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GAHC010220002022

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IN THE GAUHATI HIGH COURT

REPORTABLE

(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)

PRINCIPAL SEAT

Criminal Appeal 286/2022

Sabibar Rahman

S/o Late Harab Ali,

R/o New Bongaigaon,

Samsanpur, Islampur,

P.S. and Dist.- Bongaigaon,

Assam.

----- Appellant

VS.

1.The State of Assam

2. Sahera Khatun

W/o Abdul Hussain

VILL.-Santoshpur

P.S.- Chapar

P.O.- Chapar

Dist.- Dhubri

Assam

-----Respondents

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B E F O R E

HON’BLE MR. JUSTICE SANJAY KUMAR MEDHI

HON’BLE MR. JUSTICE PRANJAL DAS

Advocated for appellant:

Mr. A. Rahman

Advocate for Respondents:

Ms. A. Begum, learned Addl. P.P

Ms. S. Medhi, Legal Aid Counsel

Date on which judgment is reserved : 26.03.2026

Date of pronouncement of judgment : 08.04.2026

Whether the pronouncement is of

the operative part of the judgment? : No

Whether the full judgment has been Pronounced? : Yes

JUDGMENT & ORDER (CAV)

Pranjal Das, J

1. Heard Mr. A. Rahman, learned counsel for the appellant. Also

heard Ms. A. Begum, learned Additional Public Prosecutor for

respondent No.1 and Ms. S. Medhi, learned Legal Aid counsel

appearing for respondent No.2.

2. The instant criminal appeal has been preferred by the convict

appellant, namely Sabibar Rahman, against the judgment and order

dated 26-09-2022, passed by the learned Special Judge, Bongaigaon,

in Sessions Special POCSO Case No. 1(BGN) of 2022. By the impugned

judgment and order, the convict appellant as accused, has been

convicted under Section 376 (AB) IPC r/w Section 6 of the POCSO Act

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2012. For his such conviction, he has been sentenced to undergo

rigorous imprisonment for 20 years and pay a fine of Rs.50,000/-, in

default, simple imprisonment for one year. He was given the benefit of

set-off.

3. The prosecution case, in brief before the learned Trial Court

was that on 22.09.2021, the maternal aunt of the victim girl lodged an

Ejahar at Bongaigaon Police Station with the allegation that on 16-09-

2021, her niece, aged about 12 years, went to her maternal

grandparents' house at Islampur, Samshanpara, New Bongaigaon, in

the district of Bongaigaon. That, around 11 pm on 20-09-2021, while

she was sleeping in her grandparents' house, abovementioned, the

accused No.1namely Sabir Ali, committed rape upon her against her

will. When the girl raised alarm, the accused No.2 named in the FIR,

Juran Ali, who was the own maternal grandfather of the victim, gagged

her. It is alleged that later, both the accused persons threatened the

girl not to disclose the matter to anyone. She further alleged that

around 10 am on 21-09-2021, the girl informed the incident over

phone to her and thereafter, she lodged the Ejahar.

4. On the basis of the complaint, Bongaigaon P.S. Case No. 783

of 2021 was registered under section 376 (AB) IPC r/w section 6 of the

POCSO Act 2012. The case was investigated and upon completion of

investigation, a charge-sheet was laid against both the FIR named

accused persons, including the present appellant Sabibar Rahman

under section 376 (AB) IPC r/w Section 6 of the POCSO Act. They were

charge-sheeted vide C.S. No. 427 of 2021 dated 30-11-2021.

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5. Subsequently, vide order dated 19.04.2022, the learned

Special Judge framed charges against the present convict appellant

under section 376 AB IPC r/w section 6 of the POCSO Act 2012. With

regard to the co-accused Juran Ali, the own maternal grandfather of

the victim, the learned Special Judge had framed charge against him

under section 17 of the POCSO Act.

6. The denial of the charges by the accused persons led to

commencement of the trial. During the trial, the prosecution adduced

the evidence of 7(seven) witnesses, including the victim, informant,

MO and IO. After completion of prosecution evidence, the accused was

examined under section 313 CrPC.

