Page No.# 1/18 GAHC010010792022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./12/2022 AMINUL SIKDAR @ MD ANIMUL SIKDAR S/O RAFIQUL SIKDAR @ MD. ROBIQUL SIKDAR, RESIDENT OF AMBARI WARD NO. 3 (HOWLY TOWN WARD NO. 3) PO AND PS HOWLY DIST BARPETA, ASSAM 781316 VERSUS THE STATE OF ASSAM REPRESENTED BY PP ASSAM 2:RUNA BORA BEGUM W/O MD SABUR ALI VILL UDAY NAGAR WARD NO 2 PO AND PS DERGAON DIST GOLAGHAT ASSAM PIN - 78561 Advocate for the appellant : Mr. N. Uddin, Adv. Advocate for the respondent : Ms. B. Bhuyan, Addl. P.P., Assam. :::BEFORE::: HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE RAJESH MAZUMDAR Page No.# 2/18 Date on which judgment is reserved : 18.08.2026. Date of pronouncement of judgment : 21.08.2026. Whether the pronouncement is of the : N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) (M. Zothankhuma, J) 1. Heard Mr. N. Uddin, learned Counsel for the appellant as well as Ms. B. Bhuyan, the learned Additional PP for the State. No one appears for the respondent no.2, even though notice was issued to the respondent no. 2. 2. This appeal has been filed against the impugned judgment dated 21/12/2021 passed by the learned Special Judge, POCSO, Golaghat, Assam, in Special (POCSO) Case No. 36/2021, arising out of Dergaon P.S. Case No.137/2021, by which the appellant has been convicted under Section 366 IPC and Section 6 of the PCOSO Act. He has accordingly been sentenced to undergo rigorous imprisonment for a period of 5 years with a fine of Rs. 5000/-, in default, to suffer rigorous imprisonment for 3 months under Section 366 IPC. The appellant has also been sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.5.000/-, in default, to suffer rigorous imprisonment for 3 months under Section 6 of the POCSO Act. 3. The facts of the case in brief, is that an FIR dated 02/04/2021 was submitted by Prosecution Witness-1 (PW-1), who is the mother of the 12 year old victim, girl, which is to the effect that at around 9.30 am on 02/04/2021, her 12 year old daughter went missing while she was going to Dergaon Narikalguri Girls' School. Pursuant to the said FIR, Dergaon Police Station Case No. 137/2021 under Section 365 IPC, was registered. 4. PW-7 undertook the investigation of the case and collected Call Detail Records (CDR) of the mobile no. 8822742366 used by the victim and found that she was at Hawli in Barpeta District. Thereafter, with the assistance of the Hawli Police, the victim was recovered after 15/16 days. As PW-7 was on leave on the particular day, the victim had been recovered by Page No.# 3/18 the colleague of PW-7 Shri Niren Phukan. At the same time, the appellant was also apprehended by the Police. The victim thereafter gave her statement under Section 164 Cr.P.C. and she was also sent for medical examination. The Birth Certificate of the victim girl, which showed her date of birth to be 02.02.2008 or 02.02.2003 due to over-writing, was seized and on finding a prima facie case under Section 366 IPC and Section 4 of the POCSO Act against the appellant, charge sheet was submitted by PW-7. 5. The learned Trial Court thereafter framed charges against the appellant under Section 366 IPC and Section 376(3) IPC read with Section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court examined 7 (seven) Prosecution Witnesses and after examining the appellant under Section 313 Cr.P.C, the learned Trial Court came to a finding that the appellant was guilty of having committed the offences punishable under Section 366 IPC and Section 6 of the POCSO Act. The appellant was accordingly sentenced under Section 366 IPC and Section 6 of the POCSO Act as has been already stated in the earlier part of this order. 6. The appellant's counsel submits that the appellant has been convicted only on the deposition of the victim, which contradicts the evidence of the other Prosecution Witnesses. He also submits that when the victim has stated in her statement under Section 164 Cr.PC that she was in love with the appellant for more than two years, the same implied that the victim had gone willingly with the appellant and as such, there was no question of kidnapping. Further, there was overwriting in the Birth Certificate of the victim, due to which it could not be proved that the victim was a minor at the time she had gone away with the appellant. He also submits that the overwriting of the Birth Certificate of the victim from the year “2008” to “2003” had been done by the victim, to prove to the appellant and present herself as a person who had attained the age of majority, i.e, 18 years. In the alternative, he submits that that when the appellant and the victim were in a relationship without the appellant knowing that the victim was a minor, it cannot be said that the appellant had the intention to commit a crime. Further, the evidence of the Doctor (PW-6) was to the effect that the victim's age, as per his X-ray examination, was above 16 years and below 18 years. As the said X-ray examination report is to be considered by giving the benefit of plus/minus two Page No.