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GAHC010114912025

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./193/2025

RAM LOCHAN CHOUDHURY

S/O LATE JALESWAR CHOUDHURY, R/OI VILL- DOIGRUNG NO. 2, P.S.-

GOLAGHAT, DIST- GOLAGHAT, ASSAM

VERSUS

THE STATE OF ASSAM AND ANR

REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

2:SMTI MUNI TELENGA

W/O SRI BIRAJ TELENGA

R/O VILL- NO. 2 DOIGRUNG TEA ESTATE

JONGHOL LINE

P.S.- GOLAGHAT

PIN-785702

DIST- GOLAGHAT

ASSA

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

For the appellant : Mr. P. K. Munir,

For the respondents : Mr. R. R. Kaushik, Add.PP.,

Mr. K. P. Pathak (for R 2)

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Date of hearing : 25.02.2026

Date of judgment : 25.02.2026

JUDGMENT & ORDER

(M. Zothankhuma, J)

1. Heard Mr. P.K. Munir, learned counsel for the appellant and Mr. R. R.

Kaushik, learned Additional Public Prosecutor, Assam for the State. Mr. K. P.

Pathak, learned counsel appears for the respondent No. 2.

2. This is an appeal against the judgment dated 26.09.2023 passed by the

learned Special Judge, POCSO at Golaghat in Special POCSO Case No.25/2022,

arising out of Golaghat P.S. Case No.69/2022, by which the appellant had been

convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo

rigorous imprisonment for life with a fine of Rs.50,000/-, in default, to undergo

rigorous imprisonment for 3 (three) months.

3. The case against the appellant is that he had raped the victim girl who was

an alleged minor, due to which the appellant has been convicted under Section

6 of the POCSO Act, 2012. The ossification test that had been conducted on the

victim shows that she was between 16 and 18 years during the time the

incident of rape had occurred. Keeping in view the decision of the Supreme

Court in the case of Ram Suresh Singh vs. Prabhat Singh @ Chhotu &

Another, reported in (2009) 6 SCC 681 and Jyoti Prakash Rai @ Jyoti

Prakash vs. State of Bihar, reported in (2008) 15 SCC 223, the age

determined by an ossification test not being a precise one and therefore a 2

year margin of error may be applied on either side of the age of the victim.

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4. In the case of State of Uttar Pradesh vs. Chhoteylal, reported in

(2011) 2 SCC 550, the Supreme Court had held that there is no such Rule,

much less and absolute one that two years have to be added to the age of the

victim, determined by a doctor. This decision had been made on the basis of a

Three Judges Bench decision of the Supreme Court in the case of State of

Karnataka vs. Bantara Sudhakara @ Sudha & Anr, reported in (2008) 11

SCC 38, wherein it has been stated at para 12 as follows:-

"12. .................. Additionally, merely because the doctor's evidence

showed that the victims belong to the age group of 14 to 16, to conclude

that the two years' age has to be added to the upper age-limit is without

any foundation."

5. The above being said, in the case of Rajak Mohammad vs. State of

Himachal Pradesh, reported in (2018) 9 SCC 248, the Supreme Court has

held that while it is correct that the age determined on the basis of a

radiological examination may not be an accurate determination and sufficient

margin either way has to be allowed, yet the totality of the facts with the report

of the radiological examination leaves room for ample doubt with regard to the

correct age of the prosecutrix. The benefit of the aforesaid doubt would

naturally go in favour of the accused.

6. Though the above judgments are in relation to giving the benefit of ± 1 or 2

years to an accused on whom an ossification test had been conducted. One

issue that arises is whether to determine the age of the accused, the above said

principle of ± 2 years margin of error can be applied on an ossification test

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conducted on a victim. Though it is settled law that in the event of there being 2

views, one in favour of the accused and one in favour of the State, we should

lean in favour of the accused, the question whether margin of error of plus 1 or

2 years can be given, when it comes to determining the age of the victim after

an ossification test is conducted, is a moot question. The above being said, it is

the case of the prosecution that a child has been born out of the rape that had

been committed by the appellant on the victim. On a query made to the learned

counsels for the parties, as to whether a DNA test should be conducted, to

determine the paternity of the child vis-a-vis the appellant, the counsels of the

parties had submitted that they did not have any objection if a DNA test was

conducted on the child and the appellant.

