Gauhati High Court
Akabar Ali @ Akabbar Ali vs The State Of Assam And Anr on 14 July, 2026
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/22
GAHC010227112025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./408/2025
AKABAR ALI @ AKABBAR ALI
S/O LT. ALTAB ALI, R/O. BORBORI, P/S. LAHARIGHAT, DIST. MORIUGAON,
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP ASSAM
2:JAHURA KHATUN
W/O. MD. GULZAR HUSSAIN
VILL.- NO. 1 BORBARI
P/S. LAHARIGHAT
DIST. MORIGAON
ASSAM
Advocates for the appellant : Mr. H.R.A. Choudhury, Sr. Advocate,
Mr. I.U. Choudhury, Advocate.
Advocates for the respondents: Ms. A. Begum, Addl. PP. (R-1),
Ms. S. Sharma, Legal Aid Counsel,
(R-2)
:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE RAJESH MAZUMDARDate of hearing and judgment : 14.07.2026
Page No.# 2/22JUDGMENT & ORDER
(M. Zothankhuma, J)
1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the appellant
assisted by Mr. I. U. Choudhury, learned counsel. Also heard Ms. A. Begum,
learned Additional Public Prosecutor, Assam for the respondent no. 1 and Ms. S.
Sharma, learned Legal Aid Counsel for the respondent no.2.
2. This appeal has been filed against the conviction of the appellant under
Section 6 of the POCSO Act by the learned Additional Sessions Judge-cum-
Special Judge (POCSO), Morigaon, vide judgment dated 14.08.2025 passed in
POCSO Case No.22/2022, arising out of Laharighat P.S. Case No.90/2021. The
appellant was accordingly sentenced to undergo rigorous imprisonment for 20
years with a fine of Rs.20,000/-, in default to undergo rigorous imprisonment for
3 months under Section 6 of the POCSO Act.
3. The appellant’s counsel submits that the impugned judgment is not
sustainable in view of the fact that, while the learned Trial Court had found the
appellant guilty of having inserted his finger into the private parts of the 5 year
old victim girl, the doctor’s evidence does not indicate that any penetration of
the private parts of the victim by the finger of the appellant had occurred. The
evidence of the doctor and the medical report shows that there was no injury or
redness in the private parts of the victim girl, besides the hymen being intact.
He further submits that the incident had allegedly occurred on 19.02.2021 at
around 4:30 p.m, due to which an FIR had first been lodged by the father of the
victim (PW-5), on 19.02.2021. However, the same was not registered by the
police and a second FIR had been lodged by the mother of the victim (PW-2) on
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20.02.2021, which had been registered. As there appears to be suppression of
the filing of the first FIR by the Prosecution, the second FIR would have to be
considered to be a betterment of the first FIR, for the purpose of falsely
ensnaring the appellant in a serious crime, only due to a land dispute between
the appellant and the father (PW-5) of the victim.
4. The learned counsel for the appellant further submits that though the
victim had been taken to Laharighat Hospital on the evening of 19.02.2021, the
Doctor had not made any medical examination report and had told the victim’s
mother (PW-2) that a police case needed to be filed first and that the victim had
to be treated in the Morigaon Civil Hospital. The same implied that there was
no injury on the victim and that the incident had not taken place. After the
second FIR was filed on 20.02.2021, the victim was taken to the Morigaon Civil
Hospital and thereafter examined by the doctor, i.e. (PW-11), wherein no injury
mark was seen in the private parts of the victim and her hymen was found to be
intact. The learned counsel for the appellant submits that the same only goes to
show that the case against the appellant is a fabricated case and had been
made only due to a land dispute between the appellant and the father of the
victim.
