Page No.# 1/14 GAHC010109202025 2026:GAU-AS:9770 In the Gauhati High Court (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRL. A. (J) 28 OF 2026 Kamal Biswas @ Kamal Das, Aged about 31 years, Son of Pramod Biswas, Resident of vill-Sahara (Nr. Khetri Rly Station), P.S.Khetri, Dist.-Kamrup (M), Assam. …… ..Petitioner/appellant -Versus- 1. The State of Assam, Represented by the learned Public Prosecutor. 2. Sri Jagat Sarkar, Son of Sri Ashutosh Sarka, Resident of Salana, P.S. Khetri, Dist.- Kamrup (M), Assam. …… .. Respondents Page No.# 2/14 – B E F O R E – HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Advocate for the petitioner/appellant : Ms. N. Choudhury, learned counsel. Advocate for the respondents : Mr. K. Baishya, learned Additional public Prosecutor and Ms. T. Parasar, learned Amicus Curiae. Date on which Judgment is reserved : 24.06.2026 Date of Hearing : 24.06.2026 Date of Judgment and Order : 17.07.2026 Whether the pronouncement is of the Operative part of the Judgment? : No. Whether the full Judgment has been pronounced? : Yes. JUDGMENT & ORDER (CAV) Heard Ms. N. Choudhury, learned counsel for the appellant. Also heard Ms. T. Parasar, learned Amicus Curiae for the respondent No.2 and Mr. K. Baishya, learned Additional Public Prosecutor appearing for the State of Assam. 2. This is an appeal under Section 415 (2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned Judgment and Order dated 08.08.2018 passed by the learned Special Judge, Kamrup (M) in Sessions Case No. 68/2016, wherein the appellant was sentenced to undergo Rigorous Imprisonment for 10 (ten) years and to pay find of Rs.20,000/- (Rupees twenty thousand) only in default to rigorous imprisonment for 6 (six) months. 3. The facts constituting the case of the prosecution, as emerged during trial, are that on 11.12.2015 at about 4:00 p.m, while the 10 year old daughter (name withheld and herein after referred to a Miss ‘X’) of the informant, was Page No.# 3/14 playing in the field, the accused person named above induced her and also forced her to go to the nearby house of Sabita Deb and thereafter committed penetrative sexual assault on her. On the next day, i.e. on 12.12.2015, the incident was reported to her parents. 4. On the basis of the written FIR (Ext.1), filed by her father (name withheld), Khetri P.S Case No. 190/15 was registered under Section 8 of the Protection of Children from Sexual Offence Act, 2012, in short, POCSO Act, 2012. During investigation of the case, I/O recorded the statements of the witnesses, including the victim. The victim was sent for medical examination and her statement was also recorded under Section 164 of the Cr.P.C. The accused person was arrested and he was forwarded to judicial custody. On completion of the investigation, the accused person was charge-sheeted under Section 8 of the POCSO Act, 2012. 5. After filing of the charge sheet, the accused person was allowed to go on bail. Copies of the relevant documents were furnished to the accused, in compliance to the provision of Section 207 of the Cr.P.C. On consideration of charge, charge under Section 6 of the POCSO Act, 2012 was framed on 05.05.2016. Charge was read over and explained to the accused to which he pleaded not guilty and stood to face the trial. 6. To bring home the charge, prosecution examined, as many as, 8 (eight) witnesses on its behalf including the Medical Officer and Investigating Officer. Prosecution also exhibited some of the documents. The defence plea was of complete denial of any guilt. The statement of the accused was recorded under Section 313 of the Cr.P.C., in which too, the accused person pleaded his innocence and stated that he was implicated falsely in this case. Defence Page No.# 4/14 adduced no evidence on its behalf. 7. At this stage, the evidence of the case may be discussed. 8. PW.2 is the victim herself (name withheld) and she is the principal witness in this case. It appears from her testimony that she knew the accused person for long. She also testified that on the date of occurrence, around 4 pm, she was playing in a field, away from her house, along with her brother, who was aged about 6 years at that time. She could not specify the month and year of the occurrence, but confirmed that it was the 11th day of the month. Her testimony reveals that when she was playing in the field, the accused person came there and asked her to bring some tobacco from the shop at the railway station, a little distance from the place. She also testified that the accused person gave her Rs.10/- to purchase the same. She narrated that she started towards the railway station when the accused person pulled her hand and took her to the house of one Sabita Deb (PW.6). She also testified that at that time there was none at the house of Sabita Deb and he gagged her mouth and thereafter he inserted his penis into her vagina forcibly. She further added that she shouted for help and then the accused person left her. She also testified that after a shortwhile, said Sabita Deb returned back home and then she returned to her house and narrated the incident to her mother. She also testified that her mother informed the matter to her father and her father lodged the FIR against the accused person. She also stated that police sent her for medical examination and her statement was also recorded before the Magistrate. She proved Ext.3 as her statement and Ext.3(1), Ext.3(2) and Ext.3(3) as her signatures. During cross examination, she specifically stated that earlier the accused person never had any talk with her. She also specifically stated that she Page No.