7. In the case of Sudip Biswas @ Bura vs. The State of Assam &

Another (Criminal Appeal 73/2023), the Division Bench of this Court, vide

Order dated 13.10.2023, had directed that a DNA test/profiling should be

conducted on the child of the victim and the accused/appellant therein, to get to

the truth of the matter, as the offence of rape was an offence against the

society at large and as the objective of a Court proceeding was to find out the

truth. This Court, thus held that though it might be argued that a right to

privacy is a part of the right to life and personal liberty under Article 21 and that

Article 20(3) provides that nobody should be compelled to give evidence against

himself, the said right cannot over-ride the search for the truth.

8. In the case of Harishchandra Sitaram Khanorkar Vs. State of

Maharashtra, reported in 2023 (1) ABR (CRI) 259, the Division Bench of

the Bombay High Court has held that there can be no doubt that there have

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been remarkable technological advancement in forensic science and in scientific

investigations. The DNA testing has an unparalleled ability both to exonerate the

wrongly convicted person and to identify the guilty. It has the potential to

significantly improve both the criminal justice system and police investigative

practices. Modern DNA testing can provide powerful new evidence unlike

anything known before DNA technology. It provides not only guidance to the

investigation, but also supplies the Court accurate information regarding the

identification of the criminal.

9. In the case of Pravin Suryabhanji Gube Vs. State of Maharashtra,

reported in 2019 (2) ABR (CRI) 70, the Bombay High Court has held that

DNA is a modern scientific technique, which is very useful and helpful not only

for investigators, but also for Courts to reach to the truth. DNA conclusively

points the finger of guilt towards the perpetrator of a crime. However, while

considering this scientific piece of evidence, the Court is required to examine as

to whether at any point of time, it could be said that there was the slightest

chance of playing with the samples and/or tampering with it by anyone.

10. In the case of Mukesh Vs. State (NCT of Delhi) 2017 6 SCC 1, the

Hon'ble Supreme Court spoke on the importance of DNA evidence. It observed

in paragraph Nos. 216 and 217 as follows:-

"216. DNA technology as a part of Forensic Science and scientific

discipline not only provides guidance to investigation but also supplies the

court accrued information about the tending features of identification of

criminals. The recent advancement in modern biological research has

regularized Forensic Science resulting in radical help in the administration

of justice. In our country also like several other developed and developing

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countries, DNA evidence is being increasingly relied upon by courts. After

the amendment in the Criminal Procedure Code by the insertion of Section

53A by Act 25 of 2005, DNA profiling has now become a part of the

statutory scheme. Section 53A relates to the examination of a person

accused of rape by a medical practitioner.

217. Similarly, under Section 164A inserted by Act 25 of 2005, for

medical examination of the victim of rape, the description of material

taken from the person of the woman for DNA profiling is a must.”

11. In the case of Pantangi Balarama Venkata Ganesh Vs. State of A.P,

reported in 2009 14 SCC 607, the Supreme Court held that experts opined

that identification by DNA profiling is hundred percent precise. However, there is

a need for quality control. Further, the evidence of experts is admissible in

evidence in terms of Section 45 of the Evidence Act, 1872. The Supreme Court

in the above case has held at paragraph No. 41 as follows:-

“41. Submission of Mr. Sachar that the report of DNA should not be relied

upon, cannot be accepted. What is DNA? It means:

(Deoxyribonucleic Acid), which is found in the chromosomes of the cells of

living beings is the blueprint of an individual. DNA decides the

characteristics of the person such as the colour of the skin, type of hair,

nails and so on. Using this genetic fingerprinting identification of an

individual is done like in the traditional method of identifying fingerprints

of offenders. The identification is hundred percent precise, experts opine.”

