Page No.# 1/11 GAHC010084312022 2026:GAU-AS:13564-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./81/2022 SAJIKUL HAQUE @ APU S/O SAYEF ALI RESIDENT OF VILLAGE RUPOHIKAKH, P S SIPAJHAR, DIST DARRANG, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY PP ASSAM 2:SRI PABAN MEDHI S/O LATE NABIN MEDHI RESIDENT OF VILLAGE HATIMURIA PO HATKHALI, PS SIPAJHAR DIST DARRAN G ASSAM 78414 Advocate for the appellant : Mr. T. H. Hazarika, Advocate for the respondent no.1 : Ms. A. Begum, Addl. P.P. Advocate for the respondent no.2 : Mr. N. J. Medhi. ::: BEFORE ::: HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE NCHUMBEMO MOZHUI Date of hearing and judgment : 14.09.2026 Page No.# 2/11 JUDGMENT & ORDER (ORAL) (M. Zothankhuma, J) Heard Mr. T.H. Hazarika, learned counsel for the appellant. Also heard Ms. A. Begum, learned Addl. P.P, Assam appearing for the State respondent No.1 and Mr. N. J. Medhi, learned counsel for the respondent No.2. 2. This appeal has been filed against the impugned judgment and order dated 28.02.2022, passed by the learned Special Judge, Darrang, Mangaldai, in Special (POCSO) Case No. 23/2021, by which the appellant has been convicted under Section 8 of the POCSO Act, read with Section 4(2) of the POCSO Act. However, the learned Trial Court has sentenced the appellant only under Section 4(2) of the POCSO Act and sentenced him to undergo rigorous imprisonment for 20 years with a fine of Rs.20,000/-, in default, to suffer rigorous imprisonment for 6 months. 3. The learned counsel for the appellant submits that his challenge to the conviction and sentence imposed upon the appellant is only on three grounds. Firstly, the prosecution was not able to prove that the victim was below 16 years of age. Secondly, as the victim suffered from unsound mind, in terms of the evidence given by the doctor (PW-7), the testimony of the victim, regarding being raped, had to be corroborated from the evidence given by the other witnesses. He also submits that there was no dock identification of the appellant by the victim. As such, the impugned judgment and sentence was not sustainable and accordingly, the appellant should be acquitted of the charges framed against him. Page No.# 3/11 4. On the other hand, the counsels for the respondents submit that there is no infirmity in the decision of the learned Trial Court, except the fact that the birth certificate of the victim was not exhibited during trial. They also submit that though the seizure list, by which the victim’s birth certificate was seized, was not exhibited, the ossification test, having given the age of the victim in the range of 12 to 14, the age of the victim was proved to be below 16 years. Also, there was no requirement of adding another 2 years to the age of the victim, as an age range of +/- two years had already been given on the basis of the ossification test. They also submit that the fact that the victim was raped by the appellant has been proven by the evidence of PW-3, who had seen the victim and the appellant naked in the field. They also submit that the evidences of the witnesses show that the victim knew the appellant and thus dock identification of the appellant by the victim was not necessary. They accordingly submit that the impugned judgment should not be interfered with. 5. We have heard the learned counsels for the parties. 6. The brief facts of the case show that an FIR dated 22.11.2020 had been submitted by Prosecution Witness-1, who is the father of the victim, to the Officer-in-Charge of the Sipajhar Police Station. The FIR stated that the appellant took advantage of his absence and others on November 18, 2020 and raped his elder daughter, aged 12 years, after dragging her into the middle of a ripe paddy field. When a person had gone to the field and saw the appellant committing rape, the appellant had run away. 7. Pursuant to the FIR, Sipajhar PS Case No. 843/2020 was registered on 20.11.2020, under Section 376 IPC, read with Section 4 of the POCSO Act. Page No.# 4/11 8. After investigation was completed, the Investigating Officer (PW-8) submitted the charge sheet, on finding a prima facie case against the appellant under Section 376 IPC read with Section 4 of the POCSO Act. 9. The learned Trial Court thereafter framed two charges under Section 376 IPC and Section 4 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried. 10. The learned Trial Court thereafter examined 9 Prosecution Witnesses and after examining the appellant under Section 313 Cr.PC, the learned Trial Court came to a finding that the appellant was guilty of the charge of sexual assault, punishable under Section 8 of the POCSO Act and penetrative sexual assault punishable under Section 4(2) of the POCSO Act. The learned Trial Court, however, found it unnecessary to sentence the appellant under Section 8 of the POCSO Act and as such, sentenced him only under Section 4(2) of the POCSO Act. 11. The evidence of PW-1, who is the father of the victim, is to the effect that when his daughter had gone to the paddy field to tether the goats, the appellant had raped her, which was witnessed by PW-3. 