Raju Gogoi @ Rajen vs The State Of Assam

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GAHC010231562024

2026:GAU-
AS:16500-DB

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/116/2024
RAJU GOGOI @ RAJEN
S/O LT. MEGHNATH GOGOI @ LULU, R/O VILL- CHORAIMURIA, P.S.-
NORTH LAKHIMPUR, DIST-LAKHIMPUR
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:SMTI CHUNIA DAS
ROMONI CHUK
NORTH LAKHIMPUR
LAKHIMPUR
ASSAM
INDI
Advocates for the appellant : Mr. A. Das. …..Amicus Curiae
Advocates for the respondents : Ms. B. Bhuyan, Sr. Counsel. & Addl. P.P., Assam, assisted by
Ms. R. Saloi for the respondent no.1 and
Ms. M.K. Brown, Legal Aid Counsel for the respondent no.2.

Date on which judgment is reserved : 04.11.2026
Date of pronouncement of judgment : 11.11.2026
Whether the pronouncement is of the : N/A
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?

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JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)

1. Heard Mr. A. Das, learned Amicus Curiae for the appellants. Also heard
Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor assisted
by Ms. R. Saloi, learned counsel for the State respondent and Ms. M.K. Brown,
learned Legal Aid Counsel for the respondent no.2.

2. The appellant has put to challenge the impugned judgment dated
30/01/2024 passed by the Special Judge (POCSO), Lakhimpur, North Lakhimpur,
in Special (POCSO) Case No. 04/2023, arising out of North Lakhimpur P.S. Case
No. 371/2022, by which the appellant has been convicted under Section 366 IPC
read with Section 6 of the POCSO Act, 2012. The appellant has accordingly been
sentenced to undergo rigorous imprisonment for 5 years for committing the
offence under Section 366 IPC with a fine of Rs.3,000/-, in default of payment,
to undergo simple imprisonment for 3 months. The appellant has also been
sentenced to undergo rigorous imprisonment for 20 years with a fine of
Rs.10,000/-, in default of payment, to undergo simple imprisonment for 6
months under Section 6 POCSO Act.

3. The conviction and sentence of the 27 year old appellant had been
done, as he had kidnapped his 14 year old sister-in-law and slept with her, prior
to being traced and caught by the Police along with the victim, after 8 days.

4. The brief facts of the case is that an FIR dated 22/07/2022 was

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submitted by the informant (PW-1) to the Officer-in-Charge of the North
Lakhimpur Police Station, stating that her husband, to whom she had been
married for two years had resented her ever since they got married. As her son
had fallen sick, PW-1 had gone to her parents' house to get him treated. Around
2:00 a.m, the husband of PW-1 kidnapped PW-1’s younger sister who was 14
year old and they could not find any trace of her sister despite searching for her.
Pursuant to the FIR, North Lakhimpur Police Station Case No. 371/2022 under
Sections 363 and 365 IPC was registered.

5. PW-7 was made the Investigating Officer. On taking up the
investigation, PW-7 recovered the victim along with the appellant from Laluk
Police Station. After recording the statement of the victim before a Magistrate
under Section 164 Cr.P.C and collecting evidence, PW-7 submitted a charge-
sheet against the appellant, on finding a prima facie case against him under
Section 363/365 IPC read with Section 4 of the POCSO Act. The learned Trial
Court thereafter framed charges against the appellant under Section 366/376(3)
IPC read with Section 6 of the POCSO Act, to which the appellant pleaded not
guilty and claimed to be tried.

6. The learned Trial Court examined 7 Prosecution Witnesses and 1 Court
Witness, prior to examining the appellant under Section 313 Cr.P.C. The learned
Trial Court thereafter came to a finding that the appellant had committed the
offences punishable under Section 366 IPC read with Section 6 of the POCSO
Act.

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7. Being aggrieved with the conviction and sentence passed vide the
impugned judgment dated 30/01/2024 by the learned Trial Court, the present
appeal has been preferred by the appellant.

