Sahil Ali vs The State Of Assam And Anr.

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GAHC010037142023

2026:GAU-AS:6186

THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
(PRINCIPAL SEAT)
Crl. A. No. 115/2023

Md Sahil Ali
Son of Md. Abul Hussain @Md Muktar Ali
@Abul Ali
Resident of -Village-Betamahal,
Ward No.4, P.S.- Bokajan,
Pin No.782480, P.O. Bokajan,
District-Karbi Anglong, Assam .
… Appellant

-VERSUS-
1. State of Assam,
Represented by P.P., Assam.


2. Mrs. Usha Sahani,
W/o Mr. Ranjit Shahani,
R/o Sukanjan, Plyboard,

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Ward No.-7, P.S.- Bokajan,
P.O.- Bokajan, Pin No. 782480
District-Karbi Anglong, Assam .
…
Respondents


Advocates for the appellant : Mr. M. Rahman, Advocate.


Advocate for the respondent : Ms. B. Bhuyan, Addl. P.P, Assam

:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE RAJESH MAZUMDAR


Date of hearing : 29.04.2026
Date of judgment : 29.04.2026
(Rajesh Mazumdar, J)
Mr. M. Rahman, learned counsel, appears for the appellant, while Ms. B.
Bhuyan, learned Sr. Counsel and Addl. P.P appears for the State respondent. No
one appears for respondent No. 2.
2. Ms. B. Bhuyan has submitted a letter issued by the Officer-in-Charge of
the Bokajan P.S., which is to the effect that the respondent No. 2 has been
served notice and informed that in case she does not have the means to engage

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a lawyer, she may apply for appointment of a free legal aid counsel. As such,
notice is deemed to be served upon the respondent No. 2.
3. This is an application under section 374(2) of the Criminal Procedure Code
1973 assailing the judgment dated 22nd of December 2022 passed by the
Learned Special Judge (POCSO) Karbi Anglong, Diphu in POCSO Case number
02 of 2021, convicting the accused appellant under section 6 of the POCSO Act
and sentencing him to undergo rigorous imprisonment for 20 years and to pay a
fine of rupees 10,000 and in default of payment of fine to undergo simple
imprisonment for two months.
4. The prosecution's story, as per the judgment, is that an FIR was lodged by
the informant, who claimed to be the mother of the victim, stating that the
accused/appellant herein had sexually assaulted her minor daughter, aged about
14 years, twice and that he used to blackmail the victim by saying that he had
some vulgar photographs. Accordingly, Bokajan Police Station case no. 15 of
2021 under section 6 of the POCSO Act had been registered. Upon completion
of the investigation, a charge sheet under section 6 of the POCSO Act, vide
charge sheet no. 16 of 2021 dated 28.2.2021, was presented against the
accused, who is also the appellant here.
5. During the Trial, the prosecution had examined as many as six witnesses,
including the doctor who had examined the victim and the investigating Officer.
The victim and the informant were also amongst the six witnesses examined.
The statement of the accused was recorded under the provisions of section 313

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of the Cr. P.C., and after hearing the argument of the parties, the learned
Special Judge convicted the accused appellant by judgment dated 22.12.2022 in
POCSO Case number 02 of 2021, convicting the accused appellant under section
6 of the POCSO Act and sentencing him as stated herein before.
6. The Learned Counsel for the appellant has drawn the attention of this
Court to the evidence as deposed by the victim and the informant, who deposed
as PW 1 and PW 2 respectively and has stated that it would be apparent from
the statements made that the lodging of the FIR or the continuance of the
proceedings were not as per free will of either the victim or the informant but
had been done under the coercion and pressure of members of a religious
group.
7. The Learned Counsel has submitted that the statement of the victim itself
would show that she had a friendly relationship with the accused/appellant for
about seven months at the time of the incident and at the time of the lodging of
the FIR. The victim admitted in her evidence that it was a fact that the
members of a religious group had threatened her and her family, that if the
parents of the victim did not file a case against the accused, then they would
not be allowed to stay in their place, where they resided at the time of the
incident.
8. The Learned Counsel for the appellant submitted that the victim did not
state the nature of the physical relationship between her and the accused.
Learned counsel for the appellant has also submitted that the victim had refused

