In a criminal trial, where the prosecution fails to establish the core facts due to the non-seizure of primary evidence, lack of corroboration, and unexplained delays that render the prosecution story improbable, the accused is entitled to the benefit of doubt and subsequent acquittal.

ORDER

03/11/2025

Heard Mr. G Khandelia, learned Amicus Curiae, appearing for the appellant and Ms. A Begum, learned Additional Public Prosecutor, Assam for the State respondent.

2. The present criminal appeal has been instituted assailing the judgment dated 12.09.2013 passed by the learned Additional Sessions Judge No. IV, Kamrup, Guwahati, in Sessions Case No. 541(K)/2012, convicting the appellant, herein, under Section 354 IPC and sentencing him to undergo Rigorous Imprisonment for 2 (two) years and also to pay a fine of Rs.5,000/-, in default, to undergo further Rigorous Imprisonment for 2 (two) months.

3. The prosecution case in brief is that one Babul Ali, on 17.07.2011, had lodged an FIR before the Officer-in-Charge, Jalukbari Police Station, inter-alia, alleging, therein, that on 17.07.2011, at about 4:00 PM, the appellant, herein, had induced his 6 (six) years old daughter to go to his rented room and thereafter, committed rape upon her and smeared semen on her naked body. It was further alleged in the FIR that after commission of the said offence, the appellant, herein, had threatened his daughter not to tell about the incident to any person, otherwise, he would kill her. It was further alleged in the FIR that on earlier occasion also, the appellant, herein, had committed the same act on the victim girl with the help of his two sons.

On receipt of the said FIR, police registered the same as Jalukbari P.S. Case No. 531/2011 under Sections 376(f)/34 IPC.

On completion of the investigation, police laid a charge-sheet against the appellant, herein, under Sections 376(f)/511/506 IPC.

The learned Trial Court, on the matter being committed to it, framed a charge against the appellant, herein, under Sections 376(2)(f)/511/506 IPC. The appellant, herein, having pleaded not guilty on the charge being read over and explained to him, a trial ensued.

The learned Trial Court, upon appreciating the evidences coming on record, proceeded vide judgment dated 12.09.2013 to convict the appellant, herein, under Section 354 IPC and sentenced him, as noted hereinabove. The learned Trial Court basing on the evidences coming on record had acquitted the appellant, herein, from the charge framed against him under Sections 376/511/506 IPC.

Being aggrieved, the appellant, herein, has instituted the present proceeding.

4. Mr. G Khandelia, learned Amicus Curiae, by referring to the deposition of the prosecution witnesses during the trial, has submitted that there appears apparent contradictions in the depositions of the witnesses, more particularly, the depositions adduced by the victim girl and those adduced by her father as PW1 and by her mother as PW2. He has further submitted that a doubt exist as to whether the material found on the undergarment of the victim girl was the semen released by the appellant, herein, and or shampoo, as contended by the appellant, herein. He has further submitted that while the victim girl was alleged to have been subjected to sexual assault by the appellant, herein, she had not raised any hue and cry, inasmuch as, no evidence has been brought on record from the tenants residing in the adjacent rooms of hearing any such hue and cry raised by the victim girl, when she was being subjected to such sexual assault by the appellant, herein.

5. Mr. Khandelia, learned Amicus Curiae has further submitted that the undergarments of the victim girl were not seized by the Investigating Officer and thereby, no scientific examination of the same could be carried out. Accordingly, he submits that a doubt exist with regard to the story projected by