12. The evidence of PW-2 (victim) is to the effect that when she had gone to tether goats in the field, the appellant had pulled her into the field and laid her on the ground and grabbed her chest. He then kissed her on the mouth and inserted his penis into her vagina. He thereafter fled by riding a bicycle. She also stated that she told her mother about the incident and the police took her to a doctor for medical examination. Page No.# 5/11 In her examination-in-chief, the victim stated that she did not know the name of the appellant. She also denied the suggestion that the appellant had not committed any bad act on her. 13. The evidence of PW-3 is to the effect that while he went to cut grass in the field, he met PW-4, who told him that he saw one boy pulling PW-2. On going forward, he saw PW-2 and a boy in a naked state. He also stated that the appellant hailed from the village Satkoli. PW-3 also stated that he did not know the name of the boy, but had seen him coming to their village. He then took the girl and left her in her house. In his cross-examination, PW-3 stated that he did not know if the victim suffered from any mental illness. 14. The evidence of PW-4 is to the effect that while washing clothes one day at 10 am, he saw a Muslim boy dragging PW-2. Becoming suspicious, he informed PW-3, who then went and saw both the victim and the appellant in a compromising position. PW-4 then stated that he saw the victim coming from the paddy field crying. PW-4 denied the suggestion that he had not told the police that he had seen the appellant dragging the victim to the paddy field. He also denied the suggestion that the victim was mentally ill. 15. The evidence of PW-5 is to the effect that her mother had told her that an incident had taken place between the appellant and the victim. Page No.# 6/11 16. The evidence of PW-6 is to the effect that PW-3 had told him that a boy belonging to the Muslim community had raped PW-2 in the paddy field. He also denied the suggestion in his cross-examination that the victim was mentally ill. 17. The evidence of the doctor (PW-7), who examined the victim, was to the effect that he found a reddish stretch mark over the victim's right breast. Her hymen was torn and as per the radiological report, she was 12-14 years old. 18. The evidence of PW-8, who is the Investigating Officer, is to the effect that he seized the age proof certificate of the victim on being produced by the informant and that after the investigation was completed, he submitted the charge-sheet. 19. The evidence of PW-9 is to the effect that she had recorded the statement of the victim under Section 164 Cr.PC. She also stated that she had examined the victim, prior to recording her statement, to ensure that she was able to narrate the incident. In her cross-examination, PW-9 stated that she found the victim fit to give the statement. She also did not find the victim to be mentally ill. 20. The examination of the appellant under Section 313 Cr.PC is to the effect that he was innocent and a false case had been foisted upon him. 21. In the present case, the fact that the victim has been raped by the appellant is quite apparent, in view of the evidence of PW-3, who stated that he saw both the victim and the appellant naked in the field, which corroborates the Page No.# 7/11 testimony of the victim that she was raped by the appellant. The doctor's evidence also corroborates the occurrence of rape, as the hymen of the victim was torn. Thus, we have no reason to doubt the fact that the appellant has raped the victim. However, the next question that is to be examined is as to whether the victim can be said to be below 16 years of age, so as to justify the conviction of the appellant under Section 4(2) of the POCSO Act. 22. In the present case, the birth certificate of the victim, though seized by the police, has not been exhibited. Neither has the seizure list been exhibited by the prosecution during trial. In the absence of proof of age of the victim, this Court would have to rely upon the ossification/radiological test conducted on the victim, in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. As per the ossification/radiological test, the victim was between 12 to 14 years of age. 23. In the case of Rajak Mohammad vs. State of Himachal Pradesh, reported in (2018) 9 SCC 248, the Supreme Court has held that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed. The benefit of any doubt naturally must go in favour of the accused. 24. In the case of Jaya Mala vs. Home Secretary, Government of J&K, reported in (1982) 2 SCC 538, the Supreme Court has held that the margin of error in age ascertained by the radiological examination is 2 years on either side. 25. In the case of Yuvaprakash vs. State of TM, reported in (2024) 17 SCC 684, the Supreme Court has held that in the absence of the birth Page No.