# 4/18 years, the victim would have to be considered to be a major at the time of the incident. There is also no sign of injury on the private parts of the victim and as the appellant did not have any sexual intercourse with the victim, the conviction of the appellant under section 366 IPC read with section 6 of the POCSO Act was unsustainable. 7. On the other hand, the learned APP submits that there is no infirmity with the conviction of the appellant, inasmuch as, the medical examination showed that the hymen of the victim was absent. Further, the overwriting in the Birth Certificate of the victim had been put to test, by looking at the original register of Births and Deaths, Dargaon SHC and the counter foil of the Birth Certificate, which showed that the victim had been born on 02/02/2008. Also, there was no contradiction in the evidence of the Prosecution Witnesses. The consent of a minor cannot be said to be a valid consent in the eyes of the law. Also the victim has testified that they had sexual intercourse and the absence of the hymen corroborated the victim’s evidence. 8. The learned APP further submits that an adult cannot escape criminal liability by claiming that he was deceived or mislead by the victim regarding her age, inasmuch as, the law places a strict onus on the adult to refrain from having sexual contact with a child. Further, a child, who lacks sufficient maturity of understanding cannot be attributed with mens rea, for acts like overwriting or document manipulation, especially when orchestrated or influenced by an adult in an exploitative relationship. She submits that as the victim has been exploited by the adult appellant, there could not have been any manipulation of the Birth Certificate of the victim, by the victim. As such, the appeal should be dismissed. 9. The evidence of PW-1, who is the informant and mother of the victim, is to the effect that she knew the appellant. She also stated that on 02/04/2021, her daughter had gone to her school at about 9.30 a.m. and usually returned home by 1 p.m. However, on that day, she did not return home from school and she could not trace out her daughter. Accordingly, PW-1 informed the Police. The Police then traced her daughter and recovered her from Hawli in Barpeta District after 15-16 days. On asking her daughter as to what had happened, her Page No.# 5/18 daughter informed her that the appellant had taken her away forcefully to Guwahati, wherein they had stayed for a few days in a rented house. Then they went to Nagaon and back to Guwahati and then to Hawli in Barpeta District. The victim then found out that the appellant was a married person having children. When the victim requested the appellant to take her back home, the appellant threatened her. The appellant also broke her phone and did not allow her to call anyone. Further, the appellant had sexual intercourse with her forcefully. PW- 1 stated that at the time of the incident, the victim was studying in class-VII and was 13 years old. Her year of birth was 2008. PW-1 further stated that the Birth Certificate of her daughter which was issued by the Registrar of Births and Deaths, Dergaon SHC, vide registration no. 129 dated 18/02/2008, showed her date of birth to be 02/02/2008. The same was seized by the Police and she was a seizure witness to the same. The AADHAR card of the victim also showed her date of birth to be 02/02/2008. In the cross-examination of PW-1, PW-1 stated that she had not stated in detail what the victim had told her, regarding her staying in various places in Assam. She also denied the suggestion that her daughter had given her false information or that her daughter was more than 18 years old at the time of the incident. However, she stated that it appears that there was over-writing in the victim’s Birth Certificate. 10. The evidence of PW-2, who is the father of the victim, is to the effect that he knew the appellant as he had kidnapped his daughter. As his daughter had not returned home from school on the day of the occurrence, they searched for her. As his daughter could not be found, the Police were informed about the same. The Police thereafter recovered his daughter from Hawli in Barpeta District after about 15-16 days. On coming back from Hawli, his daughter (victim) told him that when she was going to her school, the appellant, who was at Dergaon, Chariali, met her and took her to Guwahati forcefully. They stayed there for a few days in a rented house and then went to Nagaon, then to Guwahati and lastly to Hawli in Barpeta District. There the victim found out that the appellant was already married and had children. On the victim requesting the appellant to take her home back, the appellant threatened her and broke her phone. She was also made to have sexual intercourse with the appellant forcefully many times. PW-2 further stated that at the time of the incident, the Page No.# 6/18 victim was studying in class-VII and was 13 years old. In his cross-examination, PW-2 stated that he came to know about the details of the incident from his daughter. He also denied the suggestion that his daughter was more than 18 years of age at the time of the incident. He also stated that he did not know if his daughter was having a love relationship with the appellant. He did not deny the suggestion that the appellant had eloped with his daughter. 