8. The learned Amicus Curiae submits that there are discrepancies in the
evidence of PW-1 (informant) and PW-2 (victim). While PW-1 stated that she
slept in a different room with her husband and son and the victim slept in a
separate room, the evidence of PW-2 (victim) is to the effect that she slept with
her sister (PW-1) on the night she was kidnapped. The learned Amicus Curiae
submits that while PW-2 had stated in her evidence that the appellant had
entered their house by breaking the bamboo wall to kidnap her, yhere was no
seizure of the broken bamboo wall by the Police. He also submits that there was
discrepancy in the testimony of the victim, inasmuch as, PW-2 had stated that
the appellant had taken her to Laluk, after kidnapping her. On the other hand, in
her cross-examination, PW-2 stated that the appellant had taken her away to
Moidomia and in her statement made under Section 164 Cr.P.C, PW-2 (victim)
stated that the appellant had taken her to Bamungaon in Laluk. He accordingly
submits that the discrepancies in the stand taken by PW-2, go to show that PW-
2 was not a sterling witness and as such, conviction could not have been based
solely on the evidence of PW-2. The learned Amicus Curiae further submits that
the statement made by the appellant during his cross-examination under
Section 313 Cr.P.C is to the effect that a false case had been lodged against him,
on account of the fact that his wife (PW-1, the informant) had refused to come
back to the matrimonial home even after requests had been made by the
appellant. The learned Amicus Curie submits that the above would clearly show
that there was no question of any illegal act having been committed by the

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appellant on the victim girl and the only reason for the filing of the present
case, was due to the appellant’s wife not willing to come back to the
matrimonial home. He also submits that the medical evidence shows that there
was no external injuries on the private parts of the victim or on any part of the
body of the victim and as such, there was no proof that the appellant had
committed aggravated penetrative sexual assault upon her. Further, no
spermatozoa was found on the victim.

9. The learned Amicus Curiae for the appellant further submits that the
birth certificate of the victim was not seized or brought on record. He further
submits that the ossification test of the victim showed that the victim was
between 14 to 18 years old at the time of the incident and as such, Section 6 of
the POCSO Act could not have been attracted to the facts of the present case.
The learned Amicus Curiae thus submits that in view of the above discrepancies
in the Prosecution case, the conviction of the appellant, vide impugned
judgment, was not sustainable and should accordingly be set aside.

10. Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor
for the State respondent and Ms. M.K. Brown, learned Legal Aid Counsel for the
respondent no.2 submit that though there are discrepancies in the statements
of the witnesses, the same are minor discrepancies and not major discrepancies
and as such, the said discrepancies can be ignored. They also submit that the
age of the victim has been proved to be 14 years of age at the time of the
incident. This has been proved in terms of the evidence given by the Court
Witness-1 (CW-1), who has proved the age of the victim on the basis of the

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Admission Register made by the school, which is admissible as evidence under
Section 35 of the Evidence Act. They also submit that the said evidence of CW-1
has also been corroborated by the evidence of the father of the victim (PW-3),
who has stated that his marriage had occurred in the year 2003 and the
informant had been born one and a half years later, while the victim had been
born 2 to 3 years thereafter. They also submit that the absence of injury in the
private parts of the victim does not mean that no rape has occurred, as has
been held by the Supreme Court in the case of The State of Himachal
Pradesh vs. Manga Singh , reported in (2019) 16 SCC 759.

11. The respondents’ counsels submit that the fact that the hymen was
ruptured, corroborated the fact that the appellant had sexual intercourse with
the victim. They also submit that the victim was 14 years of age, while her
brother-in-law (appellant) was 27 years of age. As such, it was the duty of the
brother-in-law to look after the young victim and not take advantage of her
innocence. They also submit that the kidnapping of the victim had occurred on
21/07/2022, while the medical examination of the victim was done on
28/07/2022. As such, any injury that might have been there earlier could have
been healed by then. They also submit that as the Prosecution had established
the foundational facts regarding the presumption that the appellant had sexual
intercourse with the victim, it was the duty of the appellant to discharge his
burden of proving that he had not done the said illegal act, which he failed to
do, in terms of Section 29 of the POCSO Act. As such, in view of the reasons
stated above, there was no infirmity with the conviction of the appellant under
Section 366 IPC and Section 6 of the POCSO Act.

