Gauhati High Court
Dipak Nayak vs The State Of Assam on 27 April, 2026
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/11
GAHC010055412022
2026:GAU-AS:5858-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/40/2022
DIPAK NAYAK
DIBRUGARH, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
2:ANIB GHATOWAR
S/O-SRI SHYAM SUNDAR GHATOWAR
R/O-CHAPORI NEPALI GAON
P.S.-KHOWANG
DIST.-DIBRUGARH
ASSAM
PIN-785675
3:BUDHNA GHATOWAR
S/O-SRI SHYAM SUNDAR GHATOWAR
R/O-NEPALI GAON
P.S.-KHOWANG
DIST.-DIBRUGARH
ASSA
Advocate for the appellant : Mr. A. Sandilya, Amicus Curiae,
Advocate for the Respondent No.1 : Ms. A. Begum, Addl. P.P., Assam.
Advocate for the Respondent No.2 : Dr. P. Agarwal, Legal Aid Counsel.
Date of Hearing & Judgment : 27.04.2026
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:::BEFORE:::
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
JUDGMENT & ORDER (ORAL)
(M. Zothankhuma, J)
Heard Mr. A. Sandilya, Learned Amicus Curiae, appearing for the appellant.
Also heard Ms. A. Begum, Learned Addl. P.P. Assam, appearing for the
State/respondent No.1 and Dr. P. Agarwal, Learned Legal Aid Counsel, appearing
for the respondent No. 2 (informant).
2. This appeal has been filed by the appellant against his conviction under
Section 376AB IPC and Section 6 of the POCSO Act, by the learned Sessions
Judge, Dibrugarh, in POCSO Case No. 36/2020, arising out of Khowang P.S.
Case No.76/2020, vide the impugned Judgment dated 11.02.2022. The
appellant was subsequently sentenced to undergo rigorous imprisonment for 20
years with a fine of Rs.3000/-, in default, to undergo simple imprisonment for 1
month, under Section 6 of the POCSO Act, in view of Section 42 of the POCSO
Act.
3. The appellant’s counsel submits that there is a delay in filing the FIR. He
also submits that though the victim has stated in her testimony before the Court
and under Section 161 Cr.P.C., that she had been raped by her uncle (mother’s
brother) in the house of her uncle, the victim in her Section 164 Cr.P.C.
statement has stated that she had been raped in her own house. This
discrepancy in the place of occurrence puts a question mark on the reliability of
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the victim as a witness. He however, submits that the victim’s Section 164
Cr.P.C. statement had not been exhibited during trial, nor was the evidence of
the person who recorded the said statement under Section 164 Cr.P.C. recorded
before the learned Trial Court. He accordingly submits that when conviction has
been made on the basis of the sole statement of the victim, the victim’s
statement has to be truthful and should inspire the confidence of the Court.
However, in the present case, the discrepancy in the place of occurrence of the
alleged incident not being ascertained by the victim, the entire evidence of the
victim girl could not have been the sole basis for convicting the appellant under
Section 376AB IPC and Section 6 of the POCSO Act.
4. Ms. A. Begum, learned Addl. P.P. submits that though there is some
discrepancy in the testimony of the victim when compared with the statement
given by her under Section 164 Cr.P.C. regarding the place of occurrence, the
fact that the victim had been subjected to aggravated penetrative sexual assault
by the appellant was not in doubt, as the testimony of the victim had been
corroborated by the medical evidence. She also submits that the evidence of the
victim showed that the Tea Garden Manager had beaten up the appellant, which
the appellant did not deny in his examination under Section 313 Cr.P.C. The
learned Addl. P.P. further submits that the discrepancy in the testimony of the
victim and her statement under Section 164 Cr.P.C. could have been clarified, if
the appellant had cross-examined the victim further during recording of the
victim’s evidence. However, the same was not done. She submits that the
evidence recorded by the learned Trial Court with regard to the aggravated
penetrative sexual assault was only with regard to one incident, while the victim
(PW-3) had clearly stated in her examination-in-chief that the appellant had
done the same thing upon her ‘on three days.’ He submits that the victim’s
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statement under section 164 Cr.P.C. had not been exhibited during trial and
neither was the Judge who recorded the same examined. As such, the victim’s
statement made under section 164 Cr.P.C. should be ignored.
5. The learned Addl. P.P. further submits that the fact that the appellant was
bleeding from her private parts even after the incident, has corroborated the
evidence of the victim that she had been raped by the appellant. This fact of the
victim bleeding from the private parts has also been corroborated by the
evidence of PW-2, who is the Aunt of the victim. She accordingly submits that
no ground has been made out by the appellant for interfering with the
impugned judgment passed by the learned Trial Court.
6. Dr. P. Agarwal, Learned Legal Aid Counsel for the respondent No. 2
(informant) submits that the foundational facts of the appellant having
committed aggravated penetrative sexual assault on the victim having been
proved by the prosecution, the reverse burden of proof as per Section 29 of the
POCSO Act was required to be discharged by the appellant. However, the same
has not been done. She further reiterates the submission made by the learned
Addl. P.P. and prays that the appeal should be dismissed.
