Gauhati High Court
Page No.# 1/14 vs The State Of Assam And Anr on 10 March, 2026
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/14
GAHC010110712022
2026:GAU-AS:3652-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./110/2022
PIYAR UDDIN LASKAR
S/O AMIN AHMED LASKAR
RESIDENT OF VILLAGE DHANIPUR, PO AND PS LALA, DIST HAILAKANDI,
ASAM 788163
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:NOZIR AHMED CHOUDHURY
S/O LATE ASADDAR ALI CHOUDHURY
RESIDENT OF WARD NO. X
LALA TOWN
PS LALA
DIST HAILAKANDI
ASSAM 78816
Advocate for the Petitioner : MR Z ALAM, MR. T A RAHMAN,MS. S NAZNEEN
Advocate for the Respondent : PP, ASSAM, MR. M H RAJBARBHUIYAN,MS. S RASUL (r-
2),MRS. R CHETRI (r-2)
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE PRANJAL DAS
For the Appellant : Mr. Z. Alam
For the Respondent(s) : Ms. A. Begum, Additional Public Prosecutor,
Assam and Mr. M.H. Rajbarbhuiyan.
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Date of Hearing : 10.03.2026
Date of Judgment : 10.03.2026
JUDGEMENT & ORDER
(M. Zothankhuma, J)
Heard Mr. Z. Alam, learned counsel for the appellant. Also heard Ms. A.
Begum, learned Additional Public Prosecutor for the State and Mr. M.H.
Rajbarbhuiyan, learned counsel for the respondent No. 2.
2. This appeal is against the impugned judgment dated 07-04-2022, passed
by the learned Special Judge, Hailakandi in Special (POCSO) Case No. 12 of
2018, arising out of Lala P.S. Case No. 212 of 2018, by which the appellant has
been convicted under Section 4 of POCSO Act 2012, r/w Section 377 IPC, for
having committed an offence of penetrative sexual assault upon the victim boy,
aged 11 years.
3. The learned counsel for the appellant submits that the evidence of the
victim (PW- 1) is not corroborated by the evidence of his two friends (PW- 3 and
PW- 5). He also submits that the evidence of the Doctor (PW- 4) is to the effect
that semen had been found in the anal orifice of the victim, which was not sent
to the FSL for examining whether it was human semen or otherwise. In any
event, the evidence of PW- 1 is to the effect that the appellant had put his penis
into the mouth of PW- 1 and had inserted his finger into the anus of PW-1. As
only the finger of the appellant had been inserted into the anus of PW-1, there
was no explanation as to how semen could have been found in the anus of the
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victim (PW- 1). He also submits that the statement of the victim (PW-1) made
under section 164 CrPC has not corroborated the testimony of the victim made
before the learned Trial Court. He accordingly submits that due to the above
reasons, the learned Trial Court erred in convicting the appellant under section 4
of the POCSO Act, read with section 377 IPC.
4. Ms. A. Begum, the learner Additional Public Prosecutor, on the other hand
submits that the testimony of the victim has been corroborated by his statement
made under section 164 CrPC. Further, the evidence of the medical doctor (PW-
4), shows that he found semen stain and blood stain in the anal orifice of the
victim. There was also tenderness in the external genitalia. Further, on
examining the oral cavity, he found oral stain of semen. The same was,
however, not sent for clinical examination. She also submits that the evidence of
DW- 3, who stated that the father of the appellant had paid Rs. 5000/- to the
informant (PW-2) as compensation, in respect of expenses incurred by the
informant for filing the case, implied that the payment had been made for
closing the present criminal case filed by the informant. This proved the guilt of
the appellant. She accordingly submits that there is no infirmity with the
decision of the learned Trial Court and the same should not be interfered with.
5. Mr. M.H. Rajbarbhuiyan, learned counsel for the respond No. 2, reiterates
the submission made by the learned Additional Public Prosecutor.
