fabrication and false implication of the accused, the version given in the F.I.R and later substantiated by evidence, cannot be rejected merely on the grounds of delay in filing the Page No.# 27/33 F.I.R. Similarly, the Apex Court in Ravinder Kumar & Anr (supra) in the given facts of that case held that besides other factors, the kith and kin of the deceased might take some appreciable time to regain certain level of tranquility of mind from seductiveness or temper for moving to the police station for the purpose of furnishing the requisite information. What was therefore noted was that delay in giving the F.I.R by itself cannot be a ground to doubt the case of the Prosecution. [38.] In the light of the principles laid down by the Apex Court, it cannot be said that non-filing of the F.I.R immediately in the morning of 19.05.2024 in the instant case can be said to be fatal to discredit the case of the Prosecution. Therefore, the objection on the delay in filing the F.I.R cannot be accepted and is therefore rejected. [39.] The Apex Court in a catena of decisions has held that the evidence of a rape victim is placed at par or even in a higher pedestal than that of an injured witness for the reason that such a crime typically occurs in private and the consistent and reliable testimony of victim of such crimes requires no external corroboration to secure a conviction. In fact, it rather adds insult to injury if the victim’s statement which inspires absolute confidence is to be disbelieved. In State of Himachal Pradesh –vs- Manga Singh (supra), the Apex Court held that corroboration is not a sine-qua-non for conviction in a rape case, if the evidence of the victim does not suffer from any basic infirmity and the ‘probability factor’ does not render it unworthy of credence. Further, minor Page No.# 28/33 contradictions or small discrepancies should not be a ground for disbelieving the evidence of the prosecutrix. [40.] Coming to the present case, the victim who was examined as PW-1 during the trial, identified the appellant to be the perpetrator of the crime. She stated that she was aged about 12 years and was studying in Class-V when the incident happened. Her elder sister and her father-in-law came to their house and spent the night. She, her father and the appellant slept in one bed while her mother and her three other sisters slept in the other bed in their house. While her parents upon finding one of their cow missing, went out searching for it, the appellant gagged her mouth, opened her wearing apparels and committed rape upon her. Although she tried to shout, but the appellant kept on gagging her mouth and threatened to cut her throat if she reported the incident to her parents. When her parents returned, her father found her trembling and asked her what had happened. She then replied that her stomach was paining. Her father then told her mother to take her out and ask her what was bothering her. The victim upon being asked, informed her mother that the appellant had committed rape upon her. The victim also stated that she suffered pain in her stomach and in her legs and also in her vagina because of the incident. [40.1] It may be seen that the victim in her statements recorded under Section 164 Cr.P.C had made similar narration of the incident. She stated that the appellant gagged her mouth and removed her panty and after climbing on top of her, committed inappropriate acts with her. She wanted to scream in pain, Page No.# 29/33 but could not because the appellant had gagged her mouth. She was crying out of fear and the appellant threatened her to cut her throat if she told anybody about the incident. She also told her father that her stomach was aching while he asked her why she was crying and what had happened. When her mother took her outside and saw her shaking with fear, she asked her what had happened and to which she stated that the appellant had committed inappropriate acts with her. At that time her whole body was aching including her stomach and vaginal area etc. Later, she was taken to hospital. It may be seen that the statements of the victim in her statements under Section 164 Cr.P.C as well as during the trial is consistent. [41.] Learned counsel for the appellant has submitted that the victim has spoken about inappropriate acts committed upon her and therefore that by itself would not mean that the victim was subjected to rape. In this connection, he has relied upon the case of Hitesh Barman (supra), where a Co-ordinate Bench of this Court was of the view that the word ‘bad act’ does not automatically connote that sexual intercourse or rape has taken place. The word ‘bad acts’ has to be seen with other attending facts and circumstances. [42.] In the present case, it may however be seen that although the victim has stated that inappropriate acts had been committed upon her without actually saying that she was raped, she has also stated that the appellant gagged her mouth, removed her panty, climbed on top of her and commit inappropriate acts upon her. As a result, she felt pain in her whole body, stomach and in her Page No.