Gauhati High Court
Crl.A./349/2024 on 23 March, 2026
Page No.# 1/13
GAHC010215962024
2026:GAU-AS:4173
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl.A./349/2024
Uttam Das S/O. Late Gobindo Chandra Das,
A Resident Of Mission Para, Tinsukia,
P.O. And P.S. Tinsukia, Dist. Tinsukia, Assam,
Pin-786125.
Versus
1: The State Of Assam And Anr Rep. by the PP, Assam.
2: Riya Barma D/O. Sri Laxmi Prasad Barma R/O. Vill. Pengiri Chariali, P/O And P/S
Pengiri Dist.- Tinsukia, Assam, Pin-786174
BEFORE
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
Advocate for the petitioner(s): Mr. B K Das, Mr H P Guwala,
Mr. S D Purkayastha,
Mr H P Neog
Advocate for the respondent(s): Mrs. P B Bordoloi (Legal Aid
Counsel, R-2.
Date on which judgment was reserved : 17.03.2026
Date of pronouncement of judgment : 23.03.2026
Whether the pronouncement is of the : NA
Page No.# 2/13
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (CAV)
The present appeal arises out of the judgment dated 13th day of September, 2024
pronounced by the learned Sessions Judge, (FTC-2) Tinsukia in Sessions Case No. 13
(T) of 2021) arising out of Tinsukia P.S. Case No. 739/2019, convicting the appellant
under Section 376, IPC and sentencing him to undergo Rigorous Imprisonment for
10 years for his offence u/s. 376 IPC, and to pay a fine of Rs. 10,000/- in default to
undergo S.I. for another 6 months. The fine amount, if realised, was to be paid to the
victim. The accused was entitled to have the previous custodial period set off against the
total period of conviction, as per section 428 Cr.P.C.
2. The case of the prosecution’s case was that in December 2018, when the victim,
the daughter of the informant, went to stay in the house of the accused, the accused
established a physical relationship with her by alluring her. It is further stated that the
victim became pregnant as a result of the physical relationship established. The father of
the victim had lodged an FIR, and Tinsukia P.S. case No. 739/2019 u/s 376 IPC was
registered against the accused. On completion of the investigation, the I.0. submitted a
charge sheet against the accused Uttam Das u/s. 376 IPC.
3. Formal charge against the accused under section 376 IPC vide was framed by
order dated 05/01/2022. The charge was read over and explained to the accused, to
which he pleaded not guilty and claimed to be tried. The prosecution side adduced
evidence from four witnesses. The defence plea was one of total denial, and the defence
did not adduce evidence.
4. Learned Trial Court framed the following point for determination:
Page No.# 3/13
(i) Whether the accused in this case, in December 2018 at Mission Para under Tinsukia
P.S., committed rape on the victim Kumari Riya Verma, the daughter of the informant,
against her will and thereby committed an offence punishable u/s. 376 IPC?
5. As noted above, the Learned Trial Court held the answer to the point of
determination in the affirmative, convicted the accused, and passed sentence. The
appellant herein has assailed this finding of the Learned Trial Court.
6. Evidence Led By The Prosecution:
PW1:
The victim of this case deposed as the PW1. She has stated that the informant is her
father and the accused is her uncle. She has stated that the incident took place in
December 2018 at the accused’s house. The victim has stated that 3/4 days before the
incident, she visited the house of one of their relatives in Dibrugarh, and at the
invitation of the accused and her cousin, she went to the house of the accused at
Tinsukia. She has stated that on the first day, she slept with the son of the accused in a
room where there was no door. At night, when the son of the accused had left the room,
the accused came to her sleeping room and touched different parts of her body and also
asked for a kiss. The victim resisted and said that she would report the matter to her
mother and to the police. But the accused gagged her mouth with his hand and
committed rape on her and left the room. In the coming days, as per the victim, the
accused used to give her chocolate and tried to feed her forcibly. She stated that after
about 3 /4 days, when she was sleeping in the room, the accused had physical
intercourse with her without her knowledge. She has stated that the next morning, she
felt some physical pain in her vagina. The victim has stated that the accused repeated the
same incident against her for a few days. She returned home after about 15/20 days, and
her menstrual cycle had stopped. Her mother took her for a medical check-up, where
she was detected to be pregnant, and then she narrated the story to her mother.