6. We have heard the learned counsels for the parties.
7. The brief facts of the case is that an FIR dated 05-06-2018 was submitted
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by the victim’s father (PW-2), stating that around 5.30 p.m., his son (PW-1)
aged 11 years, was playing with his two friends in the college playground, when
the appellant dragged his son to the old toilet of the college. In the toilet the
appellant bit the cheek of the victim and inserted his penis into his anus. After
making an extensive search for his son and hearing his scream, the informant
(PW-2) rescued the victim.
8. Pursuant to the FIR dated 05-06-2018, Lala P.S. Case No. 212 of 2018 was
registered on 05-06-2018 under section 377 IPC, r/w section 4 of the POCSO
Act. After investigation of the case, the I/O submitted his charge-sheet, on
having found a prima facie case under section 377 IPC r/w section 4 of the
POCSO Act, against the appellant. The learned Trial Court thereafter examined
6(six) prosecution witnesses and 5(five) defence witnesses. After examination of
the appellant under section 313 CrPC, the learned Trial Court came to a finding
that the prosecution had been able to prove the guilt of the appellant under
section 377 IPC r/w with section 4 of the POCSO Act.
9. The learned Trial Court has relied upon the evidence of PW-1, PW-4 and
the Defence Witness- 2 (DW-2), to come to a finding that the guilt of appellant
had been proved, as DW-2 had stated in his testimony that in the village
meeting (bichar), the father of the appellant had been asked to pay Rs. 5000/-
as compensation to the victim’s family and that DW-2 had seen the appellant
pushing the victim in the campus of Lala Rural College regarding the entry of a
cow, due to which the appellant had chased the victim and the cow out of the
college campus area. The learned Trial Court thereafter, vide the impugned
judgment, convicted and sentenced the appellant to undergo the maximum
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punishment of imprisonment for life with a fine of Rs. 20,000/-, in default to
undergo rigorous imprisonment for 6(six) months under section 4 of the POCSO
Act and to undergo rigorous imprisonment for 10(ten) years for the offense
under section 377 IPC.
10. The evidence of the victim (PW-1) is to the effect that, while he was
playing with PW3 and PW5, the appellant suddenly appeared and told PW3 and
PW5 to go away. On PW3 and PW5 leaving the place, the appellant took the
victim (PW-1) to the college toilet wherein he put his penis into the mouth of
the victim. On raising a hue and cry, the appellant slapped the victim and also
bit his cheek. The appellant also inserted his finger into the anus of the victim
and bit his buttock. The victim’s father then started calling for the victim and on
hearing the voice of the victim’s father, the appellant fled. Thereafter, the victim
went to his house and narrated the entire incident to his parents. He then
stated that his father lodged a case and the police took him to the hospital. He
was also taken to the court where his statement was recorded by a Magistrate.
In his cross-examination, the victim (PW-1) stated that, after the incident
he had met his father (PW-2) in the “jangal” of his house, which is a pathway
leading to his house. He then went into his house and asked his sister to bring a
gamosa (a cotton towel). On his sister bringing out a gamosa, he took a bath in
the pond and on entering his house, his father started scolding him and asked
him as to why he had come home late. He asked his father not to beat him and
then disclosed the incident to his mother and then to his father. His mother also
disclosed the incident to his father. In his cross-examination, PW-1 denied the
suggestion that he did not tell the police that the appellant had inserted his
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penis into the victim’s mouth or that the appellant had not inserted his finger
into his anus. He denied the suggestion that the father of the appellant was not
a chowkidar in the college and that their cow had entered the college area,
which was asked by the appellant’s father to be taken away. PW-1 also denied
the suggestion that due to the protests by the family of the victim regarding the
cow, a false case had been registered against the appellant.
11. The evidence of PW-2, who is the informant and father of the victim, is to
the effect that as his son did not return home till dusk, he searched for him.
PW-2 stated that he was told by his son’s friends that they had noticed his son
going with the appellant. On calling for his son loudly, he saw his son coming
from near the toilet of the college and one person running away in the opposite
direction. He thereafter brought his son home and scolded him as to why he
had returned late to the house. PW-2 then stated that the victim told him that
the appellant had inserted his penis into the mouth of the victim and bit his
cheek and buttocks. He also saw swelling on his son’s cheek and buttocks. PW2
stated that he could not recognize the person who ran away from the toilet. He
also stated that he could not say whether his son took a bath before reaching
the house. He also denied the suggestion that there was a quarrel between the
father of the appellant and himself, regarding leaving his cow to graze in the
college field.
