Sri Hitesh Kakati vs The State Of Assam & Anr.

Heard Mr. A K Bhuyan, learned Senior counsel assisted by Ms. N Choudhury, learned counsel for the appellant. Also heard Mr. B Shama, learned Additional Public Prosecutor, Assam for the State.

This appeal under Section 415(2) BNSS, 2023 is directed against the Judgment and Order dated 09.07.2025 passed by the Court of the learned Additional Sessions Judge (FTC), Rangia in Sessions Case No. 22/2019 [hereinafter referred to as the ‘Trial Court’], convicting the appellant for the offence under Sections 376/506 IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for one month under Section 376 IPC and to undergo 1 year simple imprisonment under Section 506 IPC, where both the sentences to run concurrently, setting off the period of detention already undergone.

The prosecution case in a nutshell is that on 13.07.2013 upon the prosecutrix going to the house of the accused appellant for some work, he, in absence of his wife, by putting a knife against her neck snatched away her gold chain, gagged her mouth with a cloth and after closing the door, committed rape upon her. Accordingly, a case was registered being Changsari Police Station Case No. 137/2013 under Sections 376/379/506 IPC.

Upon investigation having been commenced, the Investigating Officer recorded the statements of the witnesses, including the prosecutrix and the accused/appellant. The Investigating Officer further sent the prosecutrix to be examined by the Judicial Magistrate under Section 164 CrPC and also for medical examination. The Investigating Officer also seized the mobile handsets of the accused/appellant, the prosecutrix and her husband, i.e., PW-2. The seized mobile handsets were also sent for FSL examination. Upon completion of the investigation, charge-sheet was submitted, whereafter the Trial Court upon the accused/appellant pleading not guilty, framed charges under Sections 376/506 IPC and commenced trial thereof.

During trial, the prosecution examined six witnesses, including the prosecutrix, her husband, the Officer-in-Charge and the Investigating Officer. The accused/appellant, apart from denying the incriminating circumstances put to him during his 313 CrPC examination, explained his plea of defence and also adduced defence evidence including himself.

The Trial Court upon completion of the trial found the accused/appellant guilty of the charges framed against him and by the impugned judgment and order convicted and sentenced him thereof.

Being aggrieved, the accused/appellant has preferred the instant criminal appeal.

Mr. A K Bhuyan, learned Senior counsel appearing for the accused/appellant submits that there is a delay of five months in filing the FIR in question, which itself makes the prosecution case unbelievable. He further submits that there are serious inconsistencies in the evidence of the prosecutrix recorded in Court vis-à-vis the initial statements made by her before the police officer as well as the Judicial Magistrate and also the version given in the FIR. He further submits that there is no corroboration, whatsoever, as regards the act of rape alleged by the prosecutrix. He further submits that there are contradictions in the testimony of the prosecutrix vis-à-vis the other prosecution witnesses. He thus submits that her testimony is not trustworthy, believable and credible.

He further submits that despite the mobile handsets of the accused-appellant, the prosecutrix and her husband having been seized and sent for FSL examination, the report having not been collected and exhibited during trial raises an adverse inference against the prosecution case. He further submits that the prosecutrix herself has deposed that the accused/appellant had recorded the act of rape committed upon her on the date of the incident in his mobile handset and had shown the same to her and that later on, after about five months, she and her husband, PW-2, had gone to the house of the accused/appellant to take the said handset in order to delete the video recording.

He further submits that the defence plea was that the prosecutrix had sent almost 78 obscene messages to the accused/appellant at different points of time, including during night hours. He thus submits that had the FSL report been exhibited during the trial, the innocence of the accused/appellant would have come to light. Hence, he submits that the prosecution has failed to prove the charges against the accused/appellant beyond reasonable doubt.

In support of the aforesaid submissions, he relies upon the following decisions:

Per contra, learned APP for the State-respondents submits that the prosecutrix has clearly maintained from the very initial stage that the accused/appellant had committed rape upon her. He further submits that her testimony is also supported by PW-2, her husband.