11. The evidence of PW-3 is to the effect that the victim was his younger sister and that he knew the appellant as he had kidnapped his sister. On 02/04/2021, PW-3 came to know that his sister did not return home from school. The search for his sister did not result in anything positive. As such, the Police were informed, who ultimately recovered her from Hawli in Barpeta District after about 15-16 days. PW-3 also stated that he went with the Police to Hawli in Barpeta. The evidence of PW-3 is similar to the evidence of PW-2. 12. The evidence of PW-4 is to the effect that he knew the informant and the victim. However, he did not know the appellant. PW-4 stated that the victim's mother had one day informed him that their daughter was missing. However, he learnt that a few days later, the victim had been recovered and was living in her house. PW-4 further stated that as far as he knew, the victim was studying in class-VI at the relevant point of time and that he came to know from the father of the victim that she had been recovered from Barpeta. 13. The evidence of PW-5, who is the victim, is to the effect that while she was going to school on 02/04/2021, at about 10 a.m, the appellant suddenly met her and asked her to go with him. The victim refused to go with him. Then the appellant told her that if she did not go with him, he would commit suicide by jumping under a vehicle. The appellant told her that if he did so, the people around would think that the victim had caused his death. PW-5 then stated that as she was blackmailed, the victim went with the appellant. PW-5 further states that the appellant took her to the house of his elder sister in Guwahati. Thereafter, she was kept in a rented house in Guwahati for a period of 3-4 days Page No.# 7/18 in consultation with the appellant’s sister. Thereafter, the victim was taken to another sister of the appellant in Nagaon, where she was kept for 2-3 days. Then they went to Guwahati. While the appellant was out of the room in Guwahati, the appellant's wife made a phone call to the appellant's sister in Guwahati, which she was asked to receive. Thereafter, the appellant's wife told the victim that the appellant was already married and asked the victim to leave him. PW-5 stated that she could not go back home because she had no money for the bus. Though she intended to sell her golden earring, she could not do the same. The appellant's father also came to Guwahati and asked her to go back to her parental house. However, she could not do the same because of lack of money. PW-5 also stated that the appellant did not allow her to make any calls because he locked her mobile. On trying to call another person, the appellant then broke her mobile phone in anger. The appellant also told her that if she intended to go home, he would kill her. Thereafter, the appellant along with his father took her to Hawli in Barpeta District, where he found his wife and children in the house. When PW-5 tried to go back home from Barpeta, the appellant blackmailed her by telling her that he would commit suicide and kill the victim, if she intended to go back home. On that day, the Police recovered the victim from Barpeta. The victim's father, brother and father's brother had accompanied the Police. The appellant was also arrested. PW-5 further stated that during their stay in Guwahati, the appellant had sexual intercourse with the victim forcefully twice. PW-5 also stated that her statement was recorded under Section 164 Cr.P.C. 14. In her cross-examination, the victim stated that they had gone to Guwahati by bus with other passengers. She did not raise any alarm out of fear that the appellant might die by falling under a vehicle. PW-5 also stated that she Page No.# 8/18 knew the appellant when she had gone to the marriage of her cousin at Barpeta. She also stated that the appellant used to call her, but she usually declined to attend to his calls. She also stated that when she was brought before a Magistrate to record her statement, she stated that she was in a love relationship with the appellant, as the appellant had threatened her to say the same. She denied the suggestion that the appellant did not take her to Guwahati, Nagaon and Barpeta. She denied the suggestion that they did not have sexual intercourse. She also stated that she sometimes visited the house of the appellant's sister and that she used to talk with other people. She also denied the suggestion that she was more than 18 years old and not 13 years at the time of the incident. She also denied the suggestion that she had told the appellant that if the appellant did not marry her, she would commit suicide. She also denied the suggestion that she had been in love with the appellant for the last 2 years and that she had told him that she would commit suicide, if the appellant did not marry her. PW-5 (victim) also denied the suggestion that the appellant’s father had informed her parents about the incident and due to which, the victim’s parents had taken her back from Barpeta. 