12. In the case of Manoj Vs. State of M.P, reported in AIR Online 2022

SC 767, the Supreme Court has held at paragraph No. 158 as follows:-

"158. This Court, therefore, has relied on DNA reports, in the past, where

the guilt of an accused was sought to be established. Notably, the reliance

was to corroborate. This Court highlighted the need to ensure quality in

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the testing and eliminate the possibility of contamination of evidence; it

also held that being an opinion, the probative value of such evidence has

to vary from case to case."

13. Section 53A(2)(iv) Cr.P.C, which is equivalent to Section 52(2)(iv) BNSS

provides that a registered medical practitioner shall prepare a report of his

examination, of a person/material taken from the person, arrested on a charge

of committing an offence of rape or an attempt to commit rape by way of DNA

profiling, if there are reasonable grounds for believing that an examination of

his person will afford evidence as to the commission of such offence. Section

164A (2)(iii) Cr.P.C, which is equivalent to Section 184(2)(iii) BNSS provides that

the registered medical practitioner, to whom a victim of rape or attempted to be

raped is sent, shall, without delay, examine her in person and prepare a report

of his examination giving various particulars, one of them being, the description

of material taken from the person of the woman for DNA profiling.

14. Section 52 BNSS Section 184 BNSS are reproduced herein below as

follows:-

“Section 52 of BNSS:-Examination of person accused of rape

by medical practitioner ---

(1) When a person is arrested on a charge of committing an offence of

rape or an attempt to commit rape and there are reasonable grounds

for believing that an examination of his person will afford evidence as

to the commission of such offence, it shall be lawful for a registered

medical practitioner employed in a hospital run by the Government or

by a local authority and in the absence of such a practitioner within

the radius of sixteen kilometers from the place where the offence has

been committed by any other registered medical practitioner, acting at

the request of a police officer not below the rank of a sub-inspector,

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and for any person acting in good faith in his aid and under his

direction, to make such an examination of the arrested person and to

use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination

shall, without delay, examine such person and prepare a report of his

examination giving the following particulars, namely;

(i) the name and address of the accused and of the person by whom

he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused

for DNA profiling, and”.

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion

arrived at.

(4) The exact time of commencement and completion of the

examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward

the report of the investigating officer, who shall forward it to the

Magistrate referred to in section 193 as part of the documents referred

to in clause (a) of Sub-Section (6) of that section.

Section 184 BNSS:- Medical examination of the victim of

rape---

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(1) Where, during the stage when an offence of committing rape or

attempt to commit rape is under investigation, it is proposed to get the

person of the woman with whom rape is alleged or attempted to have

been committed or attempted, examined by a medical expert, such

examination shall be conducted by a registered medical practitioner

employed in a hospital run by the Government or a local authority and in

the absence of such a practitioner, by any other registered medical

practitioner, with the consent of such woman or of a person competent to

give such consent on her behalf and such woman shall be sent to such

registered medical practitioner within twenty-four hours from the time of

receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall,

without delay, examine her person and prepare a report of his

examination giving the following particulars, namely—

(i) the name and address of the woman and of the person by whom

she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for

DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived

at.

(4) The report shall specifically record that the consent of the woman or

of the person competent, to give such consent on her behalf to such

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examination had been obtained.

(5) The exact time of commencement and completion of the examination

shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the

report to the investigating officer who shall forward it to the Magistrate

referred to in section 193 as part of the documents referred to in clause

(a) of Sub-Section (6) of that section.

(7) Nothing in this section shall be construed as rendering lawful any

examination without the consent of the woman or of any person

competent to give such consent on her behalf.

Explanation – For the purposes of this section, “examination” and

“registered medical practitioner” shall have the same meanings as

respectively assigned to them in Section 51.