7. We have heard the learned counsels for the parties.
8. The prosecution case is to the effect that an FIR dated 13.07.2020 had
been submitted by the informant (PW-1), to the effect that the appellant, who
was a resident of Halmari Tea Estate, had raped his 7 year old niece when she
visited the appellant’s house. The victim had informed them about the incident
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on 12.07.2020, whereupon, he lodged the present FIR on 13.07.2020.
Consequent to the FIR, Khowang P.S. Case No. 76/2020 under Section 376AB
IPC read with Section 4 of the POCSO Act was registered. After investigation
was completed, the Investigating Officer filed a charge-sheet, having prima facie
established a case under Section 376AB IPC read with Section 6 of the POCSO
Act against the appellant.
9. The learned Trial Court thereafter framed charge under Section 376AB IPC
and Section 6 of the POCSO Act against the appellant, to which he pleaded not
guilty and claimed to be tried. The learned Trial Court thereafter examined 6
prosecution witnesses.
10. PW-1, who is the informant, stated in his evidence that his wife had told
him that the appellant had raped the victim and on enquiring the same from the
victim, the victim told him that the appellant had climbed upon her in the house
of the appellant. Thereafter, the victim was taken to the Tea Garden Hospital by
PW-1 and his wife, inasmuch as, the mother of the victim girl had eloped with
another person much prior to the incident. The Nurse at the Tea Garden
Hospital stated that the victim had been raped. PW-1 then stated that the Tea
Garden Manager had sent the appellant to the police station.
11. The evidence of PW-2 is to the effect that she was the elder sister of the
victim’s mother and that during the relevant time, the victim had been in the
house of the appellant, wherein she stayed for about four days. After returning,
blood had come out from the victim while she was urinating. As such, the victim
was taken to the Tea Garden Hospital. The Doctor then told her that it was a
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rape case. On enquiring about the same with the victim, the victim told her that
the appellant had raped her. The Doctor of the Tea Garden Hospital then sent
them to Khowang Hospital and from there to Dibrugarh Hospital. Thereafter, she
was brought to the Court and the police recorded her statement.
12. PW-3, who is the victim, was first asked preliminary questions by the
learned Trial Judge, who thereafter found that the victim was competent to give
evidence. The victim, who was 8 to 9 years at the time of adducing evidence,
stated that she had gone to his mother’s brother’s house, by working there. She
also stated that her mother had eloped and she stayed with her father and her
two brothers. PW-3 stated that she stayed in her uncle’s house for 4 days,
where her grandfather also resided. Her uncle came home drunk and pulled her
onto the bed. He then took off her clothes including her half pant. He put a
handkerchief in her mouth. Her uncle then pulled off all his clothes and put his
private parts into her private parts. She stated that she felt pain and blood came
out. She could not shout as a cloth was stuffed into her mouth. Thereafter, her
uncle went away to another room to sleep and she slept alone that night. In the
morning, when she went for urinal, she saw blood coming out. She informed the
incident to her father’s elder brother’s wife, who took her to the hospital, where
a lady doctor examined her. Thereafter, the garden manager caught hold of the
appellant and beat him up. The doctor gave her some medicines to apply to her
private parts, whereupon the bleeding stopped. She was then taken to the
Police Station and then again to a medical hospital. PW-3 stated that she
narrated the incident in the Police Station and then she was taken to the Court.
PW-3 also stated that her uncle had raped her for 3 days. When she was asked
as to why she remained there after what had been done by the appellant, PW-3
stated that she had gone to see the Durga Puja and thus remained there.
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13. The evidence of PW-4, who is the father of the victim, is to the effect that
the victim was 7 years old. PW-4 stated that his wife had eloped with another
person and that he was staying with his daughter and 2 minor sons. Further,
his father, brother and sister-in-law with 3 children, also stayed in the same
house. He stated that he was informed by his brother that his brother-in-law
had raped his daughter and had asked him to come to his house. However, due
to the lockdown, PW-4, who was working in Arunachal Pradesh, could not go
home.
14. The evidence of PW-5 (medical doctor), is to the effect that his findings
were suggestive of recent attempted forceful penetration and that there was
evidence of recent injuries detected on the private parts of the victim, as
described in Column No. 20 (b)(c) of the Medical Examination Report conducted
on the victim, which was in respect of Vulva and Hymen, wherein it has been
stated as follows:-
“(b) Vulva
Introituses is red, oedematous, tenderness and
active bleeding present.”
(c) Hymen
15. The evidence of PW-5 regarding his findings, on examining the victim girl,
are reproduced herein below as follows:-
“On examination, I found the following-
On genital examination: Genital organs were developed.
Vulva and Hymen: Introituses was red, oedematous, tenderness and
active bleeding present.
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Vagina and cervix could not be examined.
Uterus not palpable per abdomen.
Evidence of veneral diseases was not detected clinically.
Evidence of injury on her body not detected but injury on private
part detected.