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12. We have heard the learned counsels for the parties.
13. The evidence of PW-1 (informant) is to the effect that the appellant
was her husband and the victim was her younger sister. The incident had taken
place about one year back when her younger sister was 13 years old. On the
day of occurrence, PW-1 was in her mother's house sleeping along with her
husband and son in a room, while her sister (victim) was sleeping in another
room. At about 2 a.m, PW-1 woke up and noticed that her husband was missing
from the bed. On informing her mother about the same, they came to know
that her younger sister was also missing from the house. On not being able to
find them, PW-1 lodged an FIR with the police station in the morning. After 6
days, the police recovered her younger sister and also apprehended the
appellant from Laluk. Police then recorded the statement of the victim, got her
medically examined and her statement recorded under 164 Cr.P.C in the Court.
Thereafter, on PW-1's mother asking the victim as to what had happened, the
victim told her mother that the appellant had kidnapped her from the house by
gagging her mouth and took her to Laluk, where he raped her. PW-1 further
stated that the police seized one school certificate of her sister on being
produced by her.
In her cross-examination, PW-1 stated that her appellant husband was a
habitual drunkard and also used to take ganja, besides gambling. As he used to
torture her physically after consuming alcohol, PW-1 was staying in her parents'
house. Further, the appellant used to pick up quarrels with his own parents, the
parents of PW-1 and the villagers. PW-1 also stated that the appellant who was
in jail, threatened them that if he came out of jail, he would set their house on
fire.

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14. The evidence of PW-2, who is the victim and younger sister of the
informant, is to the effect that the appellant was her brother-in-law. While she
was sleeping with her sister at night, one year back, when she was 13 years of
age, the appellant had entered their house by breaking the bamboo wall and
kidnapped her by gagging her mouth and had taken her to Laluk. The appellant
then took her to a house and raped her. PW-2 further stated that the appellant
kept her in the said house and raped her for four days. The police recovered her
from Laluk and also apprehended the appellant and took both of them to Laluk
Police Station. The police recorded her statement, got her medically examined,
besides having her statement recorded in Court under section 164 Cr.P.C. PW-2
also stated that she submitted her school certificate to the police, which was
seized by the police.
In her cross-examination, PW-2 stated that she was 6 years older than her
brother, who was 8 years old. Further, her sister was 3 years older than her. PW-
2 stated that the appellant was a habitual drunkard, who also took ganja and
gambled. After taking alcohol, the appellant used to torture her sister and
picked up quarrels with his own parents, the parents of PW-2 and the villagers.
Accordingly, PW-2 used to wish that he was in jail. PW-2 denied the suggestion
that she had told the police that she was in love with the appellant and that he
had taken her away to Moidomia 8 days back. PW-2 denied the suggestion that
she did not sleep with her sister on the date of the incident or that she did not
tell the police that on the date of the incident, the appellant had entered their
house by breaking the bamboo wall and kidnapped her. PW-2 also denied the
suggestion that she did not tell the police that the appellant had kept her for 6
days at Laluk.

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15. The evidence of PW-3, who is the father of the victim, is to the effect
that the informant was his elder daughter and the victim was also his daughter.
The appellant was his son-in-law who had married his elder daughter
(informant). On the day of occurrence, which was a year back, all the family
members were sleeping. At about 2 a.m, PW-3's elder daughter made a hue and
cry, informing him that his younger daughter was not inside the house. Even
though they searched for her, they could not find her. In the morning, the elder
daughter lodged an FIR in the police station. At that time, the younger daughter
was 13 years old. After 4 days, the police recovered his younger daughter from
Laluk Deuri Gaon and also apprehended the appellant. PW-3 stated that the
police recorded the statement of his daughter and her statement was also
recorded in the Court. She was medically examined and the police seized one
school certificate of her daughter on being produced by her. The original school
certificate issued by the Headmaster of the Garehoga Balika M.E. School was
exhibited as M.O. 1. PW-3 also stated that he came to know that the appellant
had kidnapped his younger daughter and taken her away to Laluk Deuri Gaon
and that he also came to know from his wife that the appellant had a physical
relationship with his younger daughter.
In his cross-examination, PW-3 stated that he married in the year 2003 and that
his elder daughter was born after 1 ½ year of his marriage. His younger
daughter (victim) was 2-3 years younger to his elder daughter. The appellant
was a habitual drunkard who used to take ganja and gamble. After taking
alcohol, he used to torture his elder daughter and picked up quarrel with his
own parents and the villagers. He denied the suggestion that at the time of the
incident, the victim was above 18 years of age and not 13 years.

