Allowed

Shri. Fulbabu Ray v. the State of Nagaland and Anr.

Gauhati HC10 Feb 2026I.A.(Crl.)/8/2023

Case brief

AI extract

What is this about?

High Court allowed the appeal against conviction under the POCSO Act. The court held that the victim’s testimony was not reliable as she was unconscious and did not identify the appellant, and cited a violation of Section 235(2) CrPC regarding sentence hearing. The impugned judgment was set aside.

What did the court decide?

The impugned judgment dated 22.10.2021 is set aside. The appellant is discharged from the liabilities of the charges. The accused is released if not involved in any other case.

Shri. Fulbabu Ray Vs the State of Nagaland and… — Child Sexual Offences (POCSO) | Gauhati HC (2026)

Page No.# 1/14

GAHC020007942022

2026:GAU-NL:54

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : CRL.A(J)/9/2022

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SHRI. FULBABU RAY S/O SHRI. SARJAN RAY, R/O MASTER COLONY, DIMAPUR, NAGALAND.

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THROUGH-

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THE JAILOR, CENTRAL JAIL, DIMAPUR-797112, NAGALAND

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VERSUS

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THE STATE OF NAGALAND AND ANR KOHIMA NAGALAND

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2:SHRI. MONU GOSH(FIR INFORMANT) R/O H.NO.447-A MASTER COLONY DIMAPUR-79711

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Advocate for the Petitioner : SENTIYANGER, CHUBA IMCHEN,V ANNE THERIE,KONLI BUCHEM,JONGPONGSANGBA

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Advocate for the Respondent : GOVT ADV NL,

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Linked Case : I.A.(Crl.)/8/2023

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SHRI. FULBABU RAY S/O SHRI. SARJAN RAY R/O MASTER COLONY

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Page No.# 2/14

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DIMAPUR NAGALAND. THROUGH THE JAILOR CENTRAL JAIL DIMAPUR-797112 NAGALAND

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VERSUS THE STATE OF NAGALAND AND ANR KOHIMA NAGALAND

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2:SHRI. MONU GOSH (FIR INFORMANT) R/O H.NO. 447 A MASTER COLONY DIMAPUR-797112 NAGALAND. THROUGH THE OFFICER-IN-CHARGE WOMEN POLICE STATION DIMAPUR NAGALAND -----------Advocate for : SENTIYANGER Advocate for : P.P NAGALAND appearing for THE STATE OF NAGALAND AND ANR

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BEFORE

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HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER

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Advocates for the appellant : Mr. Sentiyanger

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Advocate for the respondents : Ms. S. Mere, P.P

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Advocate for the respondent No. 4 : Mr. Pfosekho Pfotte,

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Amicus Curiae

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Date of hearing and judgment : 11.02.2026

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JUDGMENT & ORDER

(Y.Longkumer, J)

The instant appeal under Section 374 of the Criminal Procedure Code, 1973 has been preferred by the appellant assailing the impugned judgment dated 22.10.2021 passed by the learned Special Judge (FTSC), Dimapur, Nagaland in G.R. 537/2017 arising out of Women P.S Case No.65/2017 by which the appellant was convicted under Section 4 and 12 of the POCSO Act for 15 years with a fine of Rs. 30,000/- and in default to undergo 1 year rigorous imprisonment.

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2. I have heard learned counsel for the appellant, Mr. Sentiyanger and learned Public Prosecutor, Ms. S. Mere as well as Mr. Pfosekho Pfotte, learned Amicus Curiae for the respondent No.2.

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3. The facts leading to the conviction of the present appellant is that on 01.08.2017 an FIR was lodged by the father of the victim before the women P.S, Dimapur, Nagaland stating that his daughter, 12 years of age had been raped by the appellant. A case was registered under Section 354/376 (2) (i) IPC r/w Section 4 and 12 of the POCSO Act. Thereafter, charge sheet was submitted on 23.09.2017 and charges were framed against the appellant/accused to which he pleaded not guilty. Thereafter, the trial proceeded and after hearing the parties, the learned Special Judge (FTSC), Dimapur, Nagaland convicted the appellant under Section 4 and 12 of the POSCO Act and was sentenced to 15 years rigorous imprisonment with a fine of Rs. 30,000/- and in default to undergo 1 year

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Page No.# 4/14

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rigorous imprisonment.