15. The evidence of PW-6, who is the Sub-Divisional Medical and Health Officer of SKK Civil Hospital, Golaghat, is to the effect that on 16/04/2021 at about 3 pm, he medically examined the victim on the basis of a Police requisition in connection with Dergaon PS Case No. 137/2021. On conducting the medical examination, she did not find any injury on the victim and spermatozoa was not seen. PW-6 found the age of the victim to be above 16 years and below 18 years. The pregnancy test was negative. The medical examination report of the victim showed that her hymen was absent. Page No.# 9/18 16. The evidence of PW-7, who is the Investigating Police Officer, is to the effect that he was working as an attached officer in the Dergaon Police Station. On 02/04/2021, PW-1 lodged an FIR, stating that her daughter was missing. During investigation, the CDR of mobile no. 8822742366, which was used by the victim was collected. The same showed that the victim was in Hawli, Barpeta District. Thereafter, with the assistance of the Hawli Police Station, the victim was recovered and the appellant was arrested. The victim was sent for recording her statement under Section 164 Cr.P.C and she was also sent to the hospital for medical examination. On completion of the investigation, he submitted a charge sheet, as he had found a prima facie case established against the appellant under Section 366 IPC read with section 4 of the POCSO Act. In his cross examination, PW-7 stated that he saw the overwriting in the Birth Certificate of the victim. On verification, he found that the date of birth of the victim in the Birth Certificate was correctly written as 02/02/2008. 17. The examination of the appellant under Section 313 Cr.P.C shows that the appellant stated that he did not elope with the victim, but that the victim had gone with him to Guwahati voluntarily and stayed with him in a rented house. The appellant also stated that he did not blackmail the victim and that the victim had already known beforehand that the appellant was a married man. He also denied the evidence that he had broken the victim's mobile phone. The appellant further stated that the appellant's father had taken the appellant and the victim to their paternal home in Barpeta. He also denied the suggestion that he had taken the victim forcefully or that he had sexual intercourse with the victim. The appellant also stated that the victim had told him that she was more than 18 years old and that she overwrote the year of birth in her Birth Certificate from 2008 to 2003. The appellant in his examination under Section 313 Cr.P.C also stated that the victim was in love with him. Page No.# 10/18 18. The statement of the victim (PW-5) under Section 164 Cr.P.C is to the following effect : “My name is Saina Begum and I am aged 13 years. I am studying in class VII. I have been in love with Aminul Sikdar for the last 2 years. On 02/04/2021, he made a phone call to me and asked me to come to him without informing anyone, and said that if I did not do so, he would die. Accordingly, I went to the address in Guwahati provided by him and I stayed there in a room separately for 4/5 days. Thereafter, we went to Nagaon and I came to know from one of his related sisters that he was married. Then, I wanted to go back home but he blackmailed me by telling that he would die and he again took me to Guwahati. His father came there and took me to their house where I saw his wife and a daughter. Aminul did not allow me to leave his house and he used to blackmail me by slitting his own hand. However, Police rescued me. I had physical relation with him many times and occasionally when I resisted him, he engaged in physical relation with me forcibly. He blackmailed me by making false promise. I have to say this much only.” 19. The learned Trial Court, on considering all the above evidence, had held that the victim had gone with the appellant only because of the fact that the appellant had blackmailed her, inasmuch as, he had told her that she would be liable for his death, as he would commit suicide if she did not go with him. The learned Trial Court had also held that the victim was about 13/14 years old at the time of the incident, in terms of the victim's Birth Certificate. The fact that the appellant had taken the minor victim to Guwahati and other places proved that she had been kidnapped. Further, they had indulged in physical relations as per the evidence of the victim. As sexual intercourse with a minor more than once violates Section 5(l) of the POCSO Act, the same is punishable under Section 6 of the POCSO Act. As such, when the foundational facts regarding sexual intercourse by the appellant with a minor had been proved and the appellant had not been able to discharge the onus of him being innocent of the crime, the learned Trial Court convicted him under Section 366 IPC and Section 6 of the POCSO Act. 20. In the case of Satish Kumar Jayanti Lal Dabgar Vs. State of Gujarat reported in (2015) 7 SCC 359, the Supreme Court has held that a minor is incapable of giving a valid Page No.