12. The evidence of PW-3, who is the 11 year old friend of the victim (PW-1),
is to the effect that on the relevant evening, PW1, PW-3 and PW-5 were playing
football in Lala College playground. When dusk appeared, they left for their
homes.
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In his cross-examination, PW-3 stated that the victim also came out from
the playground with them. However, he could not say where the victim
subsequently went.
13. The evidence of PW-5, who is another 11 year old friend of the victim
(PW-1) is to the effect that the victim, PW-3 and PW-5, were playing football in
the college playground. Thereafter, PW-3 and PW-5 started for their houses and
he also saw the victim going towards his house on a different route.
In his cross-examination, PW-5 stated that the three of them had started
proceeding towards their respective houses. The victim started going towards
the West, as the house of the victim was in the western side of the field. On
the other hand, the house of PW-3 and PW-5 being on the eastern side of the
field, they had started going towards the eastern side of the field. He also
stated that when they were leaving the field, the victim started washing his feet
in the waterlogged side of the field.
14. The testimony of PW-3 and PW-5 shows that there was no other child
besides PW-1, PW-3 and PW-5 playing football together in the playground.
There is no mention made by PW-3 and PW-5 about the presence of PW-2 or
the appellant, or that the appellant had chased away PW-3 and PW-5 and taken
the victim towards the college toilet. PW-3 and PW-5 have also not corroborated
the evidence of PW-2 that PW-3 and PW-5 had told PW-2 that they saw the
victim (PW-1) going with the appellant. It is also pertinent to note that PW-3
and PW-5 have not been declared hostile witnesses by the prosecution. As such,
there are major discrepancy/inconsistencies in the evidence of PW-1, PW-2, PW-
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3 and PW-5, regarding the presence of the appellant before and after they
played football. The appellant is also not seen by PW-3 & PW-5, when all the
three children proceeded towards their respective homes.
15. The evidence of PW-4 who is the medical doctor, is to the effect that he
examined the victim on 05-06-2018 at around 11:55 pm and on examining the
victim, he found that the victim was anxious and frightened. He found bite
marks on the victim’s cheeks, chin, neck and chest. He also found semen stain
and bloodstain in the anal orifice. There was tenderness in the external genitalia
and he also found oral stain of semen in the oral cavity of the victim. He also
stated that he did not collect any sample of semen for clinical examination and
could not say whether it was human semen. He also stated that the bloodstain
injury could be caused due to any other reason.
16. It is interesting to note that while the victim had stated that the appellant
had bitten his buttocks, the evidence of PW-4 has not mentioned any bite marks
in the buttocks of the victim. Further, while PW-4 had stated that there were
bite marks on the chin, neck and chest of the victim, the victim has not stated
anything with regard to the appellant biting him on the chin, neck and chest.
The only corroboration with regard to the bite marks allegedly given by the
appellant on the victim, is with regard to the bite marks on the cheeks.
17. It is settled law that a statement made under section 164 CrPC can be
used, either to corroborate or contradict the testimony of a witness. In the
present case, the victim’s statement under section 164 CrPC was recorded by
the Judicial Magistrate, after preliminary questions had been asked, which
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satisfied the Judicial Magistrate that the victim had the intelligence and maturity
to understand the questions put to him and answer them correctly. The extract
of the statement of the victim under section 164 CrPC is as follows –
“Yesterday at 4 pm I went to play with three of my friends Noor Jamal,
Nabidul and Numanul Islam in the Lala Rural College field. After playing
for about one and a half hours, the accused Pear came to the field and
chased the three of my friends away. I started going home. He caught me
and slapped me very tight. He bite my cheeks with his teeth very hard and
dragged me to the old college toilet. He opened my pants and bite my left
thigh with his teeth. Then he put his penis in my mouth and then put my
penis in his mouth. Then he inserted his finger inside my anus. He bite on
both sides of my waist. I tried to shout but he slapped me. He did this for
a long time and then left. I pulled up my pants and came home and told
my parents about the incident.”
