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GAHC010216972024

2026:GAU-AS:5294

THE GAUHATI HIGH COURT

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

Case No. : Crl.A./362/2024

RITU BORDOLOI

S/O KAMESWAR BORDOLOI, R/O KHOLAGAON, SUB-DIST- MAYONG,

DIST- MORIGAON, ASSAM, PIN-782411

VERSUS

THE STATE OF ASSAM AND ANR

REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

2:PURAN BORDOLOI

S/O LT. ALAKSING BORDOLOI

R/O GAMARIGURI

HARIYABORI

MORIGAON

P.S.-MORIGAON

ASSAM-78210

Advocate for the Petitioner : MR. B KONWAR, MS D DUTTA

Advocate for the Respondent : PP, ASSAM, MR B PRASAD, AMICUS CURIAE (R-2)

BEFORE

HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

HONOURABLE MR. JUSTICE PRANJAL DAS

Advocate for the appellant : Shri B. Konwar, Ld Adv

Advocate for the State respondent : Ms. B. Bhuyan, Sr. Adv &

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Addl. PP :

Ms. R. Saloi, Ld Adv

Advocate for the respondent No. 2 : Shri B. Prasad, Amicus

Curiae

Date on which judgment is reserved : 25.03.2026

Date of pronouncement of judgment : 08.04.2026

Whether the pronouncement is of the

operative part of the judgment ? : N/A

Whether the full judgment has been :

pronounced?

JUDGMENT & ORDER (CAV)

(Pranjal Das, J)

Heard Shri B. Konwar, learned counsel for the appellant. Also heard

Ms. B. Bhuyan, learned Senior Advocate and Additional Public

Prosecutor, Assam assisted by Ms. R. Saloi, and Shri B. Prasad, learned

Amicus Curiae for the respondent no. 2.

2. The instant criminal appeal has been filed under section 415 (2) of

the BNSS, 2023 by the convict appellant, Ritu Bordoloi @ Rituparna

Bordoloi, against the Judgment and Order dated 22.08.2024 passed by

the learned Additional Sessions Judge cum Special Judge, POCSO,

Morigaon in POCSO Case No. 285/2023.

3. By the impugned judgment, the appellant has been convicted under

Section 366 IPC read with Section 6 of the POCSO Act. For his

conviction under Section 6 of the POCSO Act, he has been sentenced to

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undergo rigorous imprisonment for 20 years and imposed with a fine of

Rs. 20,000/- (Rupees twenty thousand) in default to undergo R.I. for

three months. For his conviction under Section 366 IPC, he has been

sentenced to undergo R.I. for five years and a fine of Rs. 10,000/-

(Rupees Ten Thousand) in default to undergo R.I. for one month. Both

the sentences have been directed to run concurrently. He was also given

the benefit of set off.

4. The prosecution case before the learned Trial Court was that an FIR

dated 25.07.2023 was lodged by the father of the victim girl before the

Morigaon police station with the allegations that on 24.07.2023, the

convict appellant took his 15 year old daughter Miss ‘X’ to Guwahati on

the pretext of selection for a volleyball game, but his daughter did not

return back. It is further alleged that the accused is a married person

and his wife had come and informed that her husband has taken away

the victim. On the basis of the FIR, Morigaon PS Case No. 286/ 2023

was registered under section 365 IPC. Subsequently, the girl came back

to her parental place. The investigation continued in the case and upon

completion of investigation, charge sheet was submitted against the

convict appellant under section 365/ 376 (3) IPC read with section 6 of

the POCSO Act, 2012. Subsequently, charges were also framed against

him under section 366/376(3) IPC read with Section 6 of the POCSO Act

- the charges were read over and explained to the convict appellant as

accused, to which he denied, whereupon the trial started.

5. During the trial, the prosecution examined 6 (six) witnesses including

the I.O. and M.O. The victim was also examined. It may be mentioned

herein that during the investigation, the statements of the victim were

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recorded by police as well as before the learned JMFC, Morigaon. The

defense adduced the evidence of 2 (two) witnesses. After completion of

the trial, the convict appellant, as accused, was convicted

and sentenced as narrated above. Aggrieved by the same, he has filed

the instant appeal.