7. The defense did not lead any evidence. After completion of

trial, the learned Special Court was pleased to convict the present

convict appellant as narrated above. However, the co-accused Juran Ali

was acquitted by the learned trial court.

8. Aggrieved by the conviction and sentence, the present

appellant Sabibur Rahman has approached this court with this appeal.

9. Mr. Rahman, the learned counsel for the appellant submits that

the medical opinion has not supported the alleged offense against the

appellant. He further submitted that as per the certificate, the date of

birth of the victim is 16-03-2010. But as per the medical opinion, she

was 15-16 years of age at the time of examination. It is submitted by

the learned counsel that the evidence has not proved the alleged

offense against the appellant and therefore, the impugned judgment

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and order may be set aside.

10. On the other hand, Ms. A. Begum, the learned Additional

Public Prosecutor submits that the testimony of the prosecution

witnesses, including the victim, is believable. It is submitted that there

is no contention regarding enmity in the statement of the appellant

recorded under section 313 Cr.P.C. It is submitted by the learned

Additional Public Prosecutor that the impugned judgment does not

suffer from any infirmity and therefore, the appeal is devoid of merits.

11. Ms. S. Medhi, the learned Legal Aid counsel appearing for the

informant submits that the factum of torn hymen has emerged from

the testimony of the MO which clearly proves that the victim was

subjected to rape. The learned Legal Aid counsel supporting the

contention of the prosecution submits that the testimony of the victim

is cogent and trustworthy and that the prosecution case was

successfully proved before the learned Trial Court and has rightly

convicted and sentenced the appellant for this heinous crime.

12. We have perused the appeal memo, the impugned judgment

and order, the evidence on record and considered the submissions of

the learned counsel.

13. The victim has adduced evidence as PW-1. In her testimony,

she stated that the informant is her aunt and she knew both the

accused persons. She testified that about seven months prior to her

deposition, she was sleeping in the house of her maternal grandfather,

Juran Ali and her three-year-old sister was also sleeping with her and

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that on that day, her grandmother was not at home. She stated that

only three of them were in that house on that day. She further testified

that while she was sleeping, the accused Sabibar Rahman came to

their room and uncovered her clothes and had sexual intercourse with

her. She testified that her grandfather Juran Ali pressed her mouth

while she tried to utter and threatened her not to disclose the matter

to anyone by showing a knife. She stated that on the next morning

when her maternal grandfather went out, she made a phone call to her

aunty. She stated that on the day of the occurrence, her mother was in

hospital for which she reported the matter to her brother's sister and

she lodged the FIR. She stated that her statement was recorded in the

Court under section 164 Cr.P.C, which she exhibited during the trial as

Exhibit P-1 and her signatures thereon as Exhibits P-11 and P-12. She

testified that at the time of the incident, she was 12 years old and

studying in Class VI.

In cross-examination, she stated that the house of Sabibar Rahman is

near to the house of her Nana maternal grandfather (Juran Ali) and

prior to this incident, the appellant had not committed any wrong

against her and that he used to come to her Nana's house. She denied

the suggestion that the appellant had not committed sexual

intercourse with her. She also denied that she did not state to the

police about the appellant committing forceful sexual intercourse upon

her. She also denied the suggestion that she did not recognize the

appellant as the night was dark. She reiterated that the appellant had

committed bad act upon her. She also denied that as the room was

dark, she could not say who entered the room. She denied that she

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stated before the Magistrate upon being tutored. She reiterated by

denying the suggestion that the appellant had not entered into her

room. She denied that the FIR was false or that she had deposed

falsely.