Thereafter, her father lodged this case. The victim has proved her statement given before
Page No.# 4/13the magistrate as P.Ext. 1, wherein P.Ext. 1(1) is her signature.
During cross-examination, the victim stated that she had not told the police before that
she had stayed at the accused’s house in the last part of 2018. During that period,
sometimes at about 9/10 p.m., the accused put his hands on her chest and thereafter, one
day, when the wife of the accused slept. The accused came and established a physical
relationship with her, and the accused fed her something and made her unconscious, and
then the accused established a physical relationship with her. The victim has stated that
at the time of the incident, she was 19 years old. She has stated that the incident took
place in December 2018, and she reported the matter to her mother in May 2019, after
the detection of her pregnancy, though she returned from the house of the accused on 17
January 2019. She further stated that there are three rooms in the accused’s house. In the
first room, the minor son of the accused sleeps; in the second room, the daughter,
Mamun Das, sleeps; and in the third room, the accused and his wife sleep. The walls are
not high till the roof, and there is a gap between the tin roof and the wall. She has stated
that, in the accused’s house, if someone speaks, it is audible in the other room. If
someone screams or talks loudly, it is audible in the other part of the house. She has
stated that a Bihari family resides in the house rented out by the accused, comprising the
husband, the wife, and their two sons. She has further stated that Missionpara is a
densely populated area, with residences built very close to each other, and that there is
continuous traffic on the Mission main road, which lies in front of the house of the
accused. The main gate of the accused’s house is on the roadside; the distance between
the gate and the house is approximately 8 feet. Further, two shops on both sides of the
accused’s house remain open late into the night. She has stated that Mamun Das, the 26-
year-old daughter of the accused, was married to Makum, but on the day of the incident,
she was present at her parental house after her divorce. She has stated that after about
10/15 days in the accused’s house, the accused’s wife called her brother to take her
home, who accordingly did so. She has stated that she did not state before the police that
Page No.# 5/13she raised hue and cry or tried to escape from the accused to save herself. She has denied
the suggestion that the accused did not commit rape on her. The remainder of her cross-
examination concerns suggestions that the victim denied.
PW2
The medical officer who submitted the medical report of the victim in connection with
this case deposed as PW2. He has stated that on 29/05/2019 Dr. Nicky Sah, the then
M&HO-1 at Tinsukia Civil Hospital, examined the victim. He stated that on examination
Dr. Nicky Sah found the following:-
In history, it was stated that the victim was sexually assaulted by her uncle in January
2019, but the date and time could not be remembered. Her menarche was at the age of
13. LMP was in January 2019. No menstruation at the time of examination. Total
dentition was 28. No injury was detected on her whole body. Abdominal examination
revealed a 20-week-sized uterus. No injury detected in the genital area. In her opinion,
there was an intrauterine pregnancy of 21 weeks and 5 days in the victim. The victim
was between 18 and 19 years old. He has stated that P.Ext. 2 is the medical report and
P.Ext. 2(1) is the signature of Dr. Nicky Sah, which he knows.
In his cross-examination, PW2 stated that the medical report does not mention a case
number. He stated that if a woman is pregnant in the first week of January 2019, she
won’t have a period in January 2019. He further stated that he cannot say whether the
instant medical report was prepared in connection with this case.
PW3:
The informant, who deposed as PW3, has stated that the victim is his daughter and the
accused is his brother-in-law. He has stated that the menstruation period of his victim
daughter became irregular after returning from the house of the accused. He has stated
that he sent his daughter with her mother for a medical checkup, and during the medical
investigation, it was discovered that the victim was pregnant for 5 months. He stated that
Page No.# 6/13on being scolded, the victim told that she became pregnant through the accused, who is
her MOUSA. He further stated that the victim suffered a miscarriage as she sustained
injuries to her stomach. Then he lodged the ejahar vide P.Ext. 3 against the accused.
P.Ext. 3(1) is his signature.
In his cross-examination, PW3 has stated that he does not know the contents of the
ejahar. He has stated that his daughter never informed them about her pregnancy for 5
months. He denied the suggestion that he did not state before the police and did not state
in the ejahar that on being scolded, the victim told that she became pregnant from the
side of the accused, her MOUSA.
