Sri Bubu Dowarah vs The State Of Assam

Page No.# 1/12
GAHC010029302025

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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./356/2025
SRI BUBU DOWARAH
SON OF LALIT DOWARAH,
R/O- RANGPURIA,
P.S.- SIMIEN CHAPARI,
DIST.- DHEMAJI,
ASSAM, 787061
VERSUS
THE STATE OF ASSAM
REP. BY THE PP ASSAM
2:SEUTI PHUKAN
W/O - PADMA PHUKAN
R/O - VILL - NA-PAM KULIGAON
P.O. - SIMENMUKH
P.S. - SILAPATHAR
DIST - DHEMAJI
ASSAM
PIN - 78705
:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE ANJAN MONI KALITA

Advocate for the appellant : Mr. C. Goswami, Adv.
Advocate for the respondents : Ms. B. Bhuyan, Addl. PP.

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Date on which judgment is reserved : 27/08/2026
Date of pronouncement of judgment : 31/08/2026

Whether the pronouncement is of the: No.
operative part of the judgment ?

Whether the full judgment has been : Yes
pronounced?

JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)

1. Heard Mr. C. Goswami, learned counsel for the appellant and Ms. B.
Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam,
appearing for the State. None has appeared for the respondent no. 2.
2. This is an appeal against the impugned judgment dated 07/12/2024,
passed by the Special Judge (POCSO), Dhemaji, in Special (POCSO) Case No.
68/2022, by which the appellant has been convicted under Section 376(1) IPC
and sentenced to undergo rigorous imprisonment for 25 years with a fine of Rs.
30,000/-, in default, rigorous imprisonment for 2 years.
3. The counsel for the appellant submits that the impugned judgment should
be set aside as there is discrepancy in the address of the appellant as per the
evidence of PW-4 and PW-1. As such, it appears to be a case of mistaken
identity of the appellant, for which punishment may be given to a wrong person.
The second ground of challenge is that the mobile phones of the victim and the
appellant were not seized by the Police to prove that there had been messages
sent between the appellant and the victim, which would have proved
conclusively, that the appellant was the person, whom the victim was referring
to as the rapist. Further, the place of occurrence as per the evidence of PW-5 is
to the effect that the same was in the back of the house of Tipai Gogoi.

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However, Tipai Gogoi was not examined.
4. The learned counsel further submits that the appellant did not rape the
victim and as the entire prosecution case rests only on the victim's testimony,
which does not appear to be truthful, the conviction has to be set aside. He
further submits that the false allegation of rape against the appellant has been
made only due to the fact that while the victim was expecting to marry the
appellant, the appellant had married another girl.
5. The learned Additional Public Prosecutor, on the other hand, submits that
conviction can be based on the sole testimony of the victim, provided the same
is truthful and inspires the confidence of the Court. She submits that the
evidence of the victim has not been shaken, inasmuch as, the factum of there
being sexual intercourse between the parties was not questioned by the
appellant during cross-examination of the victim. The only issue raised by the
appellant during cross-examination was that sexual intercourse had occurred
with the consent of the victim and that it was not rape.
6. The learned Additional Public Prosecutor further submits that the evidence
of the Doctor, which is to the effect that the hymen of the victim was absent,
corroborates the fact that rape had occurred. She further submits that when an
agreement for marriage had been made in the village meeting between the
appellant and the victim's family, after the allegation of rape had been made by
the victim and the same not being denied by the appellant, it cannot be said
that no rape had occurred. She accordingly submits that the impugned
judgement should not be interfered with, as there is no infirmity with the same.
7. We have heard the learned counsels for the parties.