6. The original TCR was called for and received.

7. The learned counsel for the appellant submits that in the

statement of the prosecutrix recorded under Section 164 CrPC, she has

referred to the alleged offence as only bad act. It is submitted that

there is no consistency between the different statements of the

prosecutrix, and that those are consistently inconsistent. It is submitted

that the prosecutrix has narrated three different versions or stories

regarding the incident. That, there are also contradictions in her

statement recorded by police vis-a-vis her statement under Section 164

CrPC. It is submitted on behalf of the appellant that the testimony of

the victim is not of sterling quality and should not be relied upon for

conviction. It is submitted that the age of minority of the victim has also

not been cogently proved by the prosecution during the trial. It is

submitted by the learned counsel for the appellant that as the birth

certificate was held to be not proved by this Court in this appeal, an

ossification test was directed vide order dated 15.12.2025 and the

Ossification report returned the finding that her present age is 18-20

years. That, therefore, the upper end of the bracket along with the

margin of error of 2 years should be taken as the age of the victim and

going by that, she would be a major on the date of the incident.

8. The learned Additional PP for the prosecution submits that the

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prosecution evidence during the trial has successfully proved that the

girl was a minor and that the offence was committed. It is submitted

that even going by the Ossification report, the girl still happens to be a

minor. It is submitted by the prosecution that in view of the statutory

presumptions under the POCSO Act, the accused had to rebut the

presumptions, and that he has not been able to do so.

9. Shri. Prasad, the learned Legal Aid Counsel for the informant,

submits that it was not disputed during the trial that the victim was a

student of 9

th

standard. It is submitted that there are minor

discrepancies in the birth certificate and that on the basis of the same,

it cannot be said that the certificate is fake. The learned counsel

submits that the prosecution case has been successfully proved during

the trial and that there is no infirmity in the impugned judgment and

order.

10. In support of his contentions, Mr. B. Konwar, the learned counsel

for the appellant cites the following decisions:-

(i) Jaya Mala Vs. Home Secretary, Govt. of J&K and Ors reported in

1982 Supreme(SC) 132;

(ii) Rajak Mohammad Vs. The State Of Himachal Pradesh reported in

2018 Supreme (SC) 1124;

(iii) Court on its own motion Vs. State of NCT of Delhi reported in

2024 Supreme (Online) (DEL)515;

(iv) Ajijul Islam Vs. State of Assam 2025 reported in Supreme(Gau)

1975;

(v) Shiva Chautal Vs. The State of Assam reported in 2023 Supreme

(Gau) 864);

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(vi) Alamelu vs State represented by Inspector of Police reported in

2011 Supreme(SC) 74;

(vii) Birka Shiva vs The State of Telangana reported in 2025

Supreme (SC) 1081;

(viii) Narendra Kumar Vs. State (NCT Delhi) reported in 2012

Supreme (SC) 406;

(ix) Kali Ram Vs State of H.P. reported in 1973 Supreme(SC) 299;

(x) Nirmal Premkumar & Anr Vs. State Rep. by Inspector of Police

reported in 2024 Supreme (SC) 218;

(xi) Mukarrab & Ors Vs. State of Uttar Pradesh reported in (2017) 2

SCC 210.

11. Similarly, in support of her contentions, Ms. B. Bhuyan, the

learned Additional P.P. submits the following decisions:-

(i) Manoj Vs. State of Haryana & Ors in Criminal Appeal No. 207 of

2022;

(ii) Vishnu alias Undrya Vs. State of Maharashtra (2006) 1 SCC 283.

Discussion and Decision

12. In any prosecution for sexual offenses, the testimony of the victim

is extremely important and crucial. It is well settled that a conviction in

such cases can be based on the sole testimony of the victim, provided

the same is found to be trustworthy. It is also well settled that a victim

in such cases is not considered to be equivalent to an accomplice and

rather, her position is similar to an injured eyewitness.

13. Before proceeding further, the testimony of the victim adduced

during the trial may be looked at and also her statement recorded

before the Magistrate during the investigation. During the investigation,

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the testimony of the victim girl was recorded before learned JMFC at

Morigaon on 01.08.2023. In her statement, she indicated her age as 14

years and stated that she plays volleyball and she has been learning

volleyball from the appellant for two months and that he is her

volleyball teacher.