PW4:
The last witness to be examined by the prosecution is the mother of the victim, who
stated that her daughter went to the house of the accused to stay there for a few days at
the behest of the accused. After returning from the house of the accused, the
menstruation period of the victim stopped and on being asked, the victim told her that
her MOUSA gave her snacks, after taking which she became unconscious, and the
accused, under such condition, gagged her mouth and committed rape on her. PW4 has
stated that the victim found that at night, the door of the room was open where she was
sleeping, and the accused committed rape on the victim for 2/3 days. PW4 further stated
that she took the victim for a medical check-up, where she was detected to be 5 months
pregnant. She has stated that after a few days, the victim had a miscarriage after
sustaining injuries to her stomach.
During her cross-examination, PW4 denied the suggestion that she had not stated before
the police the facts whatever she had deposed in her evidence-in-chief. She has also
denied the suggestion that she has deposed falsely against the accused to cover the fact
that the victim was a consenting party to the incident.
7. Evidence led by defence: NIL
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8. Arguments before the learned Trial Court:
While the Addl. P.P. had submitted that the prosecution had proved the case against the
accused; it was argued for the defence that the victim was a consenting party to the
accused’s act. It was also argued that if a woman is pregnant in December, she will not
have menstruation in the subsequent month of January, and in May, she cannot carry a
pregnancy of 5 months. It was argued that the fact that the victim did not disclose the
incident to anyone till detection of her pregnancy at 5 months creates doubt. Further,
there are some contradictions in the evidence of the prosecution witnesses, and thus, the
prosecution’s case cannot be relied upon. Hence, it was prayed that the accused be
acquitted of the charge levelled against him.
9. Decision of the Learned Trial Court :
The learned Trial Court observed that in the absence of an eyewitness, the evidence of
the victim is most vital in this case. The fact of the victim having gone to the house of
the accused to stay for a few days is not in dispute. It was not in dispute that after the
incident, the victim stayed in the house of the accused for about 14/15 days, and then she
was brought by her brother. It is in evidence that the accused gagged her mouth with his
hand and committed rape on her. On that day, at first, the accused touched different body
parts of the victim and asked for a kiss, but the victim asked the accused not to do such
acts. The second incident happened about 3/4 days after the first incident, as stated by
the victim, without her knowledge, and then the next morning, she felt pain in her
vagina. The evidence of PW4 revealed that on being asked, the victim told her that her
MOUSA gave her snacks, after taking which she became unconscious, and the accused,
under such conditions, gagged her mouth and committed rape on her. The fact of the
pregnancy of the victim remained undisputed in view of the medical evidence.
The Learned Trial Court observed that from the materials available, it is correct to say
that the victim went to the house of the accused in the last part of December 2018 to stay
there, and she stayed there for about 15/20 days. The accused also admitted the said fact.
Page No.# 8/13
She had stated that after returning from the house of the accused, her menstrual period
had stopped. The defence plea that the victim was a consenting party to the act of the
accused was not believed. The victim was 19 years old. From the materials on record
and considering the age of the victim, it could not be presumed that the victim was a
consenting party to the act of the accused. It appeared to the Learned Trial Court that on
one occasion, the accused committed rape by gagging her mouth and on the second time,
the accused committed rape on her after administering her something, due to which she
became unconscious. The defence plea that till the detection of her pregnancy at 5
months, the victim did not disclose the incident to anyone, which creates a doubt, was
not believed by the learned Trial Court, since the victim may hesitate to disclose the
same out of fear, or it may be that the victim could not know the result of that physical
relationship. Therefore, she did not know why her menstrual period became irregular. It
was natural for a victim girl of such a backward area not to be aware of the
consequences of such a relationship. Further, in most cases, the victims in such a rural
area feel shy about disclosing such incidents.
As per the learned Trial Court, although extensively cross-examined, the defence side
failed to assail the victim’s evidence. The defence tried to shake the evidence of the
victim by putting some contradictory questions to her, but the victim withstood her
cross-examination. She had clearly stated that she was subjected to rape by the accused
several times; on the first day by gagging her mouth and on the second day by
administering something to her, due to which she became unconscious. The evidence of
the victim was considered to be supported by the evidence of PW3 and PW4. The
accused failed to give any reasonable reply in his defence. In his statement recorded u/s.