# 8/11 certificate issued by the Corporation or Municipal Authority or Panchayat or the School or the Board, in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the prosecution would require to prove the victim’s age on the basis of an ossification test. As the ossification test is not a full proof method for determining the exact age of a child with conflict or the victim, the benefit +/- 2 years would have to be given to the age determination, on the basis of the ossification test, to the child in conflict with law or to the victim, depending upon the facts of each case. This is due to the fact that when there are two views available from the evidence on record, the Court should lean in favour of the accused. 26. On considering the fact that the prosecution has failed to prove the age of the victim during trial and due to the fact that a margin of about 2 years on either side is to be added for determining the age of the victim, the age of the victim would have to be considered to be 16 years as on the date when she was raped. Accordingly, in view of the above reason, the victim could not have been convicted and sentenced under Section 4(2) of the POCSO Act. However, the provision of Section 4(1) would be attracted in the said case. 27. With regard to the contention of the learned counsel for the appellant that the victim suffered from unsound mind, in terms of the evidence of the doctor (PW-7), we find that the same had been stated by the doctor on the basis of the history given to him by the guardian of the patient. His opinion was not made on the basis of some evaluation done by him. 28. That being said, there is nothing to show that the mental illness of the victim was of a permanent kind. In fact, the evidence of PW Nos. 1, 3, 4, 5, 6, 8 Page No.# 9/11 and 9 does not show that the victim was mentally ill or of unsound mind during the time of the incident. As such, it cannot be said that at the time that she was raped, the victim was mentally unsound. 29. With regard to the stand taken by the appellant's counsel that there was no dock identification of the appellant, we find that the Prosecution Witnesses have not been examined, to the effect that the appellant had not been identified as the perpetrator of the crime. Further, the appellant was present through VC at the time of the victim giving her evidence, as it was during the Covid 19 Pandemic times. With the appellant being present through VC at the time the victim gave her testimony before the learned Trial Court, wherein the victim denied the suggestion that the appellant did not rape her, clearly implies that the victim had identified the appellant. As such, it cannot be said that there was no dock identification of the appellant by the victim during her testimony before the learned Trial Court. The above being said, Section 36 of the POCSO Act states that the Special Court shall ensure that the child is not exposed in any way to the accused at the time of recording the evidence, while at the same time ensure that the accused is in a position to hear the child and communicate with his advocate, which may be through video conferencing. 30. The Section 164 Cr.PC statement of the victim is to the following effect:- “My name is Junmoni Medhi. I am 12 years old. The incident took place yesterday at around 10 a.m. I went to the agricultural land to see the goat. I went alone. I told my mother about it. A Muslim person came from my front side and pulled Page No.# 10/11 me into the field. At that time, no other person was there. He kissed me in my face and touched my chest and pressed it. I was wearing a frock. He removed my panties and inserted his penis into my vagina. Thereafter, he left the place by riding a bicycle. Someone was nearby. I raised alarm. But, people came and assaulted me. Two persons assaulted me. Thereafter, I came home. My family members received information from the villagers and informed the police. 31. The above statement made under Section 164 Cr.PC does not contradict the testimony made by the victim that she was raped. However, while it appears that the victim was assaulted by two persons after she was raped, which gives rise to a suspicion that there was something more to the rape than meets the eye, the factum of the victim being raped has remained. We thus find that the victim’s testimony that she has been raped has been corroborated. 32. In view of the fact that the age of the victim cannot be said to be below 16 years at the time of the incident, but that she was below 18 years, shows that Section 4(2) of the POCSO Act is not attracted to the case. As such, the appellant would have to be convicted under section 4(1) of the POCSO Act, 2012. 33. As stated in the foregoing paragraphs, there is no proof that the victim was of unsound mind and even if it is assumed that she was of unsound mind, the fact that the appellant had raped the victim is clearly proved by the evidence of the victim, which has been corroborated by the evidence of PW-3. 34. In view of the reasons stated above, we set aside the conviction and sentence of the appellant under Section 4