14. She further stated that on 24.07.2023, the appellant took her

to Guwahati saying that there will be a volleyball selection match and

her family was informed before she was taken along. She stated that he

took her on a bike during the daytime and she wanted to return home

at night. She further stated that he kept her at his female friend's house

who had a husband and a little son. She further stated that she

was forced to sleep with Ritu Bordoloi, the appellant at night and

physical relationship was established with her. Though she had refused,

but he did not listen. She further stated that she was taken from

Guwahati to Lanka and they stayed there in a rented house for two

days. They also stayed at Raha for a couple of days and stayed for one

day at the house of the appellant's friend at Sonoka.

15. Upon learning that a case has been filed, the appellant himself

appeared at the police station and the victim girl was also taken to the

police station. During the trial, the victim girl adduced evidence as P.W.-

1, during which she stated that the case was lodged by her father and

at the time of the deposition, she was aged 15 years. She stated that

she knew the accused who was her volleyball coach, and that she was

studying at that time in Class 9. The incident took place in July 2023.

16. She stated that she started her volleyball practice under the

appellant since one month before the incident. She stated that the

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accused took her to Guwahati on his bike saying that there was a

volleyball game, and he also took permission of her parents before

taking her to Guwahati and accordingly, she went with the accused by

his bike to Guwahati. She stated that after she was taken to Guwahati,

she came to know that there was no game of volleyball. They had

started for Guwahati at 9 am and reached there around noon. She

further stated that on that day after darkness, the accused took her to

Lanka by train. She stated that at Guwahati, he took her to various

places by bike and they also had tea at restaurant.

17. At Lanka, the accused took her to a rented room and in the

rented room, one person was present and that they stayed in Lanka for

three days. PW-1 testified that the accused committed bad act with her

by inserting his penis inside her vagina on all the three days and

thereafter, the accused brought her to the police station at

Morigaon. She further testified that during their stay at Lanka, she and

the accused took their food in a nearby hotel and they used to go there

three times in a day.

18. She stated about her statement being recorded before

Magistrate which she proved as Exhibit P-1, and her signatures thereon

as Exhibit P-1(1) and P-1(2). She stated that she told about the incident

to her parents. In cross-examination, she clarified and admitted that the

accused had taken her with him with the permission of her parents. She

further stated that at Guwahati, she was taken to various places where

she met various persons during their stay at Lanka and also while going

by train, she met many persons but she did not disclose about the

incident to any such persons. She stated that she did not shout when

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being taken by the bike and by train. She denied the suggestion that

the accused did not take her to Lanka and did not commit bad act with

her.

19. She stated that the accused used to take other girls also for

playing. She denied that she had falsely stated that, at Lanka, the

accused took her to a rented room where one person was present and

that they stayed at Lanka for three days during which the accused

committed bad act with her by inserting his penis inside her vagina on

all the three days. She denied the suggestion that she was aged more

than 18 years.

20. In her testimony, the Investigating Officer, W.S.I. Tarali Bora,

who testified as PW-5 during the trial, stated that on 01.08.2023 at

around 11 am, the accused surrendered before the Morigaon police

station along with the victim and that subsequently, she forwarded the

victim to the hospital for medical examination.

21. In this regard, the doctor who examined the victim

testified during the trial as PW-6, being Dr. Jutika Baidya, PW-6 testified

that on 01.08.2023 while she was working as Medical and Health Officer

No.1 at Morigaon Civil Hospital, she examined the victim X in connection

with Morigaon PS case No. 286 of 2023. She testified that consent was

given by the father of the victim. Upon examination, she found her

genital organs, including vulva to be normal. However, her hymen was

found to be ruptured. She stated that her gait, cooperation and

behaviour was normal and good. Vaginal smear test did not reveal

any spermatozoa. Urine test was negative.

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22. Regarding opinion, PW-6 stated that on the basis of

physical, Radiological and Laboratory investigations done, she opined

that there was no evidence of recent sexual intercourse. No evidence of

external injury or violence mark was seen on her body or private parts

and that her age was more than 16 years and less than 18 years. PW-6

exhibited the Medical Report as Exhibit- P11 and her signature thereon

as Exhibit P11(1). In cross-examination, she stated that she conducted

the medical examination after following the proper procedure. She also

admitted that hymen, which is the membranous organ in the opening of

the vagina can get torn in any kind of stress, including physical activities

like cycling and playing volleyball. She stated that there was no bodily

injury found on the victim.