# 5/14 did not go to the house of Sabita on her own and the accused person had taken her to said house. Her further assertion is that after the occurrence, she immediately came back to her house. She also stated that Sabita resides nearby the railway station. 9. PW.1 is the father of the victim. Admittedly he is not an eye witness of the occurrence and his evidence reveals that the occurrence took place on 11.12.2015 in the evening hour. He testified that he heard from one Maya Kundu that the accused person had forcibly taken his daughter to the house of Sabita Deb and had committed rape of her. Maya Kundu stated to him that she had seen his daughter coming out from the house of Sabita Deb. He also added that thereafter he lodged an FIR at Khetri P.S and proved Ext.1 as the said FIR. He also reveals that police sent the victim to hospital for medical examination and added that the victim also gave her statement before the Magistrate. He further reveals that the FIR had been written by someone at the police station. He added that at the time of the occurrence, his daughter was aged about 10 years and she was a student of Class V. During cross examination, the witness stated that the accused person is his neighbour, but he never visited their house. 10. PW.3 is the brother of the victim girl. He was only 6 years of age at the relevant point of time. He testified before the Court that about one month back, one day he was playing cricket with his sister in the field and then the accused person went there and called his sister and asked her to bring tobacco (sada) for him. He added that his sister started towards the railway station to purchase the tobacco and then the accused took her away to the house of Sabita. He was a child witness and could not state anything about the occurrence. However, he Page No.# 6/14 made it clear that the accused person took his sister to the house of Sabita Deb. 11. PW.4 is the mother of the victim and she also knows the accused person. She testified that the occurrence took place about one year back on the 11th day of August. She further testified that at the time of occurrence she was not at home and went to attend a meeting. Her testimony further reveals that around 6 pm, she returned back home and then she saw the victim sleeping in the house. She specifically stated that on the following day, the victim went to the school and then Maya Kundu came to her house and she informed her that her daughter had been forcibly taken to the house of Sabita and thereafter the accused had committed rape on her. She testified further that then she inquired about the incident from the victim and the victim narrated the incident to her. She specifically stated that the victim was taken to the house of Sabita Deb by the accused person forcibly and he also committed rape on her. During cross examination, the witness admitted that she was not the eye witness of the occurrence. She also stated that accused Kamal Biswas never visited their house. She further added during cross examination that accused Kamal Biswas was a married person, but he has no children. 12. The evidence of PW.6 Sabita Deb is also Important, because in her house, the offence had allegedly occurred. She testified that the age of the victim was 10/12 years at the time of occurrence. Her testimony reveals that in 2015, one day she went out at noon leaving her daughter in the house. She added that her daughter closed the door from outside and thereafter left the house unattended for playing games. She made it specific that her daughter did not lock the door. She also testified that she came back to the house at about 5 pm and after coming back, she called her daughter loudly. She also added that Page No.# 7/14 her daughter was waiting at the door of a neighbour and the woman of that house was also there. She further deposed that she entered the house for changing her clothes and saw that her bed was in disarray. Her further testimony reveals that then she asked her daughter loudly why the bed was in such a scattered and disorganized condition, but she did not enter the house and told her from outside that she had no knowledge. She deposed that as she removed her saree for wearing the nighty, she noticed that accused Kamal Biswas was sitting at a corner near the door. She discloses that she could not recognize him at first in the darkness and raised alarm and then the accused person came out. She also added that she scolded the accused for keeping him concealed inside the house and forced him out of the house and thereafter changed her clothes and went to bring back the cattle. She reveals further that after bringing back the cattle, she noticed that accused Kamal Biswas was there till then and she again scolded him and thereafter the accused person left the place. She deposed further that after the accused person had left the place, the woman of the opposite house, namely, Maya Kundu told her that accused Kamal Biswas had entered into her house with the victim girl. She testified further that hurriedly she entered into the house and saw that her bed was wet and as she was changing the bed sheet, she noticed that one payal of a small girl was lying there. She added that on that night she did not disclose the incident to anyone and on the next day in the morning at about 8:30 am, she found the victim girl and asked her why she had come to her house on the previous day. She narrated that the victim girl started to cry and told her that accused Kamal had dragged her to the house. She again reveals that as she asked her whether the accused had done anything to her, she again cried and told her that the accused person had committed rape on her after removing her clothes. She further Page No.