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8. The brief facts of the case is that an FIR dated 05.05.2022 was submitted
by the mother of the victim (PW-6) to the Officer-in-Charge, Silapathar Police
Station, to the effect that when her daughter had gone to the local Bihu Mela in
the evening of 19.04.2022, the appellant, who was a resident of Rangpuria
village had dragged her into a nearby jungle and raped her. Following the
incident, the local villagers were informed and a public meeting was held. In the
public meeting it was decided that as the victim was only 16 years old, the
appellant should provide her maintenance until she reached the marriageable
age. An agreement was also executed by the appellant and as a
consequence of which, the appellant married her daughter and took her with
him. However, only 6 days after the marriage, the appellant married another
girl. As the appellant refused to acknowledge the victim as his wife, the
informant had brought back the victim to their home. Pursuant to the F.I.R,
Silapathar P.S. Case No.86/2022 under Section 366 I.P.C read with Section 4 of
the POCSO Act was registered.
9. The victim was medically examined on 06.05.2022 and her statement was
recorded under Section 164 Cr.P.C on the same day. After the Investigating
Officer had examined the witnesses and completed the investigation, he
submitted the charge-sheet, on having found a prima facie case established
against the appellant under Section 366 IPC read with Section 4 of the POCSO
Act.
10. The learned Trial Court framed charge under Section 376(1) I.P.C against
the appellant on 05.10.2023 and thereafter under Section 4 of the POCSO Act
on 31.10.2022, to which the appellant pleaded not guilty and claimed to be
tried.
11. The learned Trial Court thereafter examined 13 Prosecution Witnesses and

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after examining the appellant under Section 313 Cr.P.C, it came to a finding that
the victim's age was above 18 years at the time of the incident and that the
Prosecution had succeeded in proving the guilt of the appellant under Section
376(1) I.P.C beyond reasonable doubt.
12. The evidence of the victim (PW-1), is to the effect that 5 days prior to the
date of occurrence, she had received a call from the appellant, whom she did
not know, who identified himself as Dowarah. On breaking off the call, she
th
received messages from the appellant which she did not reply. On the 5 day of
Bohag in the year 2022 there was a Bohagi Mela at Dimow Krishnapur. Though
the appellant had called her in the morning, asking her to come to the Bohagi
Mela, the victim did not give any reply. Even then, she went to the Bohagi Mela
at around 6 p.m. When she reached Krishnapur through the village road, the
appellant caught her hand. On asking as to who had caught her hand, the
appellant told her that he was the one who had been making calls to her.
Thereafter, the appellant gagged her mouth and took her to the nearby jungle
by force. In the jungle the appellant raped her and fled thereafter, taking her
mobile phone with him. After putting on her T-shirt, the victim went to a nearby
homestead which was known to her. She fell down in the courtyard of the house
and started crying. The owner of the house, whom she called aunt, came out
and asked her as to what had happened. The victim then told the aunt that the
appellant named Dowarah had raped her and fled. Thereafter, her aunt gave her
a skirt and a T-shirt to wear. A message was sent to her house by her aunt,
whereupon her mother came. On informing her about the rape and the fact that
the said Dowarah had taken her mobile phone, her aunt told her that there was
only one Dowarah family in her village. Thereafter, the son of her aunt named
Puran showed the victim the WhatsApp profile of the appellant, which was in his

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phone. The victim recognized the person who had raped her and told them that
it was the same boy who had raped her and who used to call her on mobile,
besides sending messages.
13. PW-1 further stated that on the following day, a village meeting was held
in the house of Shri Chenai Phukan of Napam Kuligaon, who was her paternal
uncle. The victim went to the village meeting with her father and mother. The
appellant was also there with his father. The victim then came to know the
name of the rapist. In the village meeting, an agreement was made that the
appellant would marry the victim when the victim became a major. Two days
after the village meeting, the appellant found the victim on a village road and
took her to his house, where the victim stayed for five days. The appellant lived
with his parents and one sister and during the five days period, the appellant
th
did not rape the victim. On the 5 day of her stay in the house of the appellant,
the appellant brought another girl into the house after going through a marriage
and fled along with the said girl from the house. The victim then informed the
matter to her parents, due to which her mother came and took her back home.
Thereafter, the victim's mother PW-6 lodged an FIR. The victim was then
examined by a doctor and she was produced in Court, where she gave her
statement under Section 164 Cr.PC.
In the cross-examination of PW-1, she denied the suggestion that the
appellant had sexual intercourse with the victim's consent.
14. The evidence of PW-2 is that he heard from PW-6 that the appellant had
raped the victim.
15. The evidence of PW-3 and PW-5 is to the effect that they had heard from
villagers that the appellant had raped the victim.