23. Thus, from the medical evidence, it emerges that the victim

was examined on 01.08.2023, soon after the incident. And, apart from

ruptured hymen, the medical evidence does not help in determining as

to whether there was rape or sexual assault upon the victim. As stated

in the testimony of PW-6, M.O. herself stated that hymen can be torn

due to physical activities such as sports etc. That with regard to the

ruptured hymen, merely because it was found to be ruptured at the

time of the medical examination, it cannot be said solely on the basis of

that, as to whether such rupture was due to any sexual

intercourse committed by the appellant.

24. The medical evidence does not indicate any injuries or

tenderness or lacerations, which can be indicative of any rape or sexual

assault upon the victim. However, the medical report and the medical

evidence of PW-6 states that the age of the victim is more than 16

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years and below 18 years. And going by that range, as per the medical

evidence, the victim was a minor, aged below 18 years at the time of

the incident.

25. Now, as the medical evidence is not very helpful or

conclusive in determining the question of rape or sexual assault upon

the victim, the testimony of the victim becomes even more important.

As already discussed, in trials pertaining to sexual offences, the

testimony of the victim plays a pivoted role because such offences by

their very nature would not be having eyewitnesses usually. Therefore,

in a situation where the medical evidence is not very helpful in

determining the cardinal question of whether the appellant committed

sexual assault or rape upon the victim, the testimony of the victim

acquires even more importance. And, it would be practically the

testimony of the victim which would be crucial or determinative of

answering the aforesaid cardinal question.

26. In support of its contentions for reliability of the statement of

the prosecutrix, the prosecution has referred to the decision of Vishnu

alias Undrya (supra) and referred to para 25 which may be

reproduced herein below:

”25. The statement of the prosecutrix, in our view, is quite natural,

inspires confidence and merits acceptance. In the traditional non-permissive

bounds of society of India, no girl or woman of self-respect and dignity

would depose falsely, implicating somebody of ravishing her chastity by

sacrificing and jeopardising her future prospect of getting married with a

suitable match. Not only would she be sacrificing her future prospect of

getting married and having family life, but also would invite the wrath of

being ostracised and cast out from the society she belongs to and also from

her family circle. From the statement of the prosecutrix, it is revealed that

the accused induced her to a hotel by creating an impression that his wife

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was admitted in the hospital and that he would see her first and then drop

the prosecutrix at her residence whereas, in fact, she was not admitted in

the hospital. On the pretext of going to Nanawati Hospital, he took her to a

hotel, took her inside a room, cløsed the door of the room, threatened to

finish her if she shouted and then forcibly ravished her sexually. In our view,

a clear case of rape, as defined under Section 375 clause thirdly IPC has

been established against the accused. It is g now a well-settled principle of

law that conviction can be sustained on the sole testimony of the

prosecutrix, if it inspires confidence.”

27. It is well settled as mentioned earlier that, in a prosecution

for sexual offences, conviction can be based on the sole testimony of

the victim. However, to do so, such testimony has to be trustworthy.

Generally speaking also, in a criminal trial, conviction can be based upon

the testimony of solitary witness, provided it is trustworthy and inspires

the confidence of the Court. Section 134 of the Evidence Act does not

require any specific number of witnesses to prove a fact. It is a well-

known principle of evidence jurisprudence that evidence is weighed

and not counted, and it is the quality of the evidence which matters

more than the quantity. However, if a conviction is sought to be based

on the sole testimony of the prosecutrix or primarily on the testimony of

the prosecutrix, such evidence of the victim or prosecutrix has to be

wholly reliable and free from doubts or infirmities. In a way, in such a

situation, the victim, as a witness has to meet the standard of a sterling

witness.

28. A sterling witness has been held to be one whose testimony is

consistent, does not suffer from infirmities, cogent and has a strong ring

of truth about it, and does not suffer from any contradictions. Such a

testimony should be convincing and be one which fully or substantially

satisfies the judicial conscience of the Court to fully rely upon it. In this

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regard, reference may be made to the decision of Rai Sandeep Vs.

State of NCT Delhi reported in (2012) 8 SCC 21 The relevant para

15 is gainfully reproduced herein below :-

“15. 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 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.”