15. In the case of Santosh Kumar Singh Vs. State, reported in 2010 9

SCC 747, which was in respect of a young girl who was raped and murdered,

the DNA report relied upon by the High Court was approved by the Supreme

Court and held that the DNA report can be accepted as being scientifically

accurate and an exact science as held by the Supreme Court in Kamti Devi Vs.

Poshi Ram, reported in 2001 5 SCC 311.

16. In the case of Krishan Kumar Malik Vs. State of Haryana, reported in

2011 7 SCC 130, which was a case of gang rape, the prosecution had not

conducted the DNA test or made any analysis and matching of the semen of the

accused with that found on the undergarments of the prosecutrix. The Supreme

Court has held at paragraph No. 44 as follows:-

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44. Now, after the incorporation of Section 53-A in the Criminal

Procedure Code w.e.f. 23.06.2006, brought to our notice by the

learned counsel for the respondent State, it has become necessary for

the prosecution to go in for DNA test in such type of cases, facilitating

the prosecution to prove its case against the accused. Prior to 2006,

even without the aforesaid specific provision in Cr.PC the prosecution

could have still restored to this procedure of getting the DNA test or

analysis and matching of semen of the appellant with that found on

the undergarments of the prosecutrix to make it a foolproof case, but

they did not do so, thus they must face the consequences.”

17. In the case of Sandeep Vs. State of U.P, reported in 2012 6 SCC 107,

which was a case of murder of a pregnant girlfriend and the unborn child of the

accused, the Supreme Court held that the DNA report confirmed the accused as

the father of the unborn child.

18. In the case of Rajkumar Vs. State of M.P, reported in 2014 5 SCC

353, which was a case involving the rape and murder of a 14 year old girl, the

Supreme Court held that the DNA report established the presence of the semen

of the accused in the vaginal swab of the prosecutrix.

19. We have also noticed that in the case of Bhabani Prasad Jena Vs.

Orissa State Commission for Women, reported in 2010 8 SCC 633 and

Dipanwita Roy Vs. Ronobroto Roy, reported in 2015 1 SCC 365, DNA

testing had been allowed to determining the paternity of the child.

20. Keeping in view the above decisions and the order dated 13.10.2023

passed in Criminal Appeal 73/2023 (Sudip Biswas @ Bura vs. The State of

Assam & Another), we directed the learned Trial Court, vide order dated

16.09.2025, to take additional evidence under Section 391 Cr.P.C, which is

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equivalent to Section 432 BNSS, by taking steps for ensuring that a DNA

test/profiling of the appellant and the child of the victim alleged to have been

fathered by the appellant, is undertaken, after taking the samples from the

appellant and the child in the presence of the learned Judge of the learned Trial

Court.

21. In pursuant to the above, the Joint Director, Directorate of Forensic

Science, Assam, Kahilipara, has written a letter No. DFS-1632/25/28 dated

28.11.2025 to the Special Judge (POCSO), Golaghat, Assam with report No.

1632/25/7937/DNA-1079 dated 27.11.2025, issued by Ms. Violina Pathak,

Scientific Officer, DNA Typing Unit, Directorate of Forensic Science, Assam,

Kahilipara, which is to the effect that the baby of the victim has not been

fathered by the appellant. Ms. Violina Pathak also appeared virtually today and

stated that in terms of the report dated 27.11.2025, the DNA test/profiling

proved that the appellant was not the father of the child born to the victim.

22. The letter dated 28.11.2025, issued by the Joint Director, Directorate of

Forensic Science, Assam, Kahilipara and the letter dated 27.11.2025, issued by

Ms. Violina Pathak, Scientific Officer, DNA Typing Unit, Directorate of Forensic

Science, Assam, Kahilipara are made a part of the record and marked as

Annexure-X and Y respectively.

23. As can be seen from the evidence of the victim, i.e. PW-4, the appellant

has been projected to be the father of the baby. The evidence of the victim also

points to the victim having been subjected to penetrative sexual assault by the

appellant only. The victim has not stated anything in her evidence that she had

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sexual intercourse with any other person, other than the appellant. However,

Annexure-Y has shown that the said allegation is an outright lie. Though it is

settled law that the evidence of a prosecutrix has the same value as the

evidence of an injured witness and can be the basis for convicting an accused,

the same has to be truthful and should inspire the confidence of the Court. The

testimony of the victim however does not inspire the confidence of this Court

and does not appear to be truthful.