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16. The evidence of PW-4, is to the effect that in the month of Bohag, 2022 at
about 7 p.m, she heard the sound of a girl in the back of her house, while she
was cooking. On going out of the house, she saw the victim had fallen down.
On enquiry, the victim told her that a boy from Rongpuria village had raped her.
Thereafter, the victim was brought inside the house, whereupon PW- 4 saw her
whole body covered with mud. PW-4 then said that she informed the members
of the victim's family and they came and took her away.
17. The evidence of PW-6, who is the mother of the victim, is to the effect
that PW-4 had informed her that her daughter was found lying at the back of
PW-4's house. PW-6 stated that he saw her daughter sitting inside the house of
PW-4. On enquiry, the victim told her that at about 8 p.m, while she was going
to the Bihu function at Krishnapur village, the appellant took her to a jungle and
raped her. On the next day, a village meeting was called, wherein the appellant
assured the gathering that he would marry the victim when she reached
marriageable age. On the next day, the appellant took the victim to his house.
However, after one week, he married another girl. Thereafter, an FIR was
lodged by her.
18. The evidence of PW-7, who is the husband of PW-4, is to the effect that
his wife PW-4 told him about the incident involving the victim, who had come to
their house, calling for help.
19. The evidence of PW-8, is to the effect that the informant was her sister-
in-law and that she did not know the appellant. About two years back, when she
was going to see the Bihu function at Krishnapur village, PW-4 called her to her
house, whereupon she saw the victim shivering. On enquiry, the victim stated
that a boy had raped her.

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20. The evidence of PW-9, PW-10 and PW-12 is only hearsay evidence.
21. The evidence of PW-11, who is the doctor, who examined the victim on
th
6 February, is to the effect that she was told by the victim that the appellant
had raped her in a jungle. Further, her mental status was stable and there was
no abnormal finding with regard to her general physical examination. The
victim's hymen was not intact and there was white discharge seen, for which,
she was referred to a gynecologist. The radiological examination by x-ray of the
victim's right wrist joint (AP view), gave the impression that the age of the
victim was between 16 to 17 years.
22. The evidence of PW-13, who is the Investigating Officer, is to the effect
that he sent the victim for medical examination and to the Court for getting a
statement recorded under Section 164 Cr.P.C. He also seized a School Certificate
of the victim and a Marriage Agreement dated 21.04.2022. As he found a prima
facie case under Section 366 and Section 4 of the POCSO Act, he filed the
charge-sheet.
23. The examination of the appellant under Section 313 Cr.P.C shows that the
appellant has given a blanket denial to all the incriminating evidence that has
been recorded against him. He has not given any explanation with regard to the
testimony of the victim, that she had stayed in the house of the appellant for
around 5 days after the incident.
24. The statement of the victim under Section 164 Cr.P.C is to the following
effect :
"My name and address are as stated above. I have known Bubu
Dowarah since before the last Bohag Bihu. On 19/04/22, I went to
Demow Krishnapur alone to watch Bihu (Bihu function). Around 7 p.m.,
while I was returning home from the Bohagi Mela, Bubu Dowarah dragged

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me to the jungle by gagging my mouth and had physical intercourse with
me by applying force. I sustained injuries in my hands, legs, back, chest
and eyes. Although I screamed, there was no one in the vicinity. He also
took my mobile phone. I somehow ran away from there and reached my
dodai's (uncle) house. That's all I have to say."
25. The evidence of the victim is to the effect that she had been raped by the
appellant. The appellant had however not confronted the victim during cross-
examination, by giving any suggestion that he had not raped her. Instead a
suggestion was made that the sexual intercourse between the two was
consensual, which was denied by the victim. Further, the doctor's evidence
shows that the victim's hymen was absent. On considering the above two facts,
we do not have any reason to come to any other conclusion, other than the fact
that the appellant had sexual intercourse with the victim. The only issue left to
be decided is as to whether, the sexual intercourse was without consent or with
consent.
26. On a reading of the evidence that there had apparently been a village
meeting concerning the appellant and the victim, whereupon the appellant had
apparently agreed to marry the victim in the village meeting, we find that the
appellant has not denied the evidence of the victim that there was a village
meeting involving the appellant and the victim.
27. PW-6 in her evidence has also stated that a village meeting was called,
wherein the appellant had given an assurance that he would marry the victim
when she reached the marriageable age. PW-6 further stated in her
examination-in-chief that the appellant took the victim to his house and after
one week, the appellant had married another girl. In the cross-examination of
PW-6, the appellant had not given any suggestion that there had been no
village meeting or that any agreement had been made where it was agreed that