29. Coming back to the instant case herein, apart from the

prosecutrix, the other witnesses are not eyewitnesses. Nevertheless, the

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father of the victim who was the informant of the case, adduced

evidence as PW-2, during which he testified that he knew the

accused as a volleyball coach and that the victim is his daughter who is

aged 16 years and studying in Class 9. He stated that the accused had

come to his house and told him as to whether he will send his daughter

with him for volleyball coaching to Guwahati and that there will be a

selection for girls team at the stadium in Guwahati. He stated that

before the said proposal, the accused had taken volleyball coaching of

his daughter for about three months along with other girls.

30. He stated that upon being asked by him about coaching at

Guwahati, the accused answered in the affirmative and told that other

girls will also go with his daughter in a rented vehicle. Accordingly, the

PW-2 allowed his daughter to go with him and on the day of the

incident, the appellant came to their house in the morning and took his

daughter by a Pulsar bike and they were supposed to return by the

evening, but they did not return. He further testified that on the next

day also when they did not return, he came to the Morigaon police

station and lodged the ejahar, and after three days, police recovered his

daughter at Lanka and upon being informed by police, he went to

Morigaon PS and found his daughter there. He stated that on being

asked, his daughter told him that she stayed with the appellant at

Guwahati for one day and thereafter went to Lanka by train and

stayed there for three days and that his daughter told him that the

accused committed rape upon her during their stay together at Lanka

for three days in a rented room.

31. In cross-examination, he stated that the accused had taken

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his daughter alone to Guwahati by falsely telling him that he will

take other girls also. PW-2 denied that his daughter was aged more

than 18 years at the time of the incident. He denied that the accused

did not induce his daughter to go with him to Guwahati and denied that

the accused did not commit any bad act with her at Lanka.

32. The mother of the prosecutrix adduced evidence as PW-3 and

she stated that the victim is her daughter and she is aged 15 years. She

also stated about the accused being a volleyball coach of her

daughter and that on the day of the incident, her daughter went with

the accused to play at Guwahati, but as there was a delay of two days

in returning home of her daughter, the case was lodged. She stated that

after her daughter came home, she told her that she stayed in the

house of relative of the accused at Guwahati with one girl there and

that she did not tell anything else. In cross-examination, she stated that

on the day of the incident, her daughter went by asking her. She also

stated in cross-examination that after recovery, her daughter told her

that she was kept in the house of relative of the accused at Guwahati.

She stated that her daughter stayed in the house at Guwahati out of her

will and stayed there as she thought that her brother will scold her.

33. It is interesting to note that in the testimony of the mother of

the prosecutrix as PW-3, no incident of sexual assault or rape

emerges. By the standards of normal behavior, especially in our society,

usually a girl would be more comfortable to tell about such matters to

her mother rather than her father. Herein though her father has testified

about being told about the sexual act of the accused on his daughter;

her mother has not stated anything on those lines. Moreover, the

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testimony of PW-3, mother of the prosecutrix, in her cross-

examination dilutes the testimony of her husband PW-2 inasmuch as

she stated that the victim girl stayed in Guwahati in the house out of

her own will.

34. PW-4 is the brother of the prosecutrix and he has stated

about the victim girl being aged 14 years at the time of the incident. He

has also stated on similar lines about his sister taking volleyball

coaching from the appellant and going to Guwahati, saying that there

was a volleyball trial. As there was delay in her returning, his father

lodged the case. On the day of the incident, he is stated to have

telephoned her and she told that there was no play and then he asked

her to come back. However, she did not return home and as there was a

delay in such returning, the case was lodged. PW-4 stated after

returning, his sister told him that she stayed at Sonoka and did not tell

anything else. He also stated in cross-examination that he scolded his

sister over the phone for not returning. Therefore, we find that from the

testimony of PW-4 also, narration regarding the incident of rape or

sexual assault does not emerge.

35. Now going back to the testimony of PW-5, the IO, we find

that she has stated about the steps of investigation and upon

completion of investigation, submitting charge sheet against the

accused under section 365/376 (3) IPC, read with Section 6 of the

POCSO Act. She proved as Exhibit P-3, the extract copy of G.D.E. No.

787, dated 25.07.2023. She also proved as Exhibit-P4, the ejahar and as

Exhibit-P4(1), the signature of then O.C. Jyoti Prasad Handique and her

signature as Exhibit-P4(2). She proved the printed form of the FIR as

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Exhibit-P5, and signature of Inspector Jyoti Prasad Handique as Exhibit-

P5(1). She proved the sketch map as Exhibit-P6 and her signature

thereon as Exhibit-P6(1).