Vaginal smears were taken from clitoris and hymenal margin.
Evidence of struggles not detected.
Evidence of stains of blood detected on the wearing under garment
(panty) of the alleged victim girl collected and properly packed,
sealed and handed over to escorting police for further necessary
investigation.
Smti Laxmi Ghatowar was referred to Department of Gynecology,
AMCH, Dibrugarh for treatment.
Radiological finding:
1. X-ray elbow joint (AP view)- Epiphysis not fused.
2. X-ray wrist joint (AP view)- Epiphysis not fused.
3. X-ray of shoulder joint (AP view)- Epiphysis not fused.
Laboratory investigation: Microscopic examination of vaginal smears
did not show the presence of spermatozoa or gonococcus.
OPINION:-
1. Genital findings are suggestive of recent attempted forceful
penetration.
2. Her age is above 9 (nine) years and below 10(ten) years.
3. There is evidence of recent injuries detected on her private parts
as described in column no. 20 (b), (c).
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Ext. 1 is the Medico-legal Report wherein Ext. (2) and Ext. (3) are
my signatures.”
16. The evidence of PW-6, who is the Investigating Officer, is to the effect
that he recorded the statement of the informant, victim and witnesses. He also
had the medical examination of the victim done and that he found a prima facie
case under Section 376(AB) of the IPC read with Section 4 of the POCSO Act
against the appellant.
17. On considering the fact that the testimony of the victim girl, which we find
to be truthful, has been corroborated by the medical evidence, there is no
reason for us to doubt the fact that the appellant had committed aggravated
penetrative sexual assault on the victim, only because there was some
discrepancy regarding the place of the occurrence of the incident in the victim’s
testimony, vis-Ã -vis her statement under Section 164 Cr.PC. In her testimony
before the learned Trial Court, the victim stated that she was raped in the
appellant’s house, while in her Section 164 Cr.PC statement, she had said that
she had been raped in her house. The statement under Section 164 Cr.PC was
not exhibited by the Prosecution and neither was the Judge who recorded the
same, made a Prosecution Witness. The victim could have been cross-examined
by the appellant during trial regarding the place of occurrence. However, the
same was not done by the appellant. In any event, the victim’s statement under
Section 164 Cr.P.C. was not exhibited in the Trial Court and neither was the
Magistrate who recorded the said statement examined as a witness. As such,
there is no ground to make any findings with regard to the victim’s statement
under Section 164 Cr.P.C. In any event, we do not find any ground to accept the
submission of the learned counsel for the appellant that no incident of rape had
been committed on the victim. Even if there was some discrepancy in the
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evidence of the victim, regarding the place of occurrence of the crime, we are
convinced with the truthfulness of the victim’s testimony that the appellant had
raped the victim. Further, the fact that blood was oozing from her private parts
has also been corroborated by PW-2 and PW-5. There is nothing in the evidence
of the witness to suggest that there was any enmity between the victim’s family
and the appellant, for the victim girl to have made a false accusation of rape
against the appellant. It is also not the case of the appellant that the victim had
been tutored to make a false case of rape against the appellant.
18. On considering the testimony of the victim, which has been corroborated
by the medical evidence, we do not find any infirmity with the decision of the
learned Trial Court. Further, the evidence of the victim inspires our confidence.
19. With regard to the stand of the appellant’s counsel that there was delay in
filing the FIR, which cast a doubt on the authenticity of the allegation of rape
made by the victim, it would be profitable to refer to the decision of the
Supreme Court in the case of State of Himachal Pradesh vs. Shree Kant
Shekari, reported in (2004) 8 SCC 153, wherein it has been held that delay
in lodging an FIR in a rape case cannot be used as a ritualistic formula for
discarding the prosecution case or doubting its authenticity, when the testimony
of the victim appears to be totally reliable, trustworthy and credible.
20. The above being said, the evidence shows that the victim had stayed with
the appellant for 4 days and the incident had been informed to others on
12.07.2020 only. The FIR was lodged on the next day thereafter i.e.,
13.07.2020. On considering the above facts, we do not find any reason to hold
that the delay in filing the FIR, which has been explained, can be a ground to
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doubt the authenticity of the charges foisted upon the appellant.
21. One other interesting fact is that the evidence of PW-3 (victim) is to the
effect that she had stated that the garden manager had assaulted the appellant.
This is borne out by the answer given by the appellant to the question put to
the appellant under Section 313 Cr.PC, where he has admitted the fact that the
garden manager had beaten him up.
22. On considering the evidence of the victim, which we find to be truthful
and which has been corroborated by the evidence of PW-2 and PW-5, we do not
find any reason to interfere with the impugned judgment and order.
23. The appeal is accordingly dismissed.
24. Send back the TCR.
25. In appreciation of the assistance provided by the learned Amicus Curiae
and the Legal Aid Counsel, their fees should be paid by the High Court Legal
Services Committee.
JUDGE JUDGE
Digitally
Comparing Assistant
Anupa signed by
Anupam
m Chutia
Date:
2026.04.28
Chutia 19:32:52
-07'00'