I have given my anxious considerations to the arguments advanced by the learned counsels appearing for the contending parties and have perused the materials available on record. I have also duly considered the case laws cited at the bar.

It appears that the Trial Court, being satisfied with the testimony of PW-1, the prosecutrix, itself being reliable, convicted the accused/appellant for committing rape upon her.

Undoubtedly, there is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militates against her veracity. [Refer: State of Himachal Pradesh -Vs-Raghubir Singh, reported in (1993) 2 SCC 622]

However, the present being an appeal against conviction, this Court is required to appreciate and re-appreciate the evidence on record itself to come to a conclusion as to whether the verdict returned by the Trial Court holding the appellant guilty is sustainable or not.

Keeping in mind the aforesaid principle, let me now turn to the testimony of the prosecutrix, i.e., PW-1, on the sole basis of which the conviction of the appellant was recorded.

PW-1, being the informant/victim in the case, deposed to the effect that in the year 2013, she and her husband, PW-2, had invested some amount of money in a private company, namely, Amrit Project Limited, wherein the accused/appellant was the team leader. She further deposed that the accused/appellant is the husband of her niece and that she used to visit them along with her husband.

She further deposed that one day in the month of July, 2013, upon the accused/appellant calling her to his home on the pretext that his wife had asked her to do some work, she had gone there after returning from her office. At that time, the wife of the accused/appellant was not in the house and while she was sitting and waiting there for his wife to come, the accused/appellant brought out a knife and put it to her throat and forcibly made her undress herself. Thereafter, he forcibly committed rape upon her. She further deposed that the accused/appellant also criminally intimidated her and threatened her not to disclose the same to anyone.

She further deposed that she somehow managed to flee from the clutches of the accused/appellant. She had also deposed that the accused had also undressed himself after she had undressed herself and laid her on the bed and then committed rape upon her. She further deposed that the accused/appellant had recorded everything in his mobile phone and was blackmailing her to keep silent.

After reaching home, she did not tell anything about the said incident to her husband, PW-2. She further deposed that subsequently, for about three months, the accused/appellant used to call her to his house by threatening her with dire consequences, including death. She further deposed that after about three months, when she could not take it any further, she informed her husband, PW-2.

She further deposed that PW-2 thereafter, along with one Bichitra Das, PW-4, and herself, went to the house of the accused/appellant, wherein PW-2 tried to snatch the mobile handset of the accused/appellant from him while he was lying on the bed in his house. However, the accused/appellant caught hold of them and assaulted them. Accordingly, they went to the police station and lodged the FIR.

During cross-examination, she clarified that during the intervening period of 147 days from the date of occurrence, she did not tell anyone about the incident. She denied the suggestion made by the defence counsel to the effect that she used to borrow money frequently from the accused/appellant with the pretext of returning the same upon receiving payment from the company, but did not return the same.

She further clarified that the occurrence had taken place on 13.07.2013. However, in the later part of the cross-examination, she clearly denied the suggestion of the defence counsel to the effect that she had gone to the house of the accused/appellant on 13.07.2013, meaning thereby that she denied having gone to the house of the accused/appellant on 13.07.2013, i.e., the date of the incident.

She further denied the suggestion of the defence counsel to the effect that she had sent almost about 78 obscene messages to the accused/appellant on his mobile. She further denied the suggestion of the defence counsel that she used to often ring up the accused/appellant at midnight and that the accused/appellant had warned her not to ring him up at night.

A perusal of the aforesaid testimony of the prosecutrix clearly indicates that her statement is limited to undressing and the accused appellant having committed rape upon her.

In order to constitute the offence of rape under Section 375 of the IPC, the evidence must disclose the commission of an act which falls within any of the forms of sexual acts enumerated in clauses (a) to (d) thereof, coupled with the circumstances specified therein. The mere use of the expression “rape” by a witness cannot, by itself, establish the commission of the offence unless the evidence discloses the act constituting rape within the meaning of Section 375 of the IPC.