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4. Being aggrieved by the impugned judgment dated 22.10.2021 passed in GR 537/2017, the appellant has preferred the present appeal on the ground that no DNA test was conducted in spite of the fact that the victim got pregnant and had delivered a child. Learned counsel for the appellant submits that Section 53A CrPC mandates the DNA profiling of the accused during medical examination. Learned counsel relied on the case of Krishna Kumar Malik Versus State of Haryana reported in 2011 (7) SCC 130 where the Supreme Court had held that after the introduction of Section 53A CrPC, DNA test is mandatory. The prosecution's failure to conduct a DNA test was a significant lapse.

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5. It is also submitted by the appellant that the victim/PW-6 in her deposition stated that the accused used a spray on her and that she became unconscious and did not know what the accused did after she became unconscious. In her cross-examination, the PW-6/victim stated that she had not seen the face of the accused person who raped her. It is therefore submitted that the testimony of the victim/PW-6 is not reliable and does not implicate the appellant in any way.

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6. It is further submitted that no proper examination of the accused was done under Section 313 CrPC which has caused prejudice to the appellant as the incriminating circumstances were not put to the appellant specifically. Moreover, there is no eye witness and the entire prosecution case is based on conjectures and circumcises.

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Page No.# 5/14

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7. Learned counsel further states that the testimony of the victim regarding the spray which was used by the accused is very doubtful as there is no instant spray known which can make a person unconscious for a long time and moreover, the spray which was allegedly used had never been recovered or exhibited.

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8. Another contention of the learned counsel for the appellant is that the I.O/PW-7 in her cross-examination stated that she cannot say whether the victim’s baby belongs to the accused. The other PWs including the father of the victim are all hearsay witnesses. The doctor who examined the victim was examined as PW-5. The doctor in his testimony stated that the victim had conceived in the month of December, 2016. However, she was examined by him only on 2^nd August, 2017 and by that time it was about 8 (Eight) months from the date of the alleged incident. Therefore, the testimony of the doctor has no relevance in the present case. The sister of the victim was also examined as PW-4 and she deposed that the appellant used to come to their house and did bad things to her sister. However, there is no explanation as to what the bad things were.

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9. Learned counsel also submits that there was no hearing on the quantum of sentence which is a mandatory provision under Section 235 (2) CrPC. On this point learned counsel relies on a judgment of the division bench of this Court in judgment and order dated 31.01.2022 passed in CRLA(J)/8/2020, Zothanpuia Versus State of Mizoram, wherein the Division Bench that non compliance with the mandatory provisions of Section 235 (2) cannot be treated as a mere irregularity curable under Section 465 of the CrPC. The court held that non

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compliance of Section 235 (2) CrPC goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence.

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10. Learned counsel submits that suspicion however, grave cannot take the place of proof and in the present case the prosecution case is built on strong suspicion rather than strong evidence.

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11. Finally, learned counsel for the appellant submits that Sections 29 and 30 of the POSCO Act does not relieve the prosecution of its burden to prove the foundational facts. Only when the foundational facts are established, the duty is cast upon the accused to prove his innocence. In the instant case the prosecution has not established the foundational facts and therefore, the prosecution has not been able to prove the case beyond reasonable doubt. Hence, it is prayed that the impugned judgment dated 22.10.2021 passed by the Special Judge (FTSC) Dimapur, Nagaland in G.R. No. 537/2017 maybe quashed and set aside.

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12. Learned Public Prosecutor, Ms. S. Mere appearing for the State respondents has submitted that the deposition of the victim as PW-6 has clearly proved that it was the appellant who had raped her and made her pregnant. She had deposed that he used to come to the house every day and used to threaten her with a knife not to tell her parents. And that he used to rape her by gagging her mouth. Learned Public Prosecutor submits that the sister of the victim on being examined as PW-4 also deposed that when their parents were out of the house the appellant used to come to their house and did bad things to her sister. He used to come to their house many times when their parents were out and her sister was

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Page No.# 7/14

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very scared and used to tell her not to tell anyone.

