Rape Victim’s Failure to Resist or Raise Alarm Cannot Discredit Her Testimony: Gauhati HC [Read Judgment]

Guwahati: The Gauhati High Court has dismissed the appeal of a man convicted under Section 4(2) of the Protection of Children from Sexual Offences (POCSO) Act, holding that a victim’s failure to violently resist or raise an outcry is no ground to discard her testimony, and that the plea of false implication over a tea garden lease was a “made-up story”.

A Division Bench of Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma was hearing Crl.A./102/2026 filed by Damba Rabidas against the judgment of 25.06.2025 of the Special Judge, Golaghat, in SLP(P) Case No. 43/2022. The Special Judge had sentenced him to 20 years’ rigorous imprisonment with a fine of ₹10,000, and one month’s simple imprisonment in default. The informant, the victim’s father, was represented by legal aid counsel.

According to the prosecution, on 26.06.2022, when the parents of the victim, then a young girl in Class VI, were away at the market, the appellant, who had taken the family’s tea garden on lease and visited the house in that connection, entered the house and committed penetrative sexual assault on her. She told her parents on their return, and an FIR was lodged. The prosecution examined 12 witnesses, including the medical officer and the investigating officer, and the defence examined two witnesses. The victim’s younger sister, PW-4, who was said to have seen the incident, was disbelieved by the Trial Court as a tutored witness.

The appellant argued that the testimonies of the victim and her sister were mutually destructive as to what the victim was doing, how long the appellant stayed and when the parents returned, that the victim neither raised an outcry nor resisted, that the plea of a false case to recover the leased garden was plausible, and that the age of the victim was not properly proved. The State and the informant submitted that the discrepancies were minor and the medical evidence supported the victim.

On age, the Bench relied on the testimony of the Additional Registrar of Birth and Death (CW-1), who produced the Birth Register showing that her birth was registered on 07.09.2008, about ten days after her recorded date of birth, and noted that the defence had put no suggestion to him that the date of birth was incorrect and had not disputed her age in arguments before the Trial Court. It rejected the contention on age.

On the discrepancies, the Bench held that since the Trial Court had discarded PW-4 as tutored, she could not be regarded as an eyewitness in the real sense, and that the differences between her account and that of the victim did not warrant rejecting the victim’s testimony. It found no material omission or contradiction in the victim’s deposition when compared with her statements to the investigating officer and the Magistrate, and noted that, on the defence’s own evidence, the appellant tended the adjoining garden and was not at his house that day.

On the absence of resistance and outcry, the Court observed:

“Different people have different reactions to the same situation, and there cannot be any hard-and-fast rule that in every case of rape there must be active resistance on the part of the victim by way of biting, kicking, etc.”

It added that the victim’s tender age was relevant, and that she may not raise an outcry or tell her neighbours “on account of shame and embarrassment”, which is no reason to discard her testimony.

The defence of false implication was also rejected. The Court noted that the appellant’s brother (DW-1) had claimed the informant demanded the return of the garden and threatened him, but none of this was put to the informant in cross-examination beyond a general suggestion. It found that version “made-up”. The Bench also held that the medical evidence of an injury to the private parts and a ruptured hymen supported the victim and negated the plea, although the doctor had not found spermatozoa. Finding no infirmity, it affirmed the conviction and sentence, dismissed the appeal and directed the Trial Court record to be sent back.

Appearances:

For the Appellant: Mr. P.C.R. Das, Mr. D. Chutia and Mr. S.J. Sarmah, Advocates.

For the State: Ms. B. Bhuyan, Senior Counsel and Additional Public Prosecutor, Assam.

For the Informant (Respondent No. 2): Ms. B. Haldar, Legal Aid Counsel.

Case Title: Sri Damba Rabidas vs. The State of Assam & Anr., Crl.A./102/2026

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