# 11/18 consent. In the present case, it is to be seen if the appellant has exploited the victim and whether the appellant knew that the victim was a minor. 21. On a reading of the evidence adduced by the Prosecution Witnesses, at first blush, there appears to be no infirmity with the finding of the learned Trial Court that the victim had been kidnapped. However, the appellant and the minor victim had gone in a bus from Dergaon to Guwahati and thereafter stayed in a rented house, from there they had moved to others places such as, Nagaon and Hawli in Barpeta district, it is quite apparent that victim had gone willingly with the appellant and had met various people on the way. The victim had talked to not only the sister of the appellant, but also to the father of the appellant. The victim could have complained to any number of people and told them that she was being kidnapped if she had not gone willingly with the appellant, during the 15 days that she had travelled with the appellant. 22. The problem with the finding of the learned Trial court that the appellant is guilty arises, when we consider the fact that in the victim's statement made under section 164 Cr.PC, the victim had stated that she had gone by herself to the address in Guwahati provided by the appellant and had stayed in a room separately for 4-5 days. Secondly, the appellant, during his examination under Section 313 Cr.PC, has stated that the victim had told him that she was more than 18 years old and she had overwritten the year of birth from 2008 to 2003 in her Birth Certificate, which has not been controverted. A perusal of the victim’s Birth Certificate with the naked eye does not show with certainty, whether the date of birth is 02/02/2008 or 02/02/2003. 23. The evidence of the victim read with the corroborative evidence of the Doctor (PW-6), which showed that the hymen was absent, proved that the appellant had sexual intercourse with the victim. The victim being akin to an injured witness, we have to accept the testimony of the victim to be probable, though it is not an absolute rule that the testimony of an injured witness is always the gospel truth. In the present case, there is no denial of the fact that the appellant and the victim stayed together for more than 10 days, prior to the recovery of the Page No.# 12/18 victim by the Police. In fact, the evidence of the victim read with the answers given by the appellant during his examination under Section 313 Cr.P.C, indicates that the victim was in love with the appellant. This is also corroborated by the victim’s statement under Section 164 Cr.P.C. We have to piece together the story, not only from the evidence of the victim, but from the explanation given by the appellant during his examination under Section 313 Cr.P.C. When it is a fundamental requirement to put before an accused the adverse evidences recorded against him, to provide him a reasonable opportunity to explain the same, the duty of the Court is to consider such explanation. 24. In the case of Reena Hazarika vs. State of Assam, reported in (2019) 13 SCC 289, the Supreme Court held that Section 313 Cr.P.C can well be considered to be a constitutional right to a fair trial under Article 21 of the Constitution, even though it is not to be considered as a piece of substantive evidence. Paragraph-19 of the said judgment is reproduced hereinbelow, as follows : “19. Section 313 Cr.P.C cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) Cr.P.C. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C the Court is duty-bound under Section 313(4) Cr.PC to consider the same. The mere use of the word "may" cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C and to either accept or reject the same for reasons specified in writing.” 25. In the case of Jai Prakash Tiwari Vs. State of Madhya Pradesh, reported in 2022 SCC OnLine SC 966, the Supreme Court has held that the purpose of Section 313 Cr.P.C is to provide the accused a reasonable opportunity to explain the adverse Page No.# 13/18 circumstances that have emerged against him during the course of trial. Further, when an accused sets up a defence and offers an explanation, the accused is not required to prove his defence beyond a reasonable doubt, but only by preponderance of probabilities. 26. In the case of Parminder Kaur Vs. State of Punjab, reported in (2020) 8 SCC 811, the Supreme Court held that once a plausible version has been put forth in defence during examination under Section 313 Cr.P.C, then it is for the prosecution to negate such a defence plea. 27. In the present case, when the appellant has not denied the fact that he had stayed together with the victim and the victim had willingly gone with the appellant, it is clear that the appellant and the victim were having an affair. The only issue that is now required to be decided is as to whether it can be said that the appellant had an affair with the victim, while knowing that the victim was a minor. 