18. A reading of the victim’s statement under section 164 CrPC is to the effect
that he played with three friends in the Lala Rural College field. The three
friends’ names are Noor Jamal (PW-3), Nabidul and Numanul Islam (PW-5). This
statement about playing with three friends is not reflected in the evidence of the
victim, PW-3 and PW-5. The testimony of PW-1, PW-3 and PW-5 all show that
there were only three boys, including the victim, playing together. There is no
mention of “Nabidul” in any of the three testimonies of PW-1, PW-3 and PW-5
made before the learned Trial Court.
19. The victim had also stated in his statement under section 164 CrPC that
the appellant came to the field and chased away his three friends. However, as
stated earlier, there is no evidence given by PW-1, PW-3 and PW-5 before the
learned Trial Court that three friends had been chased away. PW-1, in his
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testimony, has referred to only two friends having been chased away. The above
being said, PW-3 and PW-5 in their testimonies have not mentioned Nabidul as
one of the boys who played football with them and they have not stated that
the appellant chased them away. In his statement under section 164 CrPC, the
victim has stated that the appellant had bitten his left thigh with his teeth.
However, the victim or PW-4, have not stated in their testimonies, that the
appellant had bitten the victim on his left thigh or that there were bite marks on
the left thigh. In his statement under section 164 CrPC, the victim has stated
that the appellant put the victim’s penis into the appellant’s mouth. The
testimony of the victim is completely silent on this score. The victim in his
statement under section 164 CrPC, has also stated that the appellant bit him on
both sides of his waist. This is also conspicuously absent in the testimony of the
victim and PW-4. The victim has also stated that after the appellant left, the
victim pulled up his pants and went home, where he told his parents about the
incident. This is completely at variance with the testimony of PW-2 who is the
father of the victim. PW-2 in his testimony has stated that he saw his son
coming out near the college toilet and then he took his son home.
20. The above contradictions and inconsistencies in the testimonies of the
prosecution witnesses, which is also not corroborated by this victim’s statement
under section 164 CrPC, does not inspire our confidence, as the major
discrepancies relate to various facets of the prosecution case, which goes to the
root of the matter. Though some parts of the victim’s testimony appear to be
truthful, the testimony as a whole does not appear to be truthful.
21. Prior to the testimony of the victim (PW-1) being recorded by the learned
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Trial Court, the learned Trial Court had asked the victim preliminary questions
and had recorded its satisfaction to the effect that the court found the victim to
be mature enough to understand the questions put to him and give rational
answers to the same question. As such, in the view of this Court, the testimony
of the victim, if found truthful as a whole, would have been enough to convict
the appellant. This is due to the fact that the Supreme Court, in various
decisions, has held that conviction can be based on the sole testimony of the
prosecutrix, provided the same is found to be truthful and inspires the
confidence of the court. It has also been held in various decisions that minor
discrepancies and contradictions should not be a ground to disbelieve on
otherwise reliable prosecution case, unless and until the same goes to the root
of the matter.
22. In the case of Ganesan Vs. State represented by its Inspector of
Police, reported in (2020) 10 SCC 573, the Supreme Court has held that the
testimony of a child victim of sexual assault, if it is trustworthy, cogent, reliable
and confidence inspiring, requires no corroboration. The evidence must be of
sterling quality. The Supreme Court further held that Courts must not adopt a
hyper technical approach, as sexual offences are committed in secrecy and
often without witnesses.
23. It is settled law that minor inconsistencies, discrepancies or omission can
be ignored, provided the witnesses remain consistent on material particulars
and the same does not go to the root of the matter. In the case of State of
Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, the Supreme
Court held that minor contradictions or insignificant inconsistencies in the
statement of a prosecutrix should not be a ground for throwing out an
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otherwise reliable prosecution case.