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a medical examination during the investigation.
9. He has further submitted that from the statement of the PW2, who was
the informant and the mother of the victim, that it would be apparent that the
informant/mother of the victim knew that her daughter had been keeping a
relationship with the accused through mobile phone and that the case was filed
only because the accused is a Muslim and the informant and her family were
Hindus.
10. The father of the victim, who deposed as PW3, stated that his wife and
their victim daughter had informed him that one day they were called by a
Hindu religious group, and this case was filed, and he knew nothing about the
incident. He denied knowing the date of birth of his daughter.
11. PW number 4 was the aunt of the accused, who did not know anything
about the occurrence.
12. The learned counsel for the appellant had thereafter referred to the
statement of the doctor who had examined the victim and who had deposed as
PW5, to draw the attention of the Court to the fact that the victim girl had
refused permission for medical examination. Accordingly, the victim was not
medically examined.
13. The investigating officer who deposed as the PW6 had stated that she had
conducted a search of the house of the accused and had collected a birth
certificate. During cross-examination, the investigating officer admitted that the
FIR was in English and the complainant did not know English. It was admitted

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that the FIR had been written by an advocate who was not listed as a witness.
It was admitted by the investigation officer that the date and time of the alleged
occurrence were not mentioned in the FIR, nor was any specific place of
occurrence mentioned in the sketch map made by him. Accordingly, the Learned
Counsel for the appellant has submitted that the entire case had emanated from
the pressure of a religious group, who had coerced the parents of the alleged
victim to lodge an FIR in this specific instance, and therefore, the allegations
and accusations against the appellant herein were false. The learned counsel
for the Appellant has submitted that the only reason for the learned trial judge
to have convicted the appellant, was that he had failed to demolish the evidence
and shake the credibility of PW1. The Learned Trial Court had found the
evidence of the PW 1 to be reliable, trustworthy, cogent and convincing and did
not find any reason to disbelieve her deposition.
14. The Learned Counsel for the appellant has submitted that in any case, PW
1, that is the victim, had failed to specify the date, time and place of occurrence
and more specifically when she had not described any specific act of the
accused appellant to be in the nature of a sexual assault upon her, findings and
conclusions of the learned trial court cannot be sustained in law.
15. Controverting the submissions made by the learned counsel for the
appellant, the learned Addl. P.P, Ms. Bhuyan Senior Advocate, has submitted
that it is not in dispute that the appellant was in a friendly relationship with the
alleged victim, but the fact remains that the victim had specifically stated that

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she had been in a physical relationship with the accused for two times at least
and her such statement could not be shaken during the cross-examination.
16. The learned Addl. P.P has submitted that the age of the victim, in any
case, was below 18 years at the time when she deposed before the Court, and
the mother of the victim had stated her to be about 14 years at the time of the
occurrence. The learned Addl. PP has submitted that there is no fault in the
judgment and order of the learned Trial Court, and therefore, the same does not
deserve any interference.
17.
We have heard the learned counsel for the contesting parties, and we
have also gone through the contents of the paper book, which contains the
records of the trial court as necessary. This court notices that the mother of the
victim had lodged the FIR stating that her daughter had been sexually assaulted
and mentally tortured by the accused herein, and that the accused herein had
assaulted her daughter twice and had tried to blackmail her daughter. However,
during the recording of her statement, while deposing before the learned Trial
Court as PW2, the mother of the victim had admitted in her examination in chief
itself that one day, some members of a religious group had come to her house,
and thereafter, she had gone to the Police Station along with her daughter to
file the case. She had admitted that she had not written the FIR, and she did
not know what was written in the FIR. She had stated that the FIR had been
written by some other person and told her to put her thumb impression only,
which she did. She admitted that she knew her daughter was in a relationship