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16. The evidence of PW-4 is to the effect that he heard that the daughter
of one Junuka Das had been taken away by someone.
17. The evidence of PW-5, who was serving as a Demonstrator, Pathology
in North Lakhimpur Civil Hospital on 28/07/2022, was to the effect that at about
4 p.m, he medically examined the victim and according to the victim, she had
been forcibly taken away by her brother-in-law (appellant) to his friend's house
8 days back. Later, her parents had filed a case against the appellant. The
findings of the Doctor based on the medical examination of the victim was that
the victim's hymen had ruptured and that as per the ossification test, the victim
was more than 14 years of age but less than 18 years.
18. The evidence of PW-6 is to the effect that he did not know the
informant, though he knew the victim by her face. He also knew the appellant.
PW-6 stated that the incident took place about 1 year back and that the
appellant had married the elder sister of the victim girl. On the date of the
incident, the appellant had taken away the victim girl. He did not know what
had happened afterwards.
19. The evidence of PW-7 is to the effect that on 22/07/2022, he was
working as an ASI under the North Lakhimpur Police Station, when the then O/C
received an FIR lodged by PW-1. A case was then registered as N.L.P.S. Case
No.371/2022 under Sections 363/365 IPC and PW-7 was entrusted to take up
the investigation of the case. After completing the investigation and having
recorded the statement of the victim girl, besides having the victim's statement
recorded under Section 164 Cr.P.C and collecting the medical report of the
victim, he submitted a charge-sheet against the appellant under Sections

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363/365 IPC read with Section 4 of the POCSO Act, as he found sufficient
incriminating materials against the appellant.
20. In his cross-examination, PW-7 stated that PW-1 did not tell him that
on the date of the occurrence, she along with her husband and son were
sleeping on the same bed. PW-7 also stated that PW-2 (victim) stated that she
was in love with her brother-in-law and he had taken her away to Moidomia. He
also stated that he did not seize the bamboo fencing of the informant's house.
21. The evidence of the lone Court witness, CW-1, is to the effect that on
27/07/2022, he was working in Garehoga Balika Madhya Engraji Vidyalaya as
Headmaster. On that day, he issued one certificate in the name of the victim,
showing her date of birth as 10/01/2009. The certificate had been issued on the
basis of the entry made from Book No.2, Sl. No.1089. CW-1 also stated that he
had brought the counterfoil of the certificate issued in favour the victim. The
certificate and the counterfoil were all exhibited. CW-1 also stated that he had
brought the admission register for the year 2018 to 2023, wherein the name of
the victim had been registered at Sl. No.52, showing her date of birth as
10/01/2009. The admission register was also exhibited in the Court.
In his cross-examination, CW-1 stated that there was no countersign of the
higher authority in the certificate issued by him, as a countersign was not
required. He also stated that there was no signature of the father and mother of
the victim in Sl. No. 52 of the admission register. He also stated that the victim
had earlier studied in an L.P. school, prior to studying in his school and that he
had seen the certificate of the victim issued by the L.P. school.