24. In the case of Rai Sandeep @Deepu Vs. State (NCT of Delhi),
reported in (2012) 8 SCC 21, the Supreme Court has held that conviction can
be based on the sole evidence of a sterling witness, whose stand remains the
same, from start to finish.
25. In the present case, there are major inconsistencies/ discrepancies in the
victim’s testimony when compared with his statement under Section 164 Cr.P.C.
Further, in view of non-corroboration of the evidence of the victim by the
evidence of other prosecution witnesses, the conviction cannot be based on the
sole evidence of the victim, especially when the victim has been found to be
competent to give evidence by the learned Trial Court. Though every
inconsistency or contradiction may not vitiate the trial, the inconsistencies in this
case goes to the root of the matter and leaves us wondering, as to whether the
appellant was really the perpetrator of the crime. As can be seen from the
evidence of the defence witnesses there appears to be some enmity between
the parties. The village meeting (bichar) does not appear to be in relation to any
sexual assault on the victim by the appellant. Further, the evidence of the
Investigating Officer (PW-6) is to the effect that the victim did not tell him that
the appellant had inserted his penis into his mouth or inserted his finger into his
anus. The victim also did not tell him that the appellant had bit his cheeks and
buttock or had slapped him. PW-6 further stated that PW-2 had not told him
that the victim had told PW-2 that the appellant had inserted his penis into the
mouth of the victim and that the appellant had bit the cheeks of the victim. The
evidence of PW-3 and PW-5 do not corroborate the evidence of the victim,
regarding the presence of the appellant. There is discrepancy in the evidence of
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the victim, PW-2 and PW-4. As there are glaring discrepancies in the evidence
of the prosecution witnesses, we are unable to hold that the prosecution has
been able to prove the guilt of the appellant beyond all reasonable doubt.
26. With regard to the evidence of the defence witnesses Nos. 1 to 5, we find
that the same is basically to the effect that the father of the appellant was a
chowkidar in the Lala Rural College. Due to cows grazing inside the college
campus, the Principal of the Lala Rural College had asked the informant to
restrict the entry of his cow inside the college campus. However, the cow of the
informant (PW-2) had entered into the college campus along with the victim,
due to which the appellant had chased the victim and the cow from the college
campus. A quarrel ensued with regard to the above issue and a village meeting
(bichar) was also held, wherein the father of the appellant had been directed to
pay Rs.5000/- to the informant as compensation, in respect of the expenses
incurred by the informant in filing the case.
27. On going through the evidence of defence witnesses, we do not find that
the village meeting was relatable to any sexual offense allegedly committed by
the appellant against the victim. It pertained basically to the grazing of cows not
being allowed inside the college campus. If the “bichar” pertained to the alleged
sexual offence, the organisers of the “bichar” could have been made
prosecution witnesses to prove the prosecution case.
28. The examination of the appellant under section 313 CrPC shows that the
appellant has denied any wrongdoing towards the victim and is basically to the
effect that due to the cow of the informant entered the college campus and
damaged the flower plantation, which required the appellant’s father to chase
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the cow, leading to a quarrel between the appellant and the informant. The
informant then fell down and a threat had then been issued by the informant
that he would teach the appellant a lesson.
29. On considering all the above facts, we are of the view that the learned
Trial Court could not have convicted the appellant as there were glaring
discrepancies and contradictions in the testimonies of the prosecution witness.
Further, the statement of the victim(PW-1) under section 164 CrPC did not
corroborate his testimony. In fact, there are major contradictions in the
testimony of the victim vis-Ã -vis other prosecution witnesses (PWs-3 & 5), which
goes to the root of the matter. Accordingly, we find that the prosecution has not
been able to prove the guilt of the appellant under section 377 IPC r/w Section
4 of POCSO Act, 2012 beyond all reasonable doubt. The impugned judgment
and order dated 07-04-2022, passed by the learned Special Judge, Hailakandi in
Special (POCSO) Case No. 12 of 2018, is hereby set aside.
30. The respondent authority is accordingly directed to release the appellant
from the judicial custody immediately, if not wanted in any other case.
31. Send back the original TCR.
JUDGE JUDGE Comparing Assistant