5. The learned Additional Public Prosecutor for the State submits that the
evidence of the Prosecution Witnesses clearly shows that there was no land
dispute between the appellant and the father of the victim (PW-5). She submits
that PW-5 in his evidence has also clearly stated that he did not have any land
in his name. Further, the explanation given by the appellant in his 313 Cr.P.C
examination, is only to the effect that there was a quarrel regarding the use of
water in a tube-well between the appellant and the father of the victim and
Page No.# 4/22
there was no land dispute between them. Thus, the evidence of the appellant as
DW-4, where DW-4 has stated that there was a land dispute between the
parties was an afterthought, without any specifics of the alleged land dispute
being provided by the appellant. The learned Additional Public Prosecutor
further submits that just because PW-11 (Doctor) has made a finding that there
was no injury on the private parts of the victim, does not mean that she had not
been subjected to aggravated penetrative sexual assault, inasmuch as, the
Supreme Court in the case of Ranjit Hazarika vs. State of Assam, reported
in (1998) 8 SCC 635 has held that in the facts of that case, neither the non
rupture of the hymen nor the absence of injuries on the private parts of the
victim belies the testimony of the prosecutrix, as to why she would falsely
implicate the appellant therein on the charge of rape. The Supreme Court in the
above case held that the opinion of the doctor that no rape appeared to have
been committed due to absence of rupture of the hymen and injuries on the
private parts of the victim, could not throw out an otherwise cogent and
trustworthy evidence of the victim. The learned Additional Public Prosecutor
thus submits that the absence of injury on the private parts of the victim does
not mean that the appellant did not insert his finger into the private parts of the
victim girl.
6. Ms. S. Sharma, the learned Legal Aid Counsel for the respondent No.2
reiterates the submissions made by the learned Additional Public Prosecutor and
submits that the evidence of the victim has not been shaken by the appellant.
She further submits that the absence of injury on the private parts of the victim
does not mean that the victim had not been subjected to penetrative sexual
assault. She also submits that the non-acceptance of the testimony of a victim
of sexual assault, in the absence of corroboration as a rule, would add insult to
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injury. In support of the above submission, she has relied upon the judgment of
the Supreme Court in the case of Lok Mal Alias Loku vs State of Uttar
Pradesh, reported in (2025) 4 SCC 470. The learned Legal Aid Counsel for
the respondent no.2 also summits that when a 4 year old girl’s private parts had
been penetrated by the finger of the accused, the said act attracted Section
5(m) of the POCSO Act which was punishable under Section 6 of the POCSO
Act, as was held in the case of Nawabuddin vs. State of Uttarakhand,
reported in (2022) 5 SCC 419. She submits that in the present case, the
private parts of the 5 year old victim girl had been penetrated by the appellant
herein and as such, Section 6 of the POCSO act was rightly attracted.
Accordingly, the appeal should be dismissed.
7. We have heard the learned counsels for the parties.
8. The brief facts of the case is that the mother (PW-2) of the victim girl
submitted an FIR dated 20/02/2021 to the Officer in Charge of the Laharighat
Police Station, stating that she had left her house at around 4.30pm on
09/02/2021, leaving her five year old daughter at home. Taking advantage of
her absence, her neighbour (appellant) entered her house and lured her
daughter, by tempting her with money and took her inside the Latrine (toilet) of
his own house. The appellant thereafter inserted his finger into her daughter’s
private parts and attempted to rape her. When her daughter started crying, the
appellant let her out of the toilet. Her daughter subsequently came to her and
narrated the incident to her. Pursuant to the FIR, Laharighat PS case No.
90/2021 under Section 376 AB IPC read with section 6 of the POCSO Act was
registered. After the girl was sent for medical examination, her statement under
section 164 Cr.P.C was recorded and investigation was completed Charge Sheet
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was submitted against the appellant, as a prima facie case had been found
against him under section 6 of the POCSO Act read with Section 376 AB IPC.
9. The learned Trial Court thereafter framed charge against the appellant
under section 6 POCSO Act and section 376AB IPC, to which the appellant
pleaded not guilty and claimed to be tried.
10. After the evidence of 11 Prosecution Witnesses and 8 Defence Witnesses
were recorded, the learned Trial Court examined the appellant under Section
313 Cr.P.C. Thereafter, the learned Trial Court came to a finding that the
appellant had committed the offence of aggravated penetrative sexual assault
under Section 5(m) of the POCSO Act. The appellant was, thus, convicted and
sentenced under Section 6 of the POCSO Act, in view of Section 42 of the
POCSO Act.
11. The deposition of the victim (PW-1), when she attained the age of 8
years, was recorded by the learned Trial Court, after the learned Trial Court
satisfied itself that the victim was able to understand the preliminary questions
put to her and could give rational answers to the same.