# 8/14 stated that on being asked, the victim also told her that she did not report anything to her mother. She added that she scolded the victim and later on Maya Kundu reported the incident to the mother of the victim. She added further that the parents of the victim filed a case against Kamal Biswas and police came to her house and recorded her statement. She also added that police also went to the house of Maya Kundu. She asserted further that she narrated the incident to police and police arrested the accused person. During cross examination, the witness stated that she had no talking terms with accused Kamal Biswas at the time of occurrence, however she stated that prior to that, accused person had a visiting terms with her house. She also stated that later on, a quarrel was picked up with Kamal Biswas and since then the accused person stopped coming to her house. She stated during cross examination that she did not see the victim in her house and only saw the accused person there keeping him concealed. She specifically stated that the payal, recovered by her, belongs to the victim girl and saw the said payal with her even before the date of incident. Besides, she saw the accused person keeping himself concealed inside the house after the incident. She also noticed her bed in disorganized condition and further she found the bed sheet wet after the incident. She found the payal of the victim girl in her house at the time of changing the bed sheet. She also asked the victim girl about the incident on the next day and the victim girl was seen by her crying and she narrated the entire incident to her. 13. PW.7 Maya Kundu is also a vital witness in this case. According to PW.1 and PW.4, she had reported the incident to them. Her testimony reveals that she knows the victim girl and the victim girl was aged about 10/11 years when the occurrence took place about 3-4 years back. She testified that on the date Page No.# 9/14 of occurrence, she had gone to the market at about 2 pm and when she was coming back, she heard cry of girl inside the house of Sabita Deb. She also reveals that her house is just opposite to the house of Sabita Deb and hearing the sound, she went near the house, but came back again as there was no further sound. She added that the door was closed and after sometimes, she saw the victim girl coming out from the house. She added that the victim girl was crying and she asked her about what had happened. She also testified that the victim told her that accused Kamal had committed rape on her in the house of Sabita Deb. The witness also stated that the victim had also told her that the accused person had gave her 10 rupees note and thereafter did the bad act. She further testified that she held her hand, but the victim left for her house. The witness also testified that after a little while accused Kamal tried to go out, but on seeing her, he again entered into the house and did not go out. The witness further testified that about 5/5:30 pm, Sabita Deb came to the house. She stated that on seeing her, she reported the entire incident to her and also told her that accused and the victim had done bad act in her house and further told her that she saw the incident. She further reveals that Sabita Deb also saw Kamal in her house and after entering into the house, she saw that her bed was disarrayed. She further corroborates that she also reported the incident on the next day to the mother of the victim. She added that she could not go to the house of the victim on that very day, because she was not feeling well. Defence declined to cross-examine this witness. 14. P.W.5, Dr. Richa Pandey, Assistant Professor in the department of Forensic Medicine, GMCH, testified that on 13.12.2015, she examined the victim girl in connection with Khetri P.S Case No. 190/15 u/s 8 of the POCSO Act. Her evidence discloses that during genital examination although her hymen was Page No.# 10/14 found intact, redness was present in the margin, inflamed tender on touch. In her opinion, there was no evidence of recent sexual intercourse detected on her person, however, findings were suggestive of attempted forceful penetration. She also testified that injury was found on her private parts. She further testified that the age of the victim girl was above 12 years and below 14 years. Ext.4 is her report and Ext.4(1), Ext.4(2) and Ext.4(3) are her signatures. 