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13. Learned Public Prosecutor further submits that the statement of the victim recorded under Section 164 CrPC has also clearly shown that the appellant used to spray some liquid on her face and later when she woke up and went to the toilet, her private parts used to hurt. Further, when she woke up she was on the bed with her pants down. She stated before the magistrate that the appellant used to tell her that he would beat her if she told anything to her mother and even used to threaten her with a knife. Learned Public Prosecutor submits that the testimony of the victim/PW6 is reliable and the conviction can be sustained based on her testimony alone. Learned Public Prosecutor therefore prays that this Court may not interfere in the impugned judgment dated 22.10.2021 in GR 537/2017 and it should be upheld by this Court.

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14. The learned Amicus Curiae appearing for the respondent No. 2 has also adopted the submissions of the learned Public Prosecutor. Further he has relied on the case of Ganesan vs State reported in (2020) 10 SCC 573 , wherein the Supreme Court held that “a prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. The evidence of a prosecutrix must receive the same weight as is attached to an injured witness in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured witness”. The Supreme Court also held that “absence of injury on the prosecutrix may not be a factor that leads the Court to absolve the

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Page No.# 8/14

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accused”. The Court further held that “Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of a prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars”.

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15. We have given our anxious consideration to the submissions made by the learned counsel for the parties. The law is well settled that in a case under the POSCO Act, the burden is on the prosecution to prove the foundational facts; that the victim is a child; that the alleged incident had taken place; that the accused had committed the offence and when physical injury is present, to establish the same with supporting medical evidence. In this connection, it may be relevant to refer to the case of Bhupen Kalita Vrs State of Assam reported in 2020 (3) GLT 403 in which it was stated:

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“71. In the light of the discussions above, the following legal positions emerge in any proceeding under the POCSO Act. (A) The prosecution has to prove the foundational facts of the offence charged against the accused, not based on proof beyond reasonable doubt, but on the basis of preponderance of probability. (B) Accordingly, if the prosecution is not able to prove the foundational facts of the offence based on preponderance of probability, the presumption under Section 29 of the Act cannot be invoked against the accused. (C) If the prosecution is successful in

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Page No.# 9/14

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establishing the foundational facts and the presumption is raised against the accused, the accused can rebut the same either by discrediting the prosecution witnesses through cross examination or by adducing his own evidence to demonstrate that the prosecution case is improbable based on the principle of preponderance of probability. However, if it relates to absence of culpable mental state, the accused has to prove the absence of such culpable mental state beyond reasonable doubt as provided under Section 30(2) of the Act. (D) However, because of legal presumption against the accused, it may not suffice by merely trying to discredit the evidence of the prosecution through cross-examination, and the defence may be required to adduce evidence to dismantle the legal presumption against him and prove that he is not guilty. The accused would be expected to come forward with more positive evidence to establish his innocence to negate the presumption of guilt.”

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In the instant case the victim being a child under the age of 18 years is not disputed. However, upon going through the evidence in the present case, specifically the testimony of the victim, we find that the testimony of the victim is not credible, reliable and does not inspire the confidence of the court. It is true that corroboration is not mandatory if the testimony of the victim is reliable. And the prosecution need not prove injury, rupture of hymen or presence of semen if the victim testimony’s is of sterling quality. In Rai Sandeep alias Deepu vs State (NCT of Delhi) reported

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Page No.# 10/14

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in (2012) 8 SCC 21 the Supreme Court has held that the, “sterling witness should be of a very high quality and calibre whose version should, therefore, be unassailable………..the Court considering the version of such witness should be in a position to accept it at face value without any hesitation. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely at the time when the witness makes the initial statement and ultimately before the Court. There should not be any prevarication in the version of such a witness”.

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16. The testimony of the victim/PW-6 is reproduced below:

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“My name is XXXX. I am now 13 years old.

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Uncle Ful Babu used to come to my house and used a sort of spray on me and I used to become unconscious.

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Initially I did not know what he used to do after making me unconscious. But later I came to know that he used to rape me when I came to know, he used to gag my mouth and rape me. I cannot remember well but he used to come to our house everyday after everyone leaves the house. Even if I shouted no one used to hear. For about 3/4 months he used to come everyday. But I never got a chance to tell my parents as uncle used to be with my parents every evening watching TV. He used to threaten me with a knife also not to tell parents.

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Once my teacher told me that my stomach was looking big and my eyes were also looking yellowish and so my teacher took me to the Doctor. The Doctor spoke to my teacher. Then my mother was called to the School Office and teacher spoke to my mother. Then my mother came to know everything and asked me what happened. Sometime uncle used to peep when I was bathing also. I

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Page No.# 11/14

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recognize accused in Court today.

