The Gauhati High Court dismissed a criminal appeal challenging the conviction of Nabibar Dewan under Section 4(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Section 376 of the Indian Penal Code for the rape of a seven-year-old girl. The Court upheld the trial court’s reliance on the victim’s testimony and medical evidence, rejected the defence’s claim of a delayed FIR and alleged land dispute, and affirmed that delay in lodging an FIR does not vitiate prosecution when explained by the victim’s medical treatment.
Background & Facts
The Incident
On 19 August 2019, the appellant, Nabibar Dewan, allegedly lured his seven-year-old niece to his house on the pretext of giving her chocolates, raped her, and then sent her home after threatening her not to disclose the incident. The victim returned home bleeding and in severe pain, informed her mother, and was taken to FAAMCH, Barpeta for treatment the next day.
Investigation and Charges
- The informant (PW-1) lodged an FIR on 22 August 2019 at Barpeta Police Station (Case No.178/2019) under Section 376(AB) IPC read with Section 4 of the POCSO Act.
- The victim was medically examined on 21 August 2019 and again on 26 August 2019 by the Doctor (PW-7), who noted recent tears to the hymen, swelling and tenderness of the vulva, but no spermatozoa.
- The charge-sheet was filed after investigation, leading to framing of two charges: under Section 376 IPC and Section 4 of the POCSO Act.
Trial Court Findings
- The learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta, convicted the appellant under Section 4(2) of the POCSO Act only, sentencing him to rigorous imprisonment for 20 years with a fine of Rs.10,000 and default simple imprisonment for one year.
- The Court found the victim’s testimony steadfast, corroborated by the medical evidence, and rejected the defence’s suggestion that the case was fabricated due to a land dispute, noting absence of any documentary proof of such dispute.
Procedural History
- 17.08.2023: Impugned judgment of the trial court convicting the appellant.
- Crl.A./333/2023: Criminal appeal filed before the Gauhati High Court.
- 15.09.2026: Date on which judgment was reserved.
- 17.09.2026: Date of pronouncement of the present judgment.
Parties' Positions
- The appellant contended that the delay in filing the FIR (three days) was suspicious, that the medical examination dates were inconsistent, and that the prosecution case was a false implication arising from a land dispute between the families.
- The respondent (State) argued that the delay was explained by the victim’s medical treatment, that no evidence of a land dispute was led by the defence, and that the victim’s testimony was credible and corroborated by the Doctor’s findings.
The Legal Issue
The central question was whether the delay in lodging the FIR and the alleged inconsistencies in the medical examination dates undermined the prosecution’s case under Section 29 of the POCSO Act, which raises a presumption of culpability once penetrative sexual assault is established, and whether the defence could successfully rebut that presumption by asserting a false case grounded in a land dispute.
Arguments Presented
For the Appellant/Petitioner
The appellant’s counsel submitted that the FIR was filed three days after the incident without adequate explanation, casting doubt on the veracity of the prosecution story. He highlighted that the victim was examined on 21 August 2019 and again on 26 August 2019, suggesting possible manipulation of medical evidence. Relying on Debraj Dutta vs. The State of West Bengal & Another, he argued that absent a credible explanation for delay, the presumption under Section 29 POCSO could not arise. He further contended that the prosecution failed to prove absence of a land dispute, citing the defence witnesses’ statements about a land disagreement between the families, and maintained that the victim’s testimony was unreliable due to lack of corroboration.
For the Respondent/State
The Additional Public Prosecutor countered that the FIR delay was expressly explained in the FIR itself and by PW-1, who stated that the family was occupied with the victim’s medical treatment at FAAMCH. He emphasized that the Doctor’s genital examination revealed recent hymenal tears, swelling and tenderness, which corroborated the victim’s account of penetrative assault. He noted that no documentary evidence of a land dispute was produced by the defence, and that the defence witnesses’ statements were vague and general. He relied on State of H.P. vs. Gian Chand and State of U.P. vs. Manoj Kumar Pandey to assert that delay in filing an FIR in rape cases is normal when the perpetrator is a relative or when the victim’s family prioritizes medical care over immediate police complaint.
The Court's Analysis
The Court began by noting that the foundational facts of penetrative sexual assault had been established by the prosecution through the victim’s unequivocal testimony and the medical evidence of PW-7, which showed recent tears to the hymen at the 4 o’clock position, swelling and tenderness of the vulva, but no spermatozoa. It held that once penetrative sexual assault is proved, the presumption under Section 29 of the POCSO Act shifts the burden to the accused to rebut the presumption of culpability.
The Court examined the defence’s contention regarding delay in filing the FIR. It found the delay of three days to be true but accepted the explanation provided by the informant (PW-1) and recorded in the FIR that the family was engaged in the victim’s medical treatment at FAAMCH. Citing State of Punjab vs. Gurmit Singh and Deepak Vs. State of Haryana, the Court observed that delay in lodging an FIR in sexual offences can occur due to various reasons, especially the reluctance of the prosecutrix or her family to involve police owing to considerations of honour and the need for immediate medical attention. The Court therefore concluded that the delay did not detract from the credibility of the prosecution case.
Turning to the alleged land dispute, the Court noted that the defence witnesses (DW-1 and DW-2) spoke in general terms about a land disagreement but failed to produce any document, record or specific evidence to substantiate their claim. The Court held that mere assertions of a land dispute, without corroborative proof, cannot be used to impeach the victim’s testimony or to suggest a false implication. It further observed that the defence had not put any suggestion to the prosecution witnesses during investigation that the case arose from a land dispute, rendering the defence’s theory an afterthought.
The Court also addressed the inconsistency in the medical examination dates. It explained that the victim was examined twice - once on 21 August 2019 (by the treating doctor) and again on 26 August 2019 (for the purpose of recording a statement under Section 164 Cr.P.C) - and that such repeat examinations are common in cases of child sexual abuse to assess healing and to collect evidence. The Court found no basis to doubt the medical evidence on this ground.
Finally, the Court held that the appellant had failed to discharge his burden under Section 29 POCSO to rebut the presumption of guilt. The appeal was accordingly dismissed, and the impugned judgment of the trial court was affirmed.
The Verdict
The appellant’s criminal appeal was dismissed. The conviction under Section 4(2) of the POCSO Act was affirmed, imposing rigorous imprisonment for 20 years, a fine of Rs.10,000, and default simple imprisonment for one year. The Court ordered the appellant to surrender to serve the sentence and directed the trial court to send back the trial court record (TCR). No additional compensation or costs were awarded.
What This Means For Similar Cases
Delay in FIR Is Not Fatal When Explained by Medical Treatment
Practitioners must now focus on providing a credible explanation for any delay in lodging an FIR in sexual offence cases. Medical treatment of the victim, especially a minor, is a recognised ground for delay and cannot be used to impugn the prosecution’s case. Courts will look for contemporaneous records such as FIR entries, hospital admission notes, or witness testimony that explain the delay as being necessitated by the victim’s health needs.
Burden Shifts to Accused Once Penetrative Assault Is Established
Once the prosecution proves penetrative sexual assault through victim testimony and corroborative medical evidence, the presumption under Section 29 POCSO operates. The defence must then adduce evidence to rebut the presumption; mere allegations of delay or motive without substantive proof are insufficient. This shifts the evidentiary burden significantly onto the accused in POCSO trials.
Land Dispute Claims Require Documentary Proof
Assertions of a land dispute or other ulterior motive must be supported by documentary evidence such as sale deeds, mutation records, or correspondence. Vague, general statements by defence witnesses, unaccompanied by any proof, will be disregarded by the court as an afterthought and will not affect the credibility of the prosecution’s case.