15. Ms. N. Choudhury, learned counsel appears on behalf of the appellant submits that there are several discrepancies in the prosecution evidences, which have not been taken into account by the learned Trial Court. It is submitted that P.W.3 i.e. the father of the victim stated that he heard of the incident from Maya Kundu (P.W.7) whereas the victim had deposed that she had told of the incident to her mother, who in turn told her father, who lodged the FIR. Furthermore, the victim stated that after the incident P.W.6, Sabita returned home but P.W.6 in her own testimony stated that when she returned home she did not see the victim there. 16. Furthermore, P.W.6 deposed that one payal (anklet) of the victim was found by her in her house after she returned but the Investigating Officer did not seize any such anklet and therefore the version of the P.W.6 cannot be believed. 17. Further as far as the medical evidence is concerned, Ms. N. Choudhury, learned counsel pointed to the finding of the medical officer who stated that she found no evidences of recent sexual intercourse and therefore, the version of the victim is not supported by the medical evidence. 18. Mr. K. Baishya, learned Addl. P.P and Ms. T. Parasar, learned Amicus Curiae representing the respondent No.2/informant submitted that the intense Page No.# 11/14 contradictions in the statements of the above witnesses are of a minor nature and does not discredit the prosecution case. 19. A perusal of the evidence of the victim would show that despite her tender years, which was about 12 years, she clearly deposed to the main factum of the occurrence as to how the accused took her to the empty house of P.W.6 and then inserted his penis into her vagina. Her evidence before the Court is substantially corroborated by her statement before the Magistrate and no material contradiction in this regard would be shown by the defence during cross-examination. Neither could the victim be contradicted in any manner with regard to her previous statement before the Investigating Officer. 20. Thus situated the evidences of the victim alone, which appears to be of a sterling character would be sufficient to bring home the guilt of the accused but as can be seen from the evidences of the remaining witness, more particularly, the evidence of P.W.3, who is the brother of the victim girl, who was aged about 6 years only at the point of time had also deposed that the accused person called his sister and asked her to bring tobacco and that thereafter the accused took her away to the house of Sabita. He could not elaborate further but certainly corroborated the deposition of the victim that the accused took her to the house of Sabita Deb. 21. Furthermore, P.W.7 Maya Kundu is the another significant witness who revealed through her testimony that when she was returning from the market she heard the cry of a girl inside the house of Sabita Deb and after some time she saw the victim girl coming out from the house crying and on being asked the victim told her that the accused committed rape on her in the house of Sabita Deb. Therefore, the victim reported the matter immediately to P.W.7, Maya Kundu and therefore, her evidence assumes great significance for the Page No.# 12/14 purpose of corroborating the version of the victim. The presence of the accused appellant at the place of occurrence, as can be seen has been confirmed by the P.W.6 Sabita Deb who deposed that she found the accused hiding in her house. 22. As regards the medical evidence, although the Medical Officer deposed that she did not find evidence of recent sexual intercourse, it is also seen from the medical evidence that there was redness around the margins of the hymen which though was not ruptured, which was suggestive of attempted forceful intercourse and injury was found on her private parts. 23. This aspect of the matter has been dealt with rather thoroughly by the learned Trial Court by referring to the decision of the Apex Court in Aman Kumar v. State of Haryana, reported in (2004) 4 SCC 379, wherein it was observed as follows:- "Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893). It is well known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. [See S.P. Kohli (Dr) v. High Court of Punjab and Haryana [(1979) 1 SCC 212: 1979 SCC (Crl) 252]) In rape cases, If the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not Page No.# 13/14 necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC." Page No.# 14/14 24. From the above, it follows that mere absence of tear of the hymen or lack of evidence of recent sexual intercourse when the victim is examined after 2 days of the occurrence is not sufficient to dislodge the unshaken oral testimony of the victim. 25. As far as the discrepancies in the evidence as to the persons who reported the incident to the father of the victim and whether the P.W.6 saw the victim in her house when she returned or not, the same are of a minor nature which bales into insignificance when considered in the light of the unshaken testimony of the prosecution witnesses. Similarly failure of the Investigating Officer to recover the anklet of the victim from the house of P.W.6does not per se negate the truth of the statement of the P.W.6 that she found that the said anklet thereon. 26. In view of all the above discussion, I do not find any infirmity in the findings of the learned Trail Court and accordingly, the appeal is held to be devoid of merit and therefore stands dismissed. The Judgment and sentence imposed by the learned Trial Court stands affirmed. 27. Send back the LCR. JUDGE Comparing Assistant