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XXX - It is correct to say that the accused uncle is my neighbour for about 3 years.

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XXX - It is also correct to say that the accused uncle used to come with the spray and used to spray me from behind.

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XXX - It is also correct to say that at first I have not seen the face of the accused, as I was not in a conscious state. At last I came to know that it was uncle, the accused.”

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17. It is seen that the victim/PW-6 in her testimony stated that the appellant used a spray on her and she used to become unconscious. She deposed that she did not know what he used to do after making her unconscious. In her cross-examination she further stated that she did not see the face of the appellant as she was not in a conscious state. She deposed that only later she come to know that the accused raped her and further that the person who raped her was the accused. There is nothing in the victim’s testimony to indicate that she knew it was the accused who had raped her as she stated that she was unconscious and did not see the face of the person who raped her or did not know what was done to her when she was unconscious. How she came to know later that it was the appellant is also not explained. There is nothing stated by the prosecution witnesses that a Test Identification Parade (TIP) had been conducted to identify the appellant as the perpetrator of the crime in terms of Section 9 of the Evidence Act and Section 54A CrPC. Therefore, we are of the view that the victim in the present case cannot be held to be a “sterling witness” in the light of Rai Sandeep (supra).

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18. The presumption under Section 29 of the POCSO Act is not automatic and in the present case the prosecution has not been able to prove that it was the appellant alone who had committed the offence. If the foundational facts are shaky the presumption will not activate.

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19. The evidence of the other PWs has also been examined by the court. The deposition of PW-1 is only based on hearsay. The sister of the victim/PW-4 deposed that when their parents were out the appellant did bad things to her sister. However, this Court cannot put words in the mouth of the PW-4 to conclude that the bad things meant rape. The testimony of the doctor/PW-5 also clearly shows that the medical examination was done after a period of 8 (eight) months and therefore, his evidence also does not support the prosecution case. In criminal law when two views are possible, benefit of doubt is to be given to the accused.

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20. The Section 164 CrPC statement is not substantive evidence and cannot by itself form the basis of conviction. This statement can only be used for corroboration and for contradiction. The Section 164 CrPC statement in the instant case does not corroborate the prosecution case as the victim never stated that it was the accused who had raped her. There may be strong suspicion in view of the evidence that the appellant used to visit the house of the victim regularly when the parents were away and that he used to threaten her with a knife. But the law is no longer res integra that suspicion alone is not enough to convict an accused. In the celebrated case of Sharad Birdhi Chand Sarda Versus State of Maharashtra reported in (1984) 4 SCC 116, it has been

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Page No.# 13/14

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clearly held that suspicion cannot replace proof. And benefit of doubt has to be always given to the accused.

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21. We have also taken note of the fact that the impugned judgment dated 22.10.2021 was passed without hearing the appellant on the quantum of sentence which is a clear violation of Section 235 (2) CrPC. More so in the present case when the minimum sentence was 7 (seven) years imprisonment and the learned Trial Court had sentenced the appellant for 15 (fifteen) years.

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22. In view of the observations made herein above, we are of the considered view that the prosecution has not been able to prove the foundational facts in the present case and therefore, the impugned judgment dated 22.10.2021 passed in GR 537/2017 in Women P.S Case No. 65/2017 is unsustainable in law and hence it is set aside. Subsequently, the accused/ appellant is discharged from the liabilities of the charges under Section 354, 376 (2) (i) IPC r/w Section 4 and 12 of the POSCO Act. The jail authority of Central Jail/District Jail, Dimapur are directed to release the appellant/accused, if not involved in any other case.

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23. We deem it appropriate to place on record our appreciation for the valuable assistance rendered by Pfosekho Pfotte, learned Amicus Curiae for the respondent no. 2. He would be entitled to the prescribed fee.

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24. The Registry shall transmit the Trial Court Records to the concerned trial court.

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Page No.# 14/14

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Appeal stands disposed.

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JUDGE JUDGE

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Comparing Assistant

Shri. Fulbabu Ray v. the State of Nagaland and Anr.

Case brief

What is this about?

What did the court decide?

Shri. Fulbabu Ray v. the State of Nagaland and Anr.

Case brief

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