12. The evidence of PW-1 is to the effect that she knew the appellant, who
was her neighbour and whom she addressed as “Nana”. She stated that the
incident took place around 3 years back when she was alone in her house and
was looking at the mobile. At that time, her mother had gone to a shop and her
father had gone to the market. The appellant on coming to her house, gave her
Rs 6/- in coins and then took her inside his toilet (latrine) while holding her
hand. Inside the toilet, the appellant opened her panty and inserted his finger
inside her urine passing organ (private parts). The appellant inserted his finger
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inside her private parts for some time. The victim cried when the appellant
inserted his finger into her private parts because she felt pain. The appellant
then left her and asked her to go home. The victim then went in search of her
mother and found her in a shop. On informing her mother about the incident,
her mother lodged a case with the Police. She also stated that the Police had
taken her to the Court where her statement was recorded by a Magistrate and
her thumb impression was put on the said statement made by her. PW-1 also
stated that the Police sent her to hospital for medical examination.
In her cross-examination, the victim denied the suggestion that her
parents had tutored her and that she had made a false testimony in Court.
13. The evidence of PW-2, who is the mother of the victim, is to the effect
that on the relevant date, she had gone to a shop leaving her daughter alone in
the house. After about an hour, her daughter found her in a shop and told her
while crying, that the appellant “Nana” had come to their house and after giving
Rs.6/- to her, took the victim to his house and inserted his finger inside her
private parts. On hearing about the incident, PW-2 stated that she shouted and
cried due to which her neighbours came and she informed them about the
incident. She also reported the incident to the wife of the appellant, who
refused to believe her. She then called her husband over phone and told him
about the incident. She took her daughter to a Doctor as she saw redness in the
victim’s private parts. However, the Doctor told PW-2 that a case had to be first
lodged due to which she went to the Police Station. After the case was lodged,
the Police sent her daughter to Morigaon Civil Hospital for examination. PW-2
also exhibited the Birth Certificate of her daughter, which was seized by the
Police.
Page No.# 8/22
In her cross-examination, PW-2 denied the suggestion that they had a
boundary dispute with the appellant and because of which a false case had
been lodged. PW-2 did not deny the fact that no medicine was provided to her
daughter at Laharighat Hospital.
14. The evidence of PW-3 is to the effect that she had given her signature
on a document after being shown some coins. The said document (seizure list)
was exhibited as Ext. No. P-2 and he identified his signature as Ext. No. P-2(1).
Ext. No. P-2 was made in relation to the seizure of the Birth Certificate of the
victim, showing her date of birth as 27/04/2015 and the seizure of three 2
Rupee Coins. Cross examination of PW-3 was declined by the appellant.
15. The evidence of PW-4 is to the effect that the Police showed him 3
(three) coins of Rs.2/- each, which was alleged to have been taken by the Police
from the victim. The Police also seized the Birth Certificate of the victim. PW-4
stated that he was the seizure witness and identified his signature in the seizure
memo, which was exhibited as Ext. P-2 and his signature as Ext. P-2(2). In his
cross-examination, PW-4 stated that he had not seen the seized coins in the
Court.
16. The evidence of PW-5, who is the father of the victim, is to the effect
that at the time of the incident, his daughter was 5 years 6 months and that the
appellant was their neighbour. He was not in his house at the relevant point of
time and his wife had called him home by phone. On coming back home around
5 pm, he found his wife and daughter crying. His daughter then told him that
the appellant had taken her to his toilet (Latrine) and inserted his finger inside
her private parts and that it was paining. Her daughter disclosed the incident
while crying. Thereafter, PW-2 and PW-5 took the victim to Laharighat Civil
Page No.# 9/22
Hospital. However, the Doctor, after examining their daughter, told them that a
Police case needed to be filed and that their daughter had to be treated at
Morigaon Civil Hospital. On the same day, they went to Laharighat Police Station
and the FIR was filed. However, on the next day, the Police visited their house
and recorded the statement of their daughter. The Police then wrote one FIR
which was signed by PW-2 and told them that the earlier FIR was not proper.
The Police then sent his daughter to Morigaon Civil Hospital for examination and
then to the Court, where her statement was recorded by a Magistrate.
In his cross examination, PW-5 stated that he had lodged one FIR on the
date of the incident in Laharighat Police Station. However, on the next day, the
Police visited their house and wrote an FIR which was signed by his wife as the
earlier FIR had not been properly made. He also stated that there was no land
dispute between him and the appellant and that there was no land in his name.
He also denied the suggestion that they had lodged a false case.