28. With regard to the overwriting in the Birth Certificate of the victim, the same had been looked into by this Court during the present appeal proceedings, by comparing the entries in the original Register of Births and Deaths of the Dergaon S.H.C, Golaghat District, Assam and also by comparing the counterfoil of the Birth Certificate, which proved that the date of birth of the victim was 02/02/2008. As the FIR had been filed on 02/04/2021, the victim girl would have been around 13 years of age during the time the victim and the appellant had lived together for 15 days. Though the victim had apparently willingly gone with the appellant and had sexual relations with him, a minor cannot give a valid consent. Further, the appellant being a married man with a child, he should not have played around with the emotions of a vulnerable victim, who was allegedly a school going child. However, as stated earlier, the entire case boils down to whether the appellant knew that the victim was a minor at the time they were having their affair. 29. In the case Jai Prakash Tiwari (Supra), the Supreme Court has held that it is an established principle of criminal law that the burden of proving the guilt of the accused Page No.# 14/18 beyond reasonable doubt is upon the Prosecution. Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt, but only by preponderance of probabilities. 30. The appellant during his examination under Section 313 Cr.P.C. had stated that the victim had told him that she was 18 years old and that the victim had over-written her year of birth in her Birth Certificate from 2008 to 2003, which has not been controverted. 31. Question and Answer Nos.14 & 19 of the examination of the appellant under Section 313 Cr.P.C are reproduced herein below as follows:- “Q. No.14: From the evidence of the PWs 1, 2 & 4 as well as from the material exhibits 1, 2 i.e. the Birth Certificate and the Aadhar Card it appears that the date of birth of the victim Saina Begum is to 02.02.2008. This indicates that at the time of the incident she was aged at about 13 years only. What you have to say in this regard? Ans : She told me that she was more than 18 years old. She overwrote the year of birth from 2008 to make it 2003. Q. No.19: Have you anything more to say in connection with this case ? Ans: I did not elope her. She was in love with me. She told me that she was a major. She came to Guwahati to meet me inasmuch as her family members tortured her because of the love with me. I have two minor children. I did not commit any wrong with her.” 32. A reading of the explanation given by the appellant to Question No.14, in his examination under Section 313 Cr.P.C, goes to show that the appellant has put up a plausible version of not knowing the age of the victim. Further, when the appellant has set up a defence and offered an explanation which is probable, by considering the preponderance of probability of the victim having overwritten the year of birth in her Birth Certificate, it is the requirement of the Court to consider the explanation given by the appellant, to decide as to whether the plausible version given by the appellant creates a doubt in the mind of the Court or whether it corroborates the evidence of the Prosecution. Page No.# 15/18 33. The explanation given by the appellant to question Nos. 14 and 19 in his examination under section 313 Cr.PC shows that the victim had told the appellant that she was a major and that she had overwritten the year of birth in her Birth Certificate from 2008 to make it 2003. In terms of the decision of the Supreme Court in the case of Parminder Kaur (Supra), it was for the Prosecution to negate the defence plea set up by the appellant in his examination under section 313 Cr.PC. However, the Prosecution has failed to negate the defence plea that the overwriting on the Birth Certificate had been done by the victim and that she had told the appellant that she was over 18 years old. In terms of the decision of the Supreme Court, once an explanation/defence plea has been taken during the examination of an accused under section 313 Cr.PC, the Court would have to see whether the same creates a doubt upon the Prosecution case or whether it corroborates the same. We also find that the evidence of PW-1 shows that he had brought the Birth Certificate of the daughter and the same was seized by the police. Further, the said Birth Certificate of the victim was exhibited as M. Ext.-1. There is no whisper that the overwriting in the Birth Certificate had been done by the appellant. 34. Though, there is no proof that the victim was the one who had actually made the overwriting in her Birth Certificate, changing her year of birth from 2008 to 2003, we also find that there is no proof or suggestion or evidence that the appellant was the one who had made overwriting in the Birth Certificate of the victim. As such, the uncontroverted explanation of the appellant, given during his examination under Section 313 Cr.P.C. cannot be simply washed away, as a doubt has been created as to whether the appellant really knew that the victim was a minor, at the time they had gone on a trip to Guwahati and other places. 