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with the accused through mobile phone only. She admitted that the case had
been filed only because the accused and the victim belonged to different
religions.
18. The victim in her deposition before the learned trial court admitted that
they were in a friendly relationship and they used to make conversation through
mobile phone. It was admitted by the victim that the members of a religious
group had come to their house, thereafter the mother of the victim lodged an
FIR and that the members of the group had threatened them that if the case
was not filed, they would not let them stay in their place.
19. In view of the deposition of the two important witnesses, namely the
informant and the victim, this Court is of the considered opinion that the FIR
had been lodged under pressure from a group of persons, who did not want the
friendly relationship, if any, to continue between the victim and the accused
appellant. Therefore, this court is in agreement with the submission of the
learned counsel for the appellant that the FIR did not appear to be one that was
lodged out of the informant’s free will and it is not an FIR that expresses
genuine grievances seeking redressal. In fact, the FIR had not been written by
the informant, and the informant has denied knowledge of the contents of the
FIR.
20. Another aspect of the matter that has caught the attention of this Court is
the deposition of the father of the victim, who has stated that he knew nothing
about the case nor who has endorsed the statement of the family, i.e. the

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informant, who was his wife and the mother of victim and the victim that the
FIR had been lodged at the behest of a religious group.
21. The third and most important aspect that this court finds to take note of is
the deposition of the doctor who was entrusted to make a medical examination
of the alleged victim. The doctor had specifically stated that the victim had
refused to give permission for undergoing medical examination. Upon going
through the reports, this Court notices that the victim had made a statement
that the accused appellant had physical relations with her twice. There is no
indication as to the manner in which the physical relation had taken place
between the accused and the victim.
22. There is no specific allegation of any penetrative sexual assault or attempt
to have penetrative sexual assault in the statement of the victim. The victim has
not given any date, time or place of occurrence. When the very nature of the
relationship between the accused and the victim has not been specified, this
Court is of the opinion that the basic foundation of the allegation of sexual
assault, much less a penetrative sexual assault, can be said to be made out
against the accused appellant. The ingredients of Section 7 of the POCSO Act
require touching a particular body part and/or requiring the accused to make a
child touch a particular body part with sexual intent without penetration. When
there is a penetration involved in such sexual assault or when there is an
application of the mouth of the person concerned to particular organs of a child,
the allegation of a penetrative sexual assault can be said to have been made

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out. In the present case, the only term used is that they had a physical
relationship, without any indication towards any sexual act, either penetrative or
otherwise.
23. The learned Trial Court, in its judgment, has placed heavy reliance on the
statement made by the victim before under Section 164 of the Cr.P.C. However,
going through the records, the Court finds that the said
statements/circumstances have not been put to the accused at the time of
examining him under Section 313 of the Criminal Procedure Code. Therefore, in
the considered opinion of this Court, the reliance placed by the Trial Court
on the statement made by the victim under Section 164 of the Cr.P.C was wholly
uncalled for inasmuch as, statements made under Section 164 Cr.P.C by a
witness are not substantive evidence. They can only be used for corroborating
or contradicting the evidence of the said witness.
24. There is no other evidence to convince this court that sexual assault, be it
penetrative or otherwise, had been committed by the accused upon the alleged
victim. In the absence of the penetrative sexual assault being proved against
the accused, the question of holding the accused guilty of aggravated
penetrative sexual assault, cannot be upheld by this Court. When the
foundational facts under Section 5 (l) of the POCSO Act of 2012 are not
established, there can be no conviction and consequent sentencing of the
accused/appellant under the provisions of Section 6 of the POCSO Act of 2011.
25. Accordingly, the judgment dated 22.12.2022 passed by the learned Special

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Judge (POCSO), Karbi Anglong, Diphu, is interfered with. The accused is
acquitted of all the charges leveled against him. The accused is reported to be
on bail. On his acquittal, the bail bonds stand discharged.
26. Registry to return the Trial Court Records.
27. Appeal stands disposed.

JUDGE JUDGE

Comparing Assistant