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he would marry the victim, when she reached marriageable age. There is also
no suggestion made by the appellant to PW-6 that the victim did not stay with
the appellant or that no public/village meeting was held. The only suggestion
that has been put to PW-6 by the appellant in the cross-examination is that PW-
6 had lodged the FIR, as the appellant had married another girl and not the
victim.
28. There is a discrepancy in the F.I.R. and the testimony made by PW-6,
inasmuch as, the F.I.R speaks of there being a marriage between the appellant
and the victim after an agreement had been made in the village meeting.
However, the same is not reflected in the testimony of PW-6, wherein PW-6 had
stated that the appellant had promised to marry the victim when she attained
marriageable age. The fact that there was no marriage between the appellant
and the victim is also clarified by the evidence of the victim/PW-1 herself,
wherein her testimony was to the effect that soon after the agreement had
been made after the village meeting, she stayed in the house of the appellant
for five days and it was only due to the appellant bringing another girl whom he
had married, did she go home to her parental house. The above discrepancy in
our view does not vitiate the case of the Prosecution, as the same does not go
to the root of the matter.

29. With regard to the stand taken by the appellant that there could be a
mistaken identity of the appellant as the rapist, we do not find any reason to
come to such a finding, inasmuch as, the victim had identified the appellant in
the Court as the rapist and also on being shown a photograph of the appellant
by one Puran, who is the son of PW-4. We also find that non-production of the
messages sent by the appellant to the victim cannot have any relevance to the

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charge of the appellant having raped the victim, when the victim has identified
the appellant as the rapist.
30. The evidence of PW-4 is to the effect that the victim was covered with
mud and she was told by the victim that she had been raped. The above facts in
our view point out to the fact that the victim had been raped and no consent
had been given by the victim to have sexual intercourse with the appellant.
There was also a very short time period between the act of rape and the
meeting of the victim and PW-4, which gives rise to an inference that the
victim’s testimony was truthful.
31. The blanket denial given by the appellant to the adverse evidence
adduced against him during his examination under Section 313 Cr.P.C also gives
rise to an inference that the case of the Prosecution is true. In a case based on
circumstantial evidence, where no eyewitness is available and where an
incriminating circumstance is put to the accused, who offers no explanation,
then the same becomes an additional link in the chain of circumstances, to
make the chain complete. This is the law laid down by the Supreme Court in the
case of Wazir Khan v. State of Uttarakhand , reported in (2023) 11 SCR
39 .
In the present case, the case of the Prosecution is not based on
circumstantial evidence, but on the evidence of a victim of sexual assault, who
stands in the same footing as an injured witness, if not higher. The evidence of
the victim has also been corroborated by the evidence of the doctor and PW-4.
32. Though the facts of the case can also bring about another view, that the
case had been initiated, only because the appellant had married somebody else
other than the victim, the fact of the matter is that the initial charge/allegation

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of rape is never wiped out or made clean, only because of the alleged
agreement made in the village meeting, where the appellant agreed to marry
the victim when she reached marriageable age. The fact of the appellant raping
the victim is clearly proved by the Prosecution and as such, we do not find any
ground to interfere with the impugned judgment passed by the learned Trial
Court.
33. We are accordingly of the view that the conviction of the appellant under
Section 376(1) needs no interference. However, on considering the sentence
imposed upon the appellant, which is rigorous imprisonment for 25 years with a
fine of Rs.30,000/-, in default rigorous imprisonment for 2 years, we are of the
view that the ends of justice would be served if the sentence to be undergone
by the appellant is reduced. Accordingly, we sentence the appellant under
Section 376(1) IPC to undergo rigorous imprisonment for 10 years with a fine of
Rs.30,000/-, in default of fine to undergo rigorous imprisonment for another 6
months. Consequently, the sentence passed upon the appellant by the learned
Trial Court is modified to the extent indicated above.
34. For all the reasons stated above, the appeal is dismissed and modified,
only to the extent of the sentence to be undergone by the appellant. The
conviction under Section 376(1) IPC is however not interfered with.
35. Send back the TCR.


JUDGE JUDGE

Comparing Assistant
Digitally signed by Kuntal
Datta
Date: 2026.08.31 10:41:20
+05'30'
Kuntal Datta