14. In cross-examination on behalf of the co-accused Juran Ali,

she stated that her grandfather's house consisted of two rooms and on

that day in one room, her grandfather slept and in the other room, she

slept with her sister. As stated by the victim, her statement was

recorded before the Magistrate during the investigation. Her statement

which has been exhibited by her as Exhibit-P1 was recorded on 23-09-

2021 before learned SDJM(S), Bongaigaon. She had stated that about

five days prior to the date of recording her statement, she went to her

maternal grandfather's house with her younger sister. She stated that

on 29-09-2021 at about 11 pm while they were sleeping, Sabir Ali a

neighbour of grandfather had come and her grandfather had opened

the door. Sabir came and grabbed her and when she tried to raise

alarm, her grandfather gagged her. She further stated that Sabir

committed sexual intercourse with her against her will and her

grandfather threatened her by showing a knife, saying that if she

raises alarm, he would kill her. She further stated that on the next day

when her grandfather entered into bathroom, she made a phone call

to her aunt and informed about the incident whereupon she came and

recovered her. In her statement, the victim girl has indicated her age

as 13 years whereas in her testimony before the court during the trial

recorded on 05-05-2022, she indicated her age as 13 years.

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15. We take up the evidence of the informant who was the

maternal aunt of the victim. She testified as PW-2 that she knew both

the accused persons and the victim was her cousin. She stated that at

the time of the incident, the victim was aged 12 years old and studying

in Class VII. She stated that about 8 months prior to her deposition,

she was in hospital and the victim informed her over phone that on the

previous night at about 11 pm while she was sleeping in one room in

the house of her grandfather, the appellant Sabibar came and entered

into her room and grabbed her and had forceful sexual intercourse

with her and that the other accused Juran Ali covered her face with his

hands. She also informed that Sabibar showed her a knife not to

disclose the incident to anyone. On the next day when her grandfather

went to latrine, keeping aside the mobile, she informed PW-2 through

that mobile. She stated that on the same day she came to her father's

house and next day she lodged the Ejahar. She proved the birth

certificate of the victim as Material Exhibit1.

In cross-examination, she stated that the victim used to come to her

grandfather's house and stay for 2-3 days and that before the incident

she never heard any illegal activities towards the victim by her father

Juran Ali. She admitted that she had not seen the occurrence. She

denied the suggestion that the birth certificate of the victim was not

genuine. She denied that she did not state before the police that the

accused did not have forceful sexual intercourse with the victim and

threatened her by showing knife. She denied that the appellant did not

come to the house of the other accused Juran Ali and that Juran Ali did

not cover her mouth of the victim by his hands.

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16. One Manowar Hussain testified as PW-3 in which he stated

that he knew the informant, the victim and also both the accused

persons. He stated that about 8 months prior to his deposition he

heard from the public and the victim that accused Sabibar Rahman and

Juran Ali committed rape on the victim. He stated that on the next day

of the incident, he saw the victim on the road and she was going to

her house and she was weeping and upon being asked she told that

she was raped by Sabibar Rahman and she also told that she will

disclose the whole matter later on. PW-3 stated that victim was aged

about 12 years at the time of the incident. In cross-examination, he

admitted that he did not state before police about being reported

about the incident by the victim on the road as stated above. He

denied the suggestion that the appellant did not rape the victim.

17. Abdul Gofur testified as PW-4 in which he stated that he knew

the informant and both the accused persons. He stated that about 8

months prior to his deposition one day when he came from hospital,

police came to the place of occurrence and upon being asked, the

informant stated that accused appellant raped the informant's niece.

He stated that he heard the incident from village people and that at

the time of the occurrence victim was 12-13 years.

In cross- examination he admitted that he did not state to the police

about the age of the victim. He also could not say the name of the

member of the public from whom he heard about the incident.

18. The Medical Officer Dr. Gitika Pathak who examined the victim

after the incident adduced evidence as PW6. She stated that on 22-09-

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2021 she was working as Sub-Divisional Medical and Health Officer,

Bangaigaon Civil Hospital. On that day around 4 AM, she examined the

victim girl aged about 12 years escorted by WPG (Verify if WHG)

Gunamoni Roy. She stated that she examined the victim in connection

with Bongaigaon P.S. Case No. 783 of 21 under the POCSO Act. Upon

examination, she did not find any external injury on the body of the

victim or her private parts. She stated that the vagina admitted of one

finger. She found the hymen to be torn and from the X-Ray reports,

she stated her age to be 15-16 years. She also did not find any vaginal

spermatozoa. PW-6 opined that no opinion could be given whether she

was raped or not. She proved the medical report as Exhibit- P5 and her

signature thereon as Exhibit-P5(1).