35. With regard to the controversy with the date of birth of the victim, i.e. whether it was 02/02/2003 or 02/02/2008, due to there being over-writing in her Birth Certificate, the date of birth of the victim girl in the Birth Certificate was proved to be 02/02/2008 during the pendency of the present appeal. Prior to the present appeal being filed, there was no proof as to whether the date of birth in the victim's Birth Certificate was 02/02/2003 or 02/02/2008. Though in normal circumstance, an accused may not be able to escape criminal liability by Page No.# 16/18 claiming that he was deceived or misled by the victim regarding her age, the manner in which the alleged deceit had taken place, would have to be considered. In the present case, there is overwriting in the victim’s Birth Certificate. The Birth Certificate was also never in the possession of the appellant. As such, it cannot be said that the appellant was aware that the victim was a child, due to the overwriting in the Birth Certificate of the victim. When the blame for manipulation of a document cannot be laid at the door of the appellant, with regard to overwriting in the victim’s Birth Certificate, it cannot be said that the appellant was fully aware that the victim was a child. Further, it is settled law that when there are two conflicting views, the view in favour of the accused would have to be taken. 36. While Section 29 of the POCSO Act provides that when a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the POCSO Act, the Special Court shall presume that such person has committed or abetted or attempted to commit such offence, unless the contrary is proved. 37. Section 30(1) of the POCSO Act provides that in any prosecution for any offence under the POCSO Act, which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. 38. As can be seen from sub-Section (1) of Section 30 of the POCSO Act, the accused can set up a defence to prove the fact that he had no mental state or mens rea to commit any offence under the POCSO Act, though he may be a married person. A moral wrong cannot translate into a criminal act, unless the statute provides for the same. For an accused to be liable for a criminal act, there has to be actus reus and mens rea. In the present case, when the Prosecution has not been able to negate the explanation given by the appellant that the victim had made an overwriting in her Birth Certificate and had stated that she was over 18 years of age, it cannot be said that the appellant had the intention to commit an offence under the POCSO Act and had known that the victim was a minor. 39. As has been stated earlier, the victim's statement under Section 164 Cr.PC is to the Page No.# 17/18 effect that she had gone to the address provided by the appellant in Guwahati. However, her testimony is to the effect that she and the appellant had gone together from Dergaon Chariali bus stand to Guwahati. The above 2 versions are not in consonance with each other and it cannot be said that the victim is a sterling witness. 40. It is interesting to note that while the victim had not been made a Prosecution witness in the charge-sheet, her testimony has been recorded by the learned Trial Court as PW-5. PW-5 in the charge-sheet is one Dr. Jesmine Begum, whose testimony has been recorded in the learned Trial Court as PW-6. It is not understood as to how the victim’s testimony had been recorded as a Prosecution Witness by the learned Trial Court, in the absence of her being made a Prosecution witness. There is nothing in the order sheet of the learned Trial Court, to show the manner in which the victim has given her testimony before the learned Trial Court as PW-5. No doubt, the learned Trial Court has the power to call the victim to give evidence as a Court Witness. However, there is nothing in the Trial Court Records, showing that the victim had been called by the learned Trial Court to give evidence as a Court Witness. 41. Be that as it may, when a doubt has been created by the appellant and the Prosecution has not been able to prove that the appellant had the knowledge that the victim was a minor or had the intention to have sexual intercourse with a minor, it cannot be said that the Prosecution has proved it’s case beyond reasonable doubt against the appellant, in respect of the charges framed under Section 366 IPC and Section 6 of the POCSO Act. The Prosecution has not been able to prove that both the elements, i.e, mens rea and actus reus, were present on the part of the appellant beyond reasonable doubt. As such, we find the conviction of the appellant under Section 366 IPC read with Section 6 of the POCSO Act to be unsustainable. 42. In view of the reasons stated above, the appellant is acquitted of the charges framed against him under Section 366 IPC read with Section 6 of the POCSO Act, by giving him the benefit of doubt. 43. The appeal is accordingly allowed. Page No.# 18/18 44. Consequently, the impugned judgment dated 21/12/2021 passed by the learned Special Judge, POCSO, Golaghat, Assam, in Special (POCSO) Case No. 36/2021, arising out of Dergaon P.S. Case No.137/2021 is hereby set aside. The appellant should be immediately released from judicial custody. 45. Send back the TCR. JUDGE JUDGE Comparing Assistant Sukham ay Dey Digitally signed by Sukhamay Dey Date: 2026.08.21 14:11:23 +05'30'