24. In the case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi)

reported in (2012) 8 SCC 21, the Supreme Court has held that conviction can

rest on the sole testimony of the prosecutrix, which should be of sterling quality.

Sterling quality has been defined by the Supreme Court in Rai Sandeep

(supra), where it has been held that the statement of a prosecutrix should be

consistent, natural and free from material contradictions. The stand of the

sterling witness should be consistent from the very beginning till the very end,

besides the witness being able to withstand any questions put to him or her.

Para 22 of the said judgement is reproduced herein below, as follows :-

“22. In our considered opinion, the ‘sterling witness’ should be of a very

high quality and caliber whose version should, therefore, be unassailable.

The Court considering the version of such witness should be in a position

to accept it for its face value without any hesitation. To test the quality of

such a witness, the status of the witness would be immaterial and what

would be relevant is the truthfulness of the statement made by such a

witness. What would be more relevant would be the consistency of the

statement right from the starting point till the end, namely, at the time

when the witness makes the initial statement and ultimately before the

Court. It should be natural and consistent with the case of the prosecution

qua the accused. There should not be any prevarication in the version of

such a witness. The witness should be in a position to withstand the

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cross-examination of any length and strenuous it may be and under no

circumstance should give room for any doubt as to the factum of the

occurrence, the persons involved, as well as, the sequence of it. Such a

version should have co-relation with each and everyone of other

supporting material such as the recoveries made, the weapons used, the

manner of offence committed, the scientific evidence and the expert

opinion. The said version should consistently match with the version of

every other witness. It can even be stated that it should be akin to the

test applied in the case of circumstantial evidence where there should not

be any missing link in the chain of circumstances to hold the accused

guilty of the offence alleged against him. Only if the version of such a

witness qualifies the above test as well as all other similar such tests to be

applied, it can be held that such a witness can be called as a ‘sterling

witness’ whose version can be accepted by the Court without any

corroboration and based on which the guilty can be punished. To be more

precise, the version of the said witness on the core spectrum of the crime

should remain intact while all other attendant materials, namely, oral,

documentary and material objects should match the said version in

material particulars in order to enable the Court trying the offence to rely

on the core version to sieve the other supporting materials for holding the

offender guilty of the charge alleged.”

25. In present case, the evidence of the victim has not been able to withstand

the result of the DNA test/profiling conducted upon the appellant and the child

of the victim. As such, the victim cannot be said to be a sterling witness. It

would thus not be proper to convict the appellant on the basis of the evidence

of the victim, which is not free from material contradictions. There is nothing in

the evidence of the other prosecution witnesses to corroborate the evidence of

the victim, inasmuch as, there was no eye witness to the appellant committing

the alleged offence of penetrative sexual assault upon the victim, other than

what the victim said.

26. When the only evidence against the appellant was the statement of the

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victim, which resulted in the birth of a child, the demolition of the said

statement by the DNA test leaves us with no other option but to hold that the

prosecution has not been able to prove the guilt of the appellant under the

charge framed under Section 6 of the POCSO Act read with Section 376 of the

IPC.

27. Accordingly, the appellant is acquitted from the charge framed against him.

Consequently, the judgment dated 26.09.2023 passed by the learned Special

Judge, POCSO at Golaghat in Special POCSO Case No.25/2022, arising out of

Golaghat P.S. Case No.69/2022, is hereby set aside.

28. The respondents shall release the appellant immediately from judicial

custody, if not wanted in any other case.

29. Send back the TCR.

30. In appreciation of the assistance provided by Mr. K. P. Pathak, learned

Amicus Curiae, his fee should be paid by the Assam State Legal Services

Authorities, as per norms.

JUDGE JUDGE

Comparing Assistant