In cross-examination she stated that there was no swelling or redness

on the vagina of the victim.

19. One John K. Deka, testified as PW-7 and stated that at the

time of his deposition, he was working as Health Assistant at Salkocha

SHC and that he was authorized to depose by In-Charge Medical and

Health Officer Lutfar Pradhani. He exhibited the authorization letter as

Exhibit P5 and as Exhibit- P5(1), the signature of Lutfar Pradhani. He

stated that he had brought the Birth Register containing entries from

2003 till 2010 and he proved the Register as Exhibit- P6.He proved the

relevant page as Exhibit- P6-1 and the relevant entry as P6(2) which is

Registration No.481/10. He stated that as per the Birth Register, the

date of birth of the victim was 16.03.2010. He stated that the issue

date of the birth certificate was 17.03.2013. He proved the Birth

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Certificate as Material Exhibit-1.

In cross-examination, he stated that he cannot say who applied for the

birth certificate and he has not brought the application and documents

given at the time of procuring the certificate. He denied the suggestion

that the birth certificate was not genuine. He denied that the birth

certificate and the registration in the register are not for the same girl.

20. S.I. Dalim Das was the Investigating Officer of the case and he

testified during the trial as PW-5. He stated that on 22-09-2021, he

was posted as attached officer at Bongaigaon police station.

Thereupon, Sahera Khatun lodged the FIR which was registered into

Bongaigaon police station Case No. 783/2021 under section 376 (AB)

IPC r/w Section 6 of the POCSO Act and he was endorsed to

investigate the same. He proved the FIR as Exhibit-P2 and the

signature of the then O/C, Bongaigaon Police namely, Upen Kalita as

Exhibit P 2(1). He stated about examining the victim, recording her

statement and proceeding to the place of occurrence. He proved the

sketch map as Exhibit- P3 and his signature thereon as Exhibit-P3(1).

He arrested the accused person subsequently and later collected the

medical report of the victim. He submitted charge-sheet upon

completion of investigation which he proved as Exhibit-P4 and his

signature as Exhibit- P4(1).

In cross-examination, he stated that he had not seized any wearing

apparel of the victim or any knife. He confirmed that the victim had not

stated before him that – she and her 3-year-old sister were sleeping in

the same room that the accused threatened her not to disclose the

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matter to anyone; the accused Sabibar Rahman forcefully committed

sexual intercourse with her, uncovering her cloths. He also confirmed

that informant Sahera Khatun did not state before him that while

committing sexual intercourse, accused showed knife. He denied that

he had falsely charge-sheeted the accused.

21. From the medical evidence, what we find is that on one hand

the hymen was found to be torn, but the MO opined that it cannot be

said as to whether the victim was raped or not. However, no

tenderness or swelling or lacerations were found on her private parts.

22. It is well settled that mere absences of injuries on private parts

do not necessarily disprove rape. Mere presence of a hymen does not

necessarily disprove penetration. It is also equally true that a mere

absence of hymen would not also necessarily prove rape. The said

body organ of a girl being in the nature of a membrane can get

removed or ruptured in other ways as well. Medically, there are also

cases where a woman is born with a very elastic membrane or even

the membrane may be absent.

23. Though it is well settled that in a prosecution for sexual

offence, the sole testimony of the prosecutrix can be relied upon to

arrive at a finding, but the medical evidence can be very helpful in

lending corroboration to the same and satisfying the conscience of the

court. However, even if that is not the case, the sole testimony of the

prosecutrix can still be relied upon to arrive at a finding.

24. In the instant case, the medical evidence does not throw

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proper light on whether she was subjected to rape and it also does not

rule out rape. In other words, the medical opinion is ambiguous.