# 30/33 vaginal area. This was the statement made under Section 164 Cr.P.C. During trial, the victim also stated that the appellant inserted his urine passing organ inside her urine passing organ and she could not shout as the appellant kept gagging her mouth. As a result, she felt pain in her urine passing organ and blood also came out of it. She also suffered pain in her stomach and in her legs because of the incident. Therefore, whether it be the word ‘bad act’ or ‘inappropriate act’, it is clear that the appellant had committed rape upon the victim and therefore, the case of Hitesh Barman (supra) cannot be applied to the instant case. [43.] PW-10, who is the Medical Officer, who examined the victim, in her deposition before the Trial Court abstracted the medical report and finding and also opinion rendered by her after examining the victim. According to her, the age of the victim was between 8 to 14 years as per X-Ray report, there was evidence of recent sexual intercourse at the time of examination and the victim was admitted on 20.05.2024 and treated by Dr. Rekha Bhuyan of O&G Department. Although in her cross-examination, she stated that the inflammation could take place because of fungal infection/allergy, but in the discharge slip by which the victim was discharged on 23.05.2024, the diagnosis recorded is “O/E- Mild tenderness on lower abdomen & no bleeding Plv, at present. Please continue (illegible)”. The victim also appears to have been prescribed Zincovit Syrup and Paracetamol besides remarking “There is pain in lower abdomen”. Therefore, the statements made in the cross examination of Page No.# 31/33 the inflammation being possible because of fungal infection or allergy appears to be out of the context and has nothing to do with the circumstances to which the victim was subjected to. [43.1] There is consistency in the version of the victim before and during trial and having regard to what the Apex Court has held in State of Himachal Pradesh –vs- Manga Singh (supra), corroboration of the version of the prosecutrix will not be required unless there are compelling reasons which necessitates the Courts to insist any corroboration on her statement. Although corroboration may not be required under the facts and circumstances of the case, but it may be seen that the version of the victim is only corroborated by the evidence of her parents who were examined as PW-2 and PW-3 and also the evidence of the Medical Officer, who examined the victim and she was examined during the trial as PW-10. Therefore, even if corroboration was required, one would not be required to search for the same since there are materials readily available from the version of PW-2, PW-3 and PW-10. [44.] Learned counsel for the appellant has also tried to impress upon the Court that there was some sort of quarrel between the parents of the victim and the father-in-law of their elder daughter (appellant) since the appellant did not want his son and his daughter-in-law to stay in the house of the victim and her parents. This proposition cannot be accepted for the reason that it is in evidence that the elder sibling of the victim and her husband were not staying in the house at all. In fact, as per the elder sibling of the victim, who was examined as Page No.# 32/33 PW-4, her husband was in Kerala at the relevant time. Further, it was PW-4 and her father-in-law, who had come to stay in the house of the victim and her parents. Therefore, the reason for quarrel on this account cannot be accepted. In fact the quarrel which was said to have happened on the next morning of the incident appears to be after what the appellant did to the victim came to be known to the parents of the victim as well as others. [45.] Therefore, having come to the above finding and conclusions, we are of the considered view that the conviction of the appellant can safely be sustained on the basis of the evidence of the victim, her parents and the Medical Officer amongst others. However, while saying so, we have noticed that the appellant has been sentenced to undergo rigorous imprisonment for life, which is an imprisonment for the remaining of his natural life and to pay a fine of Rs.30,000/- with a default clause. Having regard to the fact from the materials available on record that he has no previous criminal record and also considering his age, we are of the considered view that the ends of justice would be met if the sentence of imprisonment is modified to that of a rigorous imprisonment for a term of 20(twenty) years while other conditions remaining the same. [46.] It is ordered accordingly. [47.] The appeal is accordingly dismissed, but with the aforesaid modification on the sentence. Page No.# 33/33 [48.] For the valuable service rendered by the learned Legal Aid counsel Mr. S.D Purkayastha, he shall be entitled to remuneration as per the rates fixed in this regard. [49.] Registry to send back the trial Court’s record along with a copy of this judgment. JUDGE JUDGE Comparing Assistant