17. The evidence of PW-6 is to the effect that he came to know about the
incident from the Police. The evidence of PW-7 is to the effect that she was the
neighbour of the informant (PW-2) and that she knew the victim. She also knew
the appellant who was their neighbour. On the relevant day, on hearing the
informant making a hue and cry, she went to the informant’s (PW-2) house,
wherein PW-2 told the persons gathered therein, including PW-7, that the
appellant had raped her daughter by inserting his finger inside her private parts.
In her cross-examination, PW-7 stated that she heard about the incident from
PW-2 and that the victim was crying at that time. She also stated that she did
not ask the victim about the incident.
18. The evidence of PW-8, who is a neighbour of PW-2 and the appellant, is
Page No.# 10/22
to the effect that, on the relevant date, she heard a hue and cry in the house of
PW-2. On going with PW-7 to the house of the informant, they found the
informant and her daughter crying. Many villagers had assembled there and
they heard the informant saying that the appellant had taken her daughter to
his bathroom and tried to commit rape with his fingers.
19. The evidence of PW-9 is to the effect that, on 20/02/2021, he was
posted as Officer-In-Charge of Laharighat Police Station. An FIR was lodged by
PW-2, which was registered and which case he took up for investigation. After
completing the investigation, he handed over the case diary to SI Alimuddin
Ahmed, who subsequently submitted the charge sheet, as he had been
transferred.
20. The evidence of PW-10, who was posted as Judicial Magistrate 1 st class
Morigaon on 20/02/2021, is to the effect that she recorded the statement of the
victim aged 5 years, after being satisfied that the victim could give rational
answers to the preliminary questions put to her. PW-10 stated that she recorded
the victim’s statement under Section 164 Cr.P.C in the presence of her mother
and without administering oath, as she was less than 12 years of age. She also
stated that the victim deposed voluntarily, without any force or coercion. The
thumb impression of the victim was also obtained after recording the statement
of the victim.
21. The evidence of PW-11, who was the Medical and Health Officer-1 at
Morigaon Civil Hospital, is to the effect that she examined the victim on
20/022021 and found nothing abnormal with the victim. The victim’s hymen was
intact and her opinion on the medical examination conducted on the victim, was
to the effect that there was no evidence of recent sexual intercourse nor
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evidence of any injury marks seen on the body or private parts of the victim.
22. The evidence of Defence Witness-I (DW-1), is to the effect that the he
did not know anything about the case nor was he aware of any previous quarrel
between the parties before the case was lodged. He also stated that if there
was any previous quarrel between the parties, he would have been informed of
the same, as he was a leading member of the society.
23. The evidence of DW-2 is to the effect that the appellant had not told him
that he had any previous land dispute with PW-2.
24. The evidence of DW-3 is to the effect that he knew the parents of the
victim and the appellant and that they never told him anything about the case.
25. The evidence of DW-4, who is the appellant, is to the effect that he had
a land dispute with PW-5 because of which, a false case had been lodged
against him. He also stated that on the day of the incident, he was in the
market throughout the day and returned back at about 11pm. He had gone to
the market at about 6 am. He also stated that after the case was lodged, the
villagers tried to make a compromise, but the father of the victim did not listen.
In his cross-examination, DW-4 stated that he had not filed any case relating to
a land dispute against the father of the victim (PW-1).
26. The evidence of DW-5 is to the effect that he knew the parents of the
victim and the appellant. He also stated that there was a land dispute between
the appellant and PW-2, because of which the present case had been filed. DW-
5 stated that the informant and the appellant were adjacent neighbours and
there was a boundary dispute between them. He also stated that the appellant
did not tell him anything about the case.
Page No.# 12/22
27. The evidence of DW-6 is to the effect that he knew the appellant and
the parents of the victim. To his knowledge, there was a land dispute between
the appellant and the father of the victim, due to which a false case had been
filed against the appellant. He also stated that the father of the victim had sold
his land and house and shifted to another place.
28. The evidence of DW-7 is to the effect that he had heard that there was a
land dispute between the parents of the victim and the appellant, who was his
maternal uncle. He also stated that the instant case was a false case. He stated
that he did not know the case number relating to the land dispute between the
parties.
29. The evidence of DW-8 is to the effect that there was a land dispute
between the parties and the case had been filed due to a land dispute.