25. However, as already mentioned, considering the tender age of

the girl being about 12-13 years, her hymen was found to be torn. The

testimony of the victim is consistent throughout her evidence during

the trial and also in her statement before Magistrate recorded during

investigation. In both the statements, she has described the incident

on similar lines and stated that she was in the house of her maternal

grandfather and sleeping in the other room with her minor sister, aged

only 3(three) years, whereupon the appellant intruded into her room

and committed a sexual offence upon her by way of sexual intercourse.

She has also alleged about being threatened by the other co-accused,

Juran Ali, who happened to be her own maternal grandfather. The

victim girl, PW-1, has stated on similar lines in her statement before

learned Judicial Magistrate also.

26. Thus, the testimony of the victim is consistent through both

the statements. Further, the testimony of the victim remains unshaken

in cross-examination in as much as, she has denied the suggestions

and repelled suggestions to the contrary. The testimony of PW-3 is also

vital as much as, she saw her on the road on the next day of the

incident. At that time, the victim was weeping and going to her room

and upon being asked, she stated about the incident committed by the

appellant. This aspect of the testimony of PW-3 lends vital

corroboration to the testimony of the victim. And the part of his

testimony regarding her behaviour at that time is also an important

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factor lending support to the prosecution case.

27. In her statements, the victim has indicated her age to be 13

years and medically, the MO has stated her age to be 15-16 years. But

during the trial, the birth certificate of the victim was exhibited by PW-

7 and as per as the birth certificate, her date of birth was

16.03.2010.We find the testimony of PW-7 to be cogent and there is

no reason not to disbelieve the birth certificate and the date of birth.

Going by the birth certificate, the victim was aged about 11 ½ years at

the time of the incident.

28. In any case, it is settled law that when there is an issue with

regard to the age of the victim in a POCSO case, the relevant

provisions of Section 94 of the Juvenile Justice Act, 2015 can be

resorted to, which lays down the criteria to be used for determining

the age of a child in conflict with law. And in terms of Section 94, a

birth certificate has higher precedence than the age revealed by any

medical test. Therefore, the learned trial court rightly relied upon the

birth certificate in taking the age of the victim and holding her to be a

minor.

29. We are thus of the opinion and finding that the victim was a

minor at the time of the incident, aged about 12 years, a little less

than 12 years. No aspect of false implication against the present

convict appellant has emerged from the evidence. The defence has not

adduced any evidence from its side. Though, the appellant in his

examination under Section 313 Cr.P.C has stated about being falsely

implicated, but we find it to be a faint attempt to project an alternative

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theory, especially, when no evidence whatsoever was adduced by the

defence, when it could have been done.

30. One important aspect that has emerged from the examination

of the accused persons under Section 313 Cr.P.C itself is that the

appellant and the co-accused (who was acquitted and who was the

maternal grandfather of the petitioner) were under the influence of

liquor at the relevant time. From the statements also, the presence of

the convict appellant in the house of the victim's maternal grandfather

has emerged.

31. Further, it has also emerged from the testimony of PW-1 that

the appellant used to visit the house of her maternal grandfather

where she also used to go earlier. And therefore, there is no reason to

disbelieve her testimony about recognizing him at the time of the

incident, though it was night and dark. Despite the ambiguous nature

of the medical evidence (it does not however rule out rape or sexual

assault) – upon perusing the entire evidence on record, especially, the

cogent testimony of the victim corroborated by the testimony of PW-3

and the informant, we find no reason to disbelieve the testimony of the

prosecutorix.

32. We find the testimony of the prosecutrix to be cogent,

consistent and trustworthy. And therefore, in terms of the settled law,

the same can be relied upon to arrive at the finding that she was

speaking the truth and on the day of the incident, the convict appellant

committed forceful sexual intercourse upon her. Therefore, the

conviction is upheld. We also do not find reasons to modify the

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sentence in such a heinous crime.

33. Accordingly, the impugned judgment and order dated

26.09.2022, passed by the learned Special Judge, Bongaigaon, in

Sessions Special (POCSO) Case No. 1(BGN) of 2022, is hereby upheld

and confirmed.

34. Resultantly, the instant criminal appeal stands dismissed.

35. Send the original TCR.

JUDGE JUDGE

S.Saha

Comparing Assistant