36. She proved the arrest memo of the accused as Exhibit-

P9 and her signature thereon as Exhibit-P9(1). She proved the charge

sheet as Exhibit-P10 and her signature thereon as Exhibit- P10(1). In

cross-examination, she stated about following proper procedure of

investigation. She stated that the victim told her that she was in

Guwahati with the accused. The statement under Section 161 Cr.PC was

recorded by her twice, once before her statement under Section 164

CrPC was recorded and once more after recording of the

statement before the Magistrate. Upon being asked as to where they

went, the girl did not cooperate as stated by PW-5, the I.O.

37. On behalf of the defense, two witnesses adduced

evidence. DW-1 adduced evidence with regard to birth certificate of the

victim. The learned Trial court found the birth certificate to be

admissible and relied upon the same to arrive at the finding that the

victim was a minor at the time of the incident. However, this Court by

order dated 15.12.2025 found a fatal infirmity in the birth certificate in

as much as the year of registration was found to be 2011 and the date

of issue was indicated as of 2009. Therefore, an Ossification Test was

directed and after the said test was conducted, the Ossification report

returned a finding that at the time of examination of the girl, she was

above 18 years and less than 20 years.

38. DW-2 is one Niroda Saikia who testified that she knew the

appellant through her son. She testified that one day in the evening the

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appellant came to their house at Sonoka under the jurisdiction of

Mayong police station, saying that he had come from Guwahati and

stayed in their house along with one girl. DW-2 stated that on being

asked as to why the girl had come with the accused, the girl did not

reply anything and only gave a smile. It is stated that the said incident

took place on 24

th

July. It is stated that they stayed in their house for

one night and the girl slept with her daughter. In the morning they went

away. In cross-examination, DW-2 has expressed ignorance about other

things regarding the girl and the accused.

39. Upon carefully perusing the prosecution evidence, especially

the testimony of the girl, including her statement recorded before

Magistrate, the following points may be noticed –

(i) In her statement before learned JMFC, Morigaon during

investigation, she has stated about the appellant

establishing physical relationship with her, despite her refusal

and that was at Guwahati. Though she stated about staying

in a rented place at Lanka for two days, she has not

mentioned about any sexual assault or rape by the appellant

at Lanka in such statement before the Magistrate.

(ii) In her testimony during the trial as PW-1, she has not

stated about physical relationship at Guwahati and rather

stated that on the same day in the night, they moved from

Guwahati to Lanka. She stated that when they stayed for

three days in the rented place at Lanka, on each day, the

appellant committed bad act with her by inserting his penis

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inside her vagina. However, in the same breath, she states

that during their stay in Lanka both of them took food in

nearby hotel and used to go there three times in a day.

40. This part of the testimony is surprising and dilutes her

testimony about sexual assault or rape in the earlier part of her

deposition. Further, though her father as PW-2 has stated about being

reported by her about rape or sexual assault, but her mother

importantly has not stated anything on those lines. Her brother also

testified about not being reported about the incident by her sister.

41. On the testimony of PW-6, the M.O., we find that regarding

the case history noted from the victim, it was stated about love affair

with the appellant few months back and that she ran away with him on

24.07.2023 and stayed together and they had physical relationship there

and that he is a married person. There was no history of assault. This

aspect of the testimony of PW-6 also dilutes that part of the testimony

of PW-1, the victim, about being subjected to rape or sexual assault.

DW-2 in whose house at Sonoka under the jurisdiction of Mayong police

station, the appellant and the victim are stated to have stayed for a

night, has testified about the victim replying with just a smile when DW-

2 asked her as to why she had come with the appellant. From her cross-

examination also it emerges that when the accused took her to various

places at Guwahati and during their stay at Lanka and also while going

by train - though she met many persons, but she did not disclose to any

of the persons about the incident. In any case it has emerged from the

testimony of PW-2, the father of the victim and informant that the

accused had taken the girl with the permission of her father.

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42. In his examination under Section 313 CrPC, to the general

question, being Q.No. 83 with regard to the incident - the appellant has

stated that when they were returning from Guwahati, she refused to go

and told that her brother would assault her if she goes home and that

being compelled, he took her to Sonoka. He stated that she had refused

to come home and but she maintained contact with her brother over

phone. He further stated that one day on the pretext of going to

shopping mall, he brought her to the police station.