30. The explanation/answers given by the appellant during his examination
under Section 313 Cr.P.C, is basically a blanket denial that he had inserted his
finger in the private parts (vagina) of the victim.
31. With regard to the question raised by the learned Trial Court at the time
of his examination under Section 313 Cr.P.C. that the victim had deposed in
Court, that the appellant had come to her house and given her Rs. 6/- in coins
and took her inside his toilet (latrine) by holding her hand, the appellant stated
that the same was false and that he was not in the house at that time.
32. To a question whether the appellant had any boundary dispute with PW-
2, the appellant stated that there was a quarrel regarding the use of water in
the Tube Well. With regard to the evidence of PW-4, that the Police had shown
her 3 coins having the value of Rs. 2/- each, the appellant stated that when he
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was going home from the market, the victim had taken a Rs. 5/- coin from him.
With regard to whether PW-5, (father of the victim) had any land in his name,
the appellant stated that PW-5 did not have any land in his name. With regard
to the question whether the Latrine (toilet) where the incident took place
belonged to the informant and whether it was a proper (Pucca) Latrine, the
appellant stated that the Latrine was his and it was a Pucca Latrine.
33. The questions put to the appellant under section 313 Cr.P.C and the
explanation given by him with regard to question nos. 5, 6, 23, 41, 48, 65, 94
and second 99, are as follows :-
“Q5. PW-1 Miss. xxxx deposed in Court that at the time her mother
went to a shop and her father went to market. Do you have anything to
say?
Ans. Her mother was in house at that time.
Q6. PW-1 Miss. xxxx deposed in Court that the accused Akabbar Ali then
came to their house and gave her Rs. 6/- in coins and took her inside
their latrine by catching hold of her hand. Do you have anything to say?
Ans. False. I was not in house at that time.
Q23. PW-2 Musst. Johura Khatun deposed in Court that her daughter
xxxx was alone in house at that time. Do you have anything to say?
Ans. False. She was alone in house at that time with xxxx.
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Q41. PW-2 Musst. Johura Khatun deposed in Court during cross that
they do not have any boundary dispute with the accused. Do you have
anything to say?
Ans. Quarrel was regarding water of tube well.
Q.48. PW-4 Jebina Khatun deposed in Court that police then called her
and showed her three coins of Rs. 2/- each and the same was shown to
have been taken from the victim. Do you have anything to say?
Ans. When I was going home from the market, the small girl took Rs.
5/- coin from me.
Q.65. PW-5 Gulzar Hussain deposed in Court during cross that there was
no land dispute with the accused and that there is no land in his name.
Do you have anything to say?
Ans. Yes, he has no land in his name.
Q94. PW-9 S.I. Adith Boro deposed in Court during cross that the latrine
where the incident took place was of the informant and it was a pucca
latrine. Do you have anything to say?
Ans. The latrine was mine. Yes, it was a pucca latrine.
Q99. (2nd) Do you have anything more to say?
Page No.# 15/22
Ans. We had dispute regarding use of water of tubewell and regarding
which there was quarrel in the evening.”
It may be stated here that the Section 313 Cr.P.C examination of the
appellant shows that there are two Question Nos. 99 and accordingly two
answers. We are concerned with the second (2 nd) question/answer 99.
34. The victim’s statement under Section 164 Cr.P.C is to the effect that
while her mother had gone to a shop and her father had gone to the market,
she was at home, when the appellant came and gave her some money. He took
her to his toilet where he then put his finger inside her vagina. On being asked
by the Judicial Magistrate, 1st Class, who was recording the statement of the
victim girl, as to where the appellant had put his finger, the victim had pointed
to the lower part of her body to the Magistrate, indicating her vagina. The victim
also stated that she felt pain when the appellant had inserted his finger and that
she had told her mother about the incident when she returned from the shop.
Though there is a discrepancy here vis-Ã -vis her testimony in Court, where she
stated that she reached and found her mother in a shop, we find the said
discrepancy to be a minor discrepancy, which does not go to the root of the
matter and thus, can be ignored. Further, besides the victim not being
confronted during cross-examination regarding the above discrepancy to
discredit the victim (PW-1), in terms of Section 145 of the Evidence Act, PW-2
has corroborated the evidence of PW-1 (victim) by stating that her daughter
(victim) found her in a shop and narrated the incident to her while crying.
35. In the present case, the stand of the appellant is that a false case has
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been foisted upon him, on account of there being a land dispute between him
and the victim’s family.
36. In the case of Raju and Others Vs. State of Madhya Pradesh,
reported in (2008) 15 SCC 133, the Supreme Court has held that rape causes
the greatest distress and humiliation to the victim, but at the same time, a false
allegation of rape can cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected against the possibility of
false implication. Though a victim of sexual assault is akin to an injured witness,
who would ordinarily not be considered as a person who would tell a lie, there
can be no presumption for assuming that the statement of such a witness is
always correct or without embellishment or exaggeration. Thus, though the
evidence of the victim of sexual assault/rape must be examined as that of an
injured witness, whose statement should be considered to be probable, it
cannot be presumed that such a statement, without exception, should be taken
as the gospel truth. We would have to see each case on the basis of the
peculiarities of each case.
37. In the present case, the appellant has tried to make out a case that
there was a land dispute between the parties and in this regard, a suggestion
had been put to PW-2 and PW-5 that a false case had been filed due to the
alleged land dispute. However, PW-2 and PW-5 have denied that there was any
land dispute between the parties and PW-5 has stated that there was no land in
his name. Though, DW-4, (appellant) had stated in his evidence that there was
a land dispute, which was corroborated by the evidence of DW-5, DW-6, and
DW-7, there are no specifics mentioned with regard to the land dispute. There is
Page No.# 17/22
no proof of there being any land dispute between the parties, inasmuch as, PW-
5 (father of the victim) has denied having any land in his name and denied that
there was any land dispute between the parties. The appellant, in his answer to
question nos. 41 and second 99, has only spoken of there being a dispute
regarding use of water of the tubewell, which argument, apparently occurred
one morning. There is nothing mentioned in the explanation given by the
appellant in his Section 313 Cr.P.C. examination that there was any land dispute
between the parties. The only explanation was that there was a quarrel with
regard to the use of water from the tube well, which we feel could not be a
reason enough to lodge a false case. Further, the parents of the victim were
never confronted during cross-examination, with regard to any quarrel having
occurred due to the use of water from a tubewell.
38. The answer to question no.65, in his examination under Section 313
Cr.P.C, shows that the appellant had admitted that PW-5 did not have any land
in his name. There is nothing stated by the appellant or his witnesses, with
regard to which specific land was the subject matter of a dispute between the
parties. We are also hard-pressed to understand as to why the victim’s family
would have shifted elsewhere after the case was filed after allegedly selling their
land, (as DW-7 testified that PW-2 sold their land and shifted elsewhere), when
the objective of filing the alleged false case against the appellant can be said to
have been achieved. On considering all the above reasons and the fact that
there are no particulars of the alleged land dispute, it cannot be said that there
is proof of there being any land dispute between the parties.
39. The second issue to be decided is whether the absence of any injury,
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redness or swelling on the private parts of the victim proved that the appellant
had not inserted his finger into the private parts of the victim. It would be
profitable to refer to the decision of the Supreme Court in the case of
Nawabuddin (supra), wherein the accused therein had fondled the private
parts of the four-year-old victim girl and inserted his finger into the vagina of
the victim. The Doctor had found redness and swelling around the vagina,
though the hymen remained intact.
40. In the case of Lokmal @ Loku (supra), the Supreme Court has held
that in each and every case where there is an allegation of rape, it is not
necessary that there should be an injury to the private parts of the victim.
Absence of injuries on the private parts of the victim is not always fatal to the
case of the Prosecution.
41. In the present case, there was no sign of injury on the private parts of
the victim. There was also no redness or swelling around the vagina of the
victim. This could be due to the fact that in the present case, there is no
allegation made by the victim that the appellant had fondled/manipulated the
private parts of the victim. The only allegation is that the appellant had inserted
his finger into the private parts of the victim, without there being any fondling
or manipulation of the private parts of the victim. The redness and swelling in
the private parts of the victim in the case of Nawabuddin (supra) could have
been attributable to fondling or manipulating the private parts of the victim. It
also cannot be said that in every case of insertion of a finger into the vagina,
there has to be redness or swelling of the private parts of the victim. No such
clarification had also been asked from PW-11 (Doctor). Just because there was
Page No.# 19/22
no injury, redness or swelling of the vagina of the victim in the present case,
does not mean that there was no insertion of the appellant’s finger into the
private parts of the victim. We should also remember that the medical
examination was done one day later, by which time any redness or swelling
could have disappeared.