313 Cr.P.C, the accused did not take any plea except denying the allegations. The record
did not speak about any previous enmity between the accused and the family of the
victim. The Learned Trial Court failed to find any reason why the victim would bring
false allegations against the accused, being her uncle. Hence, the evidence of the victim
Page No.# 9/13remained intact and consistent. Accordingly, the accused was found guilty of committing
rape on the victim and was convicted under Section 376 of the IPC.
Observing that the accused is a mature person and the victim was his niece, the accused
had undermined his moral and social responsibility towards his niece to fulfil his
boastful lust. The Court found it just and proper to sentence the accused to undergo
rigorous Imprisonment for 10 years for his offence u/s. 376 IPC, and to pay a fine
of Rs. 10,000/~ in default to S.I. for another 6 months. The accused was entitled to
have the previous hazoti period set off against the total period of conviction as per
section 428 Cr.P.C. The accused was in jail from 30/05/2019 to 12/06/2019 during the
investigation, and is presently serving his sentence.
10. Proceedings in this appeal:
The learned counsel for the appellant has submitted that the victim’s statement differed
at different points in time and was inconsistent. The statement of the victim as recorded
by the investigating officer, the statement recorded under Section 164 of the Cr. P.C. and
the statement given during the Trial were inconsistent and contradictory. The learned
counsel submitted that the learned Trial Court failed to notice the inconsistencies and
therefore had arrived at an erroneous conclusion regarding the guilt of the appellant.
The learned counsel has submitted that the Investigating Officer in the Trial had not
been brought into as a PW and therefore, in the absence of an opportunity to cross-
examine him, the defence was put to disadvantage when the victim could not be
confronted with the statements made under Section 161 Cr. P.C. and the material
contradictions could not be brought to the notice of the Trial Court.
The learned counsel has submitted that the contradictions and inconsistencies were very
material in the present case, since in her 161 statement, the victim had stated that she
was violated twice when no one was present in the house, in her 164 statement, she
stated that she was violated once after her aunt had gone to sleep and on later occasions
Page No.# 10/13when she lost consciousness after he fed her something, in the trial, whe stated that she
was violated when her cousin her went away from her side during the first night itself
and thereafter, on later occasions, he had sex with her without her knowledge when she
was sleeping and she realized it in the following mornings only.
According to the learned counsel, had the inconsistencies been allowed to be brought to
light by subjecting the investigation officer to cross-examination, the same would have
been enough to raise reasonable doubts in the story of the victim, who was the sole
witness to the incidents. The learned counsel has submitted that when such
inconsistencies, coupled with the unexplained delay in lodging of the FIR, would drill
enough holes in the story of the prosecution to entitle the appellant to a fair acquittal.
The learned counsel has also relied upon the evidence of the victim/victim to submit that
her story was a highly improbable one, given the facts that she had herself admitted that
the rape on each occasion had happened during the night when the whole family of the
accused, including his wife, divorced daughter and minor son was present in a house
which admittedly did not have any doors between the rooms. The victim in her
statement had never stated that she had eaten the chocolate given by the accused, that
she lost consciousness and that thereafter she was raped.
The very fact that the victim did not explain why she had told about the alleged repeated
incidents to the wife of the accused or to her parents for a period of 5 months raises very
strong doubts about her story. The Learned counsel has submitted that it is highly
inconceivable that a healthy girl of 19 years would not realise about her violation when
it was allegedly being committed and would realise it only the next morning. He has
accordingly prayed for the acquittal of the accused by setting aside the order of
conviction and sentence passed by the learned Trial Court.
He has placed reliance on the judgment of the Apex Court in the case of Vijayan vs
State of Kerala, reported in (2008) 14 SCC 763, and Kishan Singh (D) through LRs
vs. Gurpal Singh and others, reported in (2010) 8 SCC 775, to emphasise that the
Page No.# 11/13delay in lodging the FIR, as well as the delay in informing the near family etc.,
regarding an allegation of rape, could be fatal for the prosecution, at least in cases where
the evidence of the sole material witness is not trustworthy or is inconsistent.