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22. The explanation given by the appellant during his examination under
Section 313 Cr.P.C, is basically to the effect that a false case had been registered
against him due to his wife taking a decision not to come back to the
matrimonial home, despite the appellant's request to his wife to come back
home. Further, the informant had stated that she would lodge a false case
against the appellant to teach him a lesson.
23. The first issue to be decided is whether the victim was a minor, keeping
in view the fact that the Doctor's evidence is to the effect that the ossification
test determined the age of the victim to be more than 14 years and less than 18
years as on 28/07/2022, while the incident had occurred between 21/07/2022
and 27/07/2022. In terms of Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, the determination of the age of a child in
conflict with law has to be determined as per the procedure provided therein. It
is settled law that age determination that can be made in terms of Section 94 of
the said Act can also be used for determining the age of a victim of a sexual
assault under the POCSO Act. The determination of the age of a victim through
an ossification test can be done only if the date of birth of the victim cannot be
proved by way of the date of birth recorded in the admission register and the
certificate issued on the said basis by the school.
24. In the present case, the evidence of CW-1, who is the Headmaster of
the Garehoga Balika Madhya Engraji Vidyalaya, is to the effect that the date of
birth of the victim, as per the admission register of the school and the certificate
issued by the headmaster is 10/01/2009. The entry in the admission register of
the school had been made in the year 2020, while the incident had occurred in
the year 2022.

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25. The evidence of the father of the victim, who is PW-3, in his cross-
examination shows that the victim was born sometime in the year 2008, as his
deposition is to the following effect:-
“I married in the year 2003. My elder daughter was born after 1 and
half year of my marriage. My younger daughter i.e the victim is 2-3 years
younger to my elder daughter.”
26. Thus, the entry in the admission register of the school, which is the
basis for the birth certificate issued by the Headmaster of the school, has been
corroborated by the father of the victim. As such, the date of birth of the victim
would have to be considered to be 10/01/2009 and in which case, the taking
away of a child below 16 years and having sexual intercourse with the said child
would attract the offence punishable under section 366 IPC and Section 6 of the
POCSO Act.
27. Thus, while the age of the victim at the relevant point of time has been
proved to be around 14 years, the next issue to be decided is whether the
victim had been subjected to sexual intercourse by her 27-year-old brother-in-
law.
28. The evidence of the victim (PW-2) is to the effect that the appellant
had raped her after kidnapping her and the same has been corroborated by the
evidence of the Doctor (PW-5), who testified that the hymen of the victim girl
was ruptured. It is also clear from the evidence that the victim and the appellant
were apprehended from Laluk after a few days of the disappearance of the
victim. Though the evidence of the victim (PW-2) and the Investigating Officer

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(PW-7) gives rise to an inference that the victim was in love with her brother-in-
law and had gone willingly with her brother-in-law from her house, a minor is
not capable of giving a valid consent. Consequently, even if the victim had gone
willingly with the appellant from her house and had sex with the appellant, the
victim being below 16 years of age, the taking away of the victim who was
below 16 years of age from her house and from the guardianship of her
parents, which culminated in having sexual intercourse with her, amounted to
committing the offence of kidnapping under Section 366 IPC and aggravated
penetrative sexual assault in terms of Section 5(l) of the POCSO Act.
29. In view of the Headmaster of the school having proved the date of
birth of the victim as per the certificate issued by him, by relying upon the
Admission Register of the school showing the victim's date of birth to be
10.01.2009, the age determination by way of an ossification test was not
required. As the incident had occurred in July 2022, when the victim would have
been around 13 to 14 years old, the provisions of the POCSO Act and Section
366 IPC is attracted.
30. In view of the reasons stated above, we do not find any infirmity with
the learned Trial Court convicting the appellant under Section 366 IPC read with
Section 6 of the POCSO Act, 2012.
31. The appeal is accordingly dismissed.
32. Send back the TCR.

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33. In appreciation of the assistance provided by the learned Amicus Curiae
for the appellant and Legal Aid Counsel for the respondent no.2, their fees
should be paid by the Gauhati High Court Legal Services Committee, as per
norms.

JUDGE JUDGE
Comparing Assistant
Kuntal
Datta
Digitally signed
by Kuntal Datta
Date: 2026.11.11
14:33:01 +05'30'