42. The next issue is with regard to the filing of two FIRs with respect to the
same incident. A reading of the evidence of PW-5 (father of the victim) shows
that he had filed the first FIR in the Laharighat P.S. on the day of the incident.
The same was however not registered and a new FIR was filed by PW-2
(mother of the victim) a day after the incident, which was registered as
Laharighat P.S. Case No. 90/2021 under Section 376AB IPC read with Section 6
of the POCSO Act. The reason given for filing the subsequent FIR was that the
earlier FIR had not been properly made. We do not find any infirmity with the
filing of the subsequent FIR by PW-2, just because the earlier FIR was not
properly made. Also, there is nothing shown by the appellant as to how the
filing of the subsequent FIR has caused prejudice to the appellant.
43. The evidence of the Prosecution witnesses shows that the victim had
first been taken to the Laharighat Hospital on the date of the incident i.e.
19/02/2021 and subsequently to the Morigaon Civil Hospital after the filing of
the FIR on 20/02/2021. We do not find any prejudice being caused to the
appellant, only because the victim had been taken to two hospitals, inasmuch
as, the medical report and evidence given by PW-11, the Doctor posted in
Morigaon Civil Hospital, does not cause any prejudice to the case of the
appellant, especially when there is no improvement on material particulars in
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favour of the victim, on the basis of any medical examination that might have
been conducted in Laharighat Hospital.
44. In the present case, we do not find any reason for the 5-year-old victim
girl to have fabricated a case of penetrative sexual assault against the appellant.
Further, the victim girl had been subjected to preliminary questions, prior to
recording her statement under Section 164 Cr.P.C and prior to her testimony
during the trial. The Magistrate/Trial Court, have both been satisfied with the
capacity of the minor victim to understand the preliminary questions put to her
and give rational answers to the same. There is also nothing to show that the
victim had been tutored by her parents to make a false allegation against the
appellant. In fact, the evidence of the victim and the consequential behaviour of
the mother of the victim, as described by the Prosecution Witnesses’ in their
evidence, only reinforces our view that the victim had been given money in
coins by the appellant and the offence under Section 5(m) of the POCSO Act
had been committed upon her. Though, the appellant, as DW-4, has stated that
on the date of the incident he was in the market from 6 a.m till he returned
back home at about 11 p.m, the appellant in his explanation to Question No.48
in his examination under Section 313 Cr.P.C has stated that ” when he was going
home from the market, the small girl took Rs.5/- coin from me”. When the
incident had occurred at 4.30 p.m on the relevant date, it does not appear
plausible for the girl to have taken a 5/- rupee coin from the appellant at around
11 p.m at night. However, what the above indicates is that the appellant had
given money to the victim on the relevant date. The above thus reinforces our
view that the appellant had given the victim three 2/- Rupee Coins on the date
of the incident. Further, as per the evidence of PW-3 and PW-4, the seizure
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witnesses had stated that they had seen three 2/- Rupee coins, which had been
seized by the Police and which Seizure List they had signed as Exhibit P-2(1) &
P-2(2).
45. The appellant had stated in his answer to question nos. 5 & 23 that PW-
2 was with the victim in their house on the date of the incident. How could the
appellant have known this, if he was in the market place from 6 a.m. to 11 p.m.
on that date.
46. On considering all the above facts, we find the testimony of the victim
child to be trustworthy, which inspires the confidence of the Court. Accordingly,
we find that the foundational facts of the appellant having committed
aggravated penetrative sexual assault on the victim had been made out, which
attracted the presumption under Section 29 of the POCSO Act that the appellant
was guilty of the crime, requiring him to rebut the said presumption. However,
as can be seen in the foregoing paragraphs, the appellant has not been able to
rebut the presumption of guilt of having committed aggravated penetrative
sexual assault on the victim. Consequently, we do not find any reason to
interfere with the judgment dated 14/08/2025 passed by the learned Additional
Sessions Judge-cum-Special Judge (POCSO), Morigaon, in POCSO Case
No.22/2022.
47. The appeal is accordingly dismissed.
48. Send back the TCR.
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49. In appreciation of the assistance provided by the learned Legal Aid
Counsel, her fees should be paid by the Gauhati High Court Legal Service
Committee.
JUDGE JUDGE Comparing Assistant