He has also placed reliance on the judgments delivered in the cases of Bahadur Naik vs
State of Bihar, reported in (2000) 9 SCC 153 and V K Mishra vs. State of Uttarakhand,
reported in (2015) 9 SCC 588 to emphasize the importance of bringing forth the
contradiction in the evidence of the witness and the detrimental effect on the defence
sought to be relied upon by the accused in the absence of opportunity to cross-examine
of the investigating officer.
The Learned APP has submitted that there is no material contradiction in the
evidence led by the sole material witness, and the proven facts of the case have not been
controverted by the appellant sufficiently, either before the learned Trial Court or before
this Court, to entail any interference in the judgment and order impugned in this appeal.
He has submitted that the allegations levelled in the present case are serious and
heinous, since a niece has levelled allegations of rape against her own uncle, which
allegedly occurred in his house when she went to visit him. he has submitted that the
accused had been rightly convicted and sentenced. The appeal did not require any
further consideration.
The learned legal aid counsel has adopted the arguments of the learned APP and has
prayed for dismissal of the appeal.
11. Conclusions in this appeal:
This Court has considered the submissions made by the learned counsel for the
contesting parties and has also perused the record. The Court finds force in the
submission of the learned counsel for the appellant that the victim had indeed given
different versions of the alleged assaults upon her at different points in time. The
variations were not minor; the number of times and the manner in which the assault had
Page No.# 12/13taken place varied materially in the different versions.
In the opinion of this Court, the submission of the counsel for the appellant has force
that had such material contradictions/variations been brought on record by the defence
during the trial, the same would have materially affected the conclusions arrived at by
the learned Trial Court. This aspect of the matter would be highly relevant, since the
accused was convicted and sentenced solely based on the victim’s evidence and the
Investigating Officer was, unfortunately, not brought in as a witness nor subjected to
cross-examination.
As correctly pointed out by the learned Counsel for the appellant, the victim in her
evidence before the learned Trial Court did not state that she had consumed the
chocolate given by the accused and that she had become unconscious thereby. The
assertion of the victim that she had realised about the sexual offence committed by the
accused during the night only on the following morning does not, as it cannot, inspire
confidence enough to convict the accused.
This Court also notices that the victim gives no explanation for not divulging about the
assaults to the wife of the accused or to her own family, and why she continued to stay
in the same household with the accused for another 15-20 days when, allegedly, he had
raped her on the first night itself.
The victim has also admitted that the room in which she had slept the first night, when
the first incident allegedly took place, was a room without doors. Later in her cross-
examination, she admitted that none of the rooms of the house, except the
bathrooms/toilets, had any doors. It is in her evidence that the construction of the rooms
was such that even a loud voice would carry over to the other rooms. In the teeth of such
evidence, this Court is unable to bring itself to believe that a forced sexual assault could
have been committed by the accused in the manner described by the victim, which, as
per evidence led at the trial, had taken place in the night time, inside rooms with no
doors and when the entire family of the accused was also sleeping in the same house.
Page No.# 13/13
While this Court is not raising any doubts about the pregnancy undergone by the victim,
at the same time, this Court does not find enough evidence to uphold the conclusions of
guilt of rape arrived at by the learned Trial Court.
Though the victim was found to be pregnant and she had immediately named the
accused as the cause behind her ordeal, no DNA test had been conducted to determine
the paternity of the fetus. The investigating officer was not examined during the Trial.
The delay, firstly in divulging about the alleged offence to the family and then in lodging
the FIR, and the improbable circumstances described by the victim are all factors that
lead this Court to hold that the view taken by the learned Trial Court, convicting the
accused under Section 376 of the IPC, cannot be sustained. The Trial Court went so far
as to presume and imagine the circumstances of the delay, even when no explanations
were forthcoming.
The judgment and order dated 13th day of September, 2024, pronounced by the learned
Sessions Judge (FTC-2) Tinsukia, in Sessions Case No. 13 (T) of 2021) arising out of
Tinsukia P.S. Case No. 739/2019, convicting the appellant under Section 376, IPC, is
accordingly set aside and quashed. Appeal is disposed of.
The Registry will issue a release warrant forthwith in favour of the appellant.
Return the Trial Court Records along with a copy of this order.
JUDGE
Comparing Assistant