43. Upon perusing the entire evidence on record, including the

testimony of the victim, we find that the prosecution evidence suffers

from infirmities as enumerated above. More importantly and especially,

the testimony of the victim suffers from sme inconsistencies and

infirmities. The most important infirmity that we find in the testimony is

that when they were at Lanka though the appellant is stated to have

committed rape upon her on all the three days - every day, they went

out to the restaurant to have food and they did so three times a day.

This is contrary to normal human conduct and also renders the

implicating part of her testimony not fully trustworthy.

44. Thus, on the basis of the evidence on record, we come to the

considered opinion that the testimony of the victim prosecutrix in the

instant case fails to pass the test of a sterling witness. Despite some

other infirmities also in the prosecution case as discussed above - since

the prosecution case primarily relies on the oral testimony of the victim,

due to the incomplete nature of the medical evidence - therefore, due

to the infirmities in such testimony of the prosecutrix and it not being of

a sterling quality, it would not be safe to base a conviction thereupon

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solely and primarily. With regard to the offence of kidnapping the girl, it

has emerged from the testimony of the father of the victim that the

appellant took permission in her home before taking her and therefore

the element of kidnapping would not come.

45. The learned counsel for the appellant has contended in the

context of the finding of the Ossification report that the margin of error

of two years should be applied to the age bracket of 18 to 20 years

indicated as the present age of the victim girl, and further contended

that since it is the question of the age of the girl therefore, such

margin of error should be applied to the upper end of the age bracket

i.e., 20 years. In support of the said contention, the learned counsel has

referred to the decision of Jaya Mala (supra), Rajak Mohammad

(supra), Mukarrab (supra). However, we do not deem it necessary

to discuss the said decisions in detail as the age of the victim girl has

become secondary due to the fatal infirmities found in the testimony of

the victim girl.

46. In support of his contentions that the testimony of the victim

girl should not be relied upon, the learned counsel for the appellant has

also referred to the decision of Nirmal Premkumar (supra) where the

Hon’ble Apex Court, after referring to the decision in Rai

Sandeep (supra) has discussed the attributes of the sterling witness.

The relevant para 15 of Nirmal Premkumar (supra) may be

reproduced herein below:

“15. What flows from the aforesaid decisions is that in cases where

witnesses are neither wholly reliable nor wholly unreliable, the Court should

strive to find out the true genesis of the incident. The Court can rely on the

victim as a "sterling witness" without further corroboration, but the quality

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and credibility must be exceptionally high. The statement of the prosecutrix

ought to be consistent from the beginning to the end (minor inconsistences

excepted), from the initial statement to the oral testimony, without creating

any doubt qua the prosecution's case. While a victim's testimony is usually

enough for sexual offence cases, an unreliable or insufficient account from

the prosecutrix, marked by identified flaws and gaps, could make it difficult

for a conviction to be recorded.”

47. The prosecution has referred to the decision of Manoj (supra) in

support of its contention that the result of Ossification Test or such

medical examination should not be accepted mechanically and that the

finding in the instant case still does not prove that the victim is a major.

48. However, as already mentioned above, this aspect need not be

discussed in detail as the issue of age has been found to have become

secondary in our discussion due to the fatal infirmities in the testimony

of the victim on which the conviction by the learned Trial court had

largely proceeded on.

49. Further, since the aspect of sexual intercourse or rape has not

been convincingly proved due to the infirmities in the testimony of the

prosecutrix - therefore, the aspect of illicit intercourse as a necessary

ingredient of Section 366 IPC would also not stand. Thus, we come to

the considered finding that the conviction of the appellant cannot be

sustained under the penal provisions of IPC and POCSO Act under which

he has been convicted nor can he be convicted for any other cognate

minor offences.

50. Consequently, this criminal appeal succeeds and the

impugned Judgment and Order dated 22.08.2024 passed by the

learned Additional Sessions Judge cum Special Judge, POCSO, Morigaon

in POCSO Case No. 285/2023 is set aside.

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51. The appellant shall be set at liberty forthwith, if not wanted in

any other case.

52. The criminal appeal stands disposed of. Send back the TCR.

JUDGE JUDGE

Comparing Assistant