Section 375 of IPC reads as under:

The provision contemplates different forms of sexual acts, including penetration of the penis to any extent into the vagina, mouth, urethra or anus, insertion of an object or a part of the body into the vagina, urethra or anus, manipulation causing penetration and application of the mouth to the vagina, anus or urethra, under the circumstances specified in the section. Thus, what is required is cogent evidence disclosing the particular acts committed by the accused appellant which answers the description of any of the acts constituting the offence under Section 375 of the IPC. The ingredients of the offence cannot be presumed merely from the use of the expression “rape”.

In the present case, the mere mentioning of the expression “rape” in the testimony of the prosecutrix before the Trial Court, without disclosure of the specific act(s) constituting rape, cannot by itself establish the essential ingredients of the offence under Section 375 IPC. Pertinently, the prosecutrix in her initial statements made before the Investigating Officer, merely stated that the accused/appellant had committed ‘bad act’ on her by making her seat in his house while his wife was away. However, thereafter, in her statement under Section 164 CrPC as well as her deposition before the Trial Court, she stated that the accused/appellant committed rape on her by making her lie down in the bed in his house. Significantly, none of her aforesaid disclosures, contain any narrations of penetration or of any other acts falling within clauses (a) to (d) of Section 375 IPC. It is in this context, her general assertion that the accused/appellant “committed rape” upon her requires careful scrutiny.

It is settled law that, in order to constitute the offence of rape, there must be evidence, clear and cogent, to establish that accused appellant had committed one of the several acts constituting the offence of rape.

In State of Madhya Pradesh -Vs- Mahendra @ Golu reported in (2022) 12 SCC 442, the Apex Court has held that even partial or slightest penetration of the male organ within the private part of the victim is sufficient for constituting the offence under Sections 375 and 376 IPC.

Therefore, where the prosecution case is one of penile penetration, the evidence must disclose such penetration, however slight it may be. Where the prosecution relies upon any of the other acts enumerated in Section 375, the evidence must disclose the particular acts which constitute the offence. What cannot be done is to presume the existence of any such ingredient merely from the use of the word “rape”.

In the absence of cogent evidence disclosing the essential ingredients of any of the forms of rape contemplated under Section 375 IPC, the offence cannot be said to have been established.

Hence, mere reference to the word “rape” in the testimony of the prosecutrix is not sufficient enough to attract the provisions of Sections 375 and 376 of the IPC. The ingredients necessary to constitute the offence of rape necessarily must emerge from the evidence on record, and in the absence of such evidence establishing penetration or insertion or manipulation causing penetration and/or application of the mouth, the same cannot be presumed so as to penalize the accused under such provision of law.

Thus, the conviction of the appellant under Section 376 of the IPC by the Trial Court appears to be without any cogent evidence establishing the essential ingredients of rape. Moreover, the prosecutrix herself has clarified during cross-examination that she did not go to the house of the accused/appellant on 13.07.2013, thereby creating a serious contradiction with the case set up by her in the FIR as well as in her evidence-in-chief. That being so, the evidence of the prosecutrix, when considered in its entirety, does not inspire confidence.

The testimony of the prosecutrix, therefore, appears to be wholly unreliable and untrustworthy and in the facts and circumstances of the present case, cannot be made the sole basis for conviction of the accused appellant.

Let me now revert back to the testimony of the remaining prosecution witnesses to ascertain as to whether there is any evidence whatsoever in support of the prosecution case. PW-2, who is the husband of the prosecutrix, deposed to the effect that on 13.07.2013, while he was at home, the accused/appellant, having called the prosecutrix to his house, she went there and upon her going there, the accused/appellant raped her and forcibly took away her gold chain and also recorded the incident in his mobile handset and thereafter blackmailed her that he would put the video on the internet. As a result, the prosecutrix later on lost her mental balance and upon being coaxed, she finally told him about the incident. Upon his advice, the prosecutrix lodged the FIR.

The police seized the mobile handset of the prosecutrix, wherein the accused/appellant allegedly used to send indecent messages. He further testified regarding seizure of the said mobile handset by the police as a seizure witness by signing the seizure list.

During cross-examination, he clarified that he, along with PW-4 and the prosecutrix, on 07.12.2013, went to the house of the accused/appellant, wherein upon finding the accused/appellant lying on his bed, he tried to take away his mobile handset. Upon the accused/appellant raising hue and cry, the neighbours came and assaulted them. He, however, denied the suggestion of the defence counsel to the effect that he wanted to flee away with the mobile handset of the accused/appellant. He further clarified that he does not know that the mobile handset had 78 obscene messages sent by his wife.

PW-3, who is the Mandal President of the BJP, deposed that the prosecutrix and PW-2 had come to his house and informed him about the incident of rape committed by the accused/appellant upon the prosecutrix.

During cross-examination, he clarified that the prosecutrix and her husband had come to his house after about three months from the date of occurrence.

PW-4, who is the person with whom PW-1 and PW-2 have claimed to have gone to the house of the accused/appellant on the date of filing of the FIR, deposed to the effect that he met the prosecutrix at the jurisdictional police station on 13.07.2013 at the time when she had lodged the FIR. He further testified as a seizure witness to the seizure of the mobile handset of the prosecutrix as well as another mobile handset without SIM card.

During cross-examination, he denied the suggestion of the defence counsel to the effect that on 07.12.2013 he had gone to the house of the accused/appellant along with the prosecutrix and PW-2. However, he clarified that the prosecutrix and PW-2 on 07.12.2013 had hired his vehicle to go to the police station to lodge the case and that till lodging of the same, they did not tell him anything about the case.

PW-5, who is the Officer-in-Charge who had received the FIR lodged by the prosecutrix and had registered the same, deposed that upon taking up the investigation of the case, he had visited the place of occurrence, i.e., the house of the accused, recorded the statements of the witnesses and seized two mobile phones of the accused/appellant from his possession along with the mobile handset of the prosecutrix and her husband, PW-2. He further deposed that he had sent the prosecutrix for medical examination and collected her medical examination report.

During cross-examination, he clarified that though he had sent the two mobile phones to the FSL, Kahilipara, Guwahati, for examination and report, he did not collect the same. He further clarified that the prosecutrix, during her statement under Section 161 CrPC, stated before him that the accused/appellant had committed a bad act upon her and that she used to frequently go to the house of the accused/appellant regarding some company’s matter.

PW-6, who is the Investigating Officer who concluded the investigation and submitted the charge-sheet thereof, during cross-examination clarified that he was not able to bring the FSL report of the seized mobile phones on record.

Upon closure of the prosecution evidence, the accused/appellant, after denying all the incriminating circumstances put to him, stated that he is innocent and has been falsely implicated.

In support of the aforesaid plea taken in his examination under Section 313 CrPC, he adduced two defence witnesses, i.e., Sri Parmeswar Das (DW-1) and himself (DW-2).

DW-1 deposed to the effect that in the month of November, 2013, the prosecutrix over telephone informed him that the accused/appellant had physically assaulted her and asked him to give her justice. He further deposed that accordingly he called the accused/appellant, who told him that the prosecutrix, along with PW-2 and PW-4, had come to his home to snatch his mobile phone and that upon him raising a hue and cry, the nearby village people came and abused them and recovered the mobile phone from being snatched as there were obscene messages in the phone.

He thereafter went to the house of the accused/appellant, wherein the accused/appellant had shown him his mobile phone which contained about 70-80 indecent messages. He categorically deposed that he had also seen some of the messages which were obscene. Nothing substantial could be brought out by the prosecution while cross-examining the aforesaid witness.

DW-2, the accused himself, deposed that in the year 2013, the prosecutrix borrowed Rs.30,000/- from him to contest an election, which she never returned. He further deposed that the prosecutrix used to call him on his mobile phone and when he asked her not to call him, she started sending him indecent messages on his mobile. He further deposed that both his mobile handsets had been seized by the police. Nothing substantial has also come out during his cross-examination.

What emerges from the aforesaid evidence of the remaining prosecution witnesses is that though the prosecutrix and PW-2 had claimed to have gone with PW-4 to the house of the accused appellant upon the prosecutrix informing PW-2 about the incident, PW-4 has clearly not supported the said version of the prosecutrix and her husband, PW-2.

It is further evident that the mobile handset containing the alleged video stated to have been recorded by the accused-appellant, as claimed by the prosecutrix, and the 78 obscene messages alleged to have been sent by the prosecutrix to the appellant, as claimed by the appellant in his defence, were sent for forensic examination. However, the FSL report was admittedly not collected by the Investigating Officer, PW-6, nor was the same brought on record during the trial.

In Tomaso Bruno & Anr. v. State of Uttar Pradesh, reported in (2015) 7 SCC 178, the Apex Court has clearly held that where the prosecution withholds the best available evidence, such omission may warrant an adverse inference against the prosecution and may raise serious doubts about its case. The Apex Court, while dealing with the failure of the prosecution to produce CCTV footage, observed that the best evidence which could have thrown light on the relevant aspect of the prosecution case having not been produced, the same assumes significance in assessing the prosecution evidence.

In the present case, undoubtedly, the FSL report relating to the mobile handsets of the prosecutrix as well as the accused/appellant could have thrown considerable light on the rival versions of the parties, particularly with regard to the alleged video recording and the alleged obscene messages. The prosecution, despite having sent the mobile handsets for forensic examination, failed to collect and produce the FSL report during trial. Such withholding of the best available evidence, in the facts and circumstances of the present case, warrants drawing an adverse inference against the prosecution and further adds to the doubt already arising from the oral evidence on record.

It is also significant that the appellant, right from the initial opportunity of cross-examining the prosecutrix, had taken the plea that it was the prosecutrix herself who was calling him continuously and sending obscene messages to him, which plea was maintained by him throughout the trial and even in his evidence as DW-2.

The standard of proof required of the defence certainly is not the same as that of the prosecution. The accused is not required to establish his defence beyond reasonable doubt and can probabilize the same by meeting the standard of preponderance of probabilities. [Refer: Reena Hazarika v. State of Assam, reported in (2019) 13 SCC 289.]

It appears from the evidence of DW-1 that he had seen some of the obscene messages in the mobile handset of the appellant, which, according to the defence, had been sent by the prosecutrix. The said evidence assumes significance particularly in view of the admitted failure of the Investigating Officer to collect and produce the FSL report of the seized mobile handsets.

The accused/appellant has, therefore, been able to probabilize his defence, not merely by making a suggestion in cross-examination, but by maintaining the same throughout the trial, by his statement under Section 313 CrPC and by adducing defence evidence. When this aspect is considered along with the material contradictions and omissions in the evidence of the prosecutrix, the unexplained delay in lodging the FIR and the withholding of the FSL report, the finding of the Trial Court that the prosecution had established its case beyond reasonable doubt cannot be sustained.

Moreover, the finding of the Trial Court appears to have been influenced by the statement of the prosecutrix recorded under Section 164 CrPC. It is settled law that a statement recorded under Section 164 CrPC is not substantive evidence and can be used only for the purposes of corroborating or contradicting the maker thereof in accordance with law. [Refer: State of Delhi -Vs- Shri Ram Lohia Para 13; AIR 1960 Supreme Court 490].

Pertinently, even the said statement does not disclose the commission of any specific sexual acts constituting rape within the meaning of Section 375 IPC. The prosecutrix therein had stated only about being made to undress and being touched in her private parts and having committed rape on her. However, in her evidence before the Trial Court she merely deposed that the accused/appellant “committed rape” upon her, without disclosing that the accused/appellant had touched her in her private parts. Most importantly, there was no mention of any of the specific acts constituting rape in any of the disclosures given by the prosecutrix at different points of time.

The Trial Court, therefore, could not have relied upon the statement under Section 164 CrPC to offer credibility of the prosecutrix’s statement made in the Court to conclude that the accused/appellant had committed rape upon the prosecutrix. In the absence of cogent and substantive evidence disclosing the commission of any of the acts contemplated under Section 375 IPC, the essential ingredients of the offence cannot be presumed and supplied by the Court.

This Court having already held that the testimony of the prosecutrix, when considered in its entirety, does not inspire confidence and is not of such a quality which can safely form the sole basis of conviction, the judgment of the Trial Court based principally upon the testimony of the prosecutrix and the statement recorded under Section 164 CrPC cannot be sustained in law. There is no cogent and convincing evidence, independent of the aforesaid material, establishing the commission of rape by the accused/appellant. So far as the conviction under Section 506 IPC is concerned, the same also rests substantially upon the allegation of the prosecutrix that the accused/appellant had threatened her with dire consequences, including death, and had criminally intimidated her not to disclose the alleged occurrence. However, in view of the serious inconsistencies and contradictions in the testimony of the prosecutrix, as noticed hereinabove, and in the absence of any independent or cogent evidence establishing the alleged threat, the said allegation also does not inspire confidence.

There is no other evidence, whatsoever, in support of the allegations made in the FIR which establishes the essential ingredients of the offences under Sections 376 and 506 IPC. The prosecution has not been able to prove its case beyond reasonable doubt. The material contradictions in the testimony of the prosecutrix, the absence of cogent evidence disclosing the specific acts constituting rape, the failure of the prosecution to produce the FSL report despite seizure and examination of the mobile handsets and the non-supporting evidence of PW-4, taken cumulatively, create a serious and reasonable doubt regarding the prosecution case.

The aforesaid doubt is further reinforced by the material inconsistency in the stand of the prosecutrix herself as regards her presence at the house of the accused/appellant on the alleged date of occurrence. While in her evidence-in-chief she had stated that the occurrence had taken place on 13.07.2013 after she had gone to the house of the accused/appellant, during the later part of her cross-examination, she categorically denied the suggestion that she had gone to the house of the accused/appellant on 13.07.2013. Thus, the prosecutrix herself has taken mutually inconsistent stands with regard to her very presence at the place of occurrence on the date on which the alleged incident is stated to have taken place. Such a contradiction goes to the root of the prosecution case and assumes considerable significance when the conviction is founded substantially upon her testimony.

The allegation of criminal intimidation under Section 506 IPC also rests substantially upon the same testimony of the prosecutrix, which, for the reasons recorded hereinabove, has been found to be unreliable and untrustworthy. In the absence of cogent and convincing evidence establishing the alleged threat and the requisite intention to cause alarm, the conviction under Section 506 IPC also cannot be sustained.

There being a reasonable doubt, the benefit of such doubt necessarily must go to the accused-appellant.

That being so, the impugned Judgment and Order dated 09.07.2025 passed by the Court of the learned Additional Sessions Judge (FTC), Rangia in Sessions Case No. 22/2019, is hereby set aside and quashed.

Accordingly, the instant criminal appeal stands allowed and the appellant is acquitted of all the charges.

It is pertinent to note that upon completion of hearing on 05.08.2026, the operative portion of the judgment acquitting the accused/appellant was pronounced in the open Court, with a direction for his immediate release. Accordingly, if the accused/appellant has not already been released, pursuant to the release order issued by the Registry of this Court, he shall be released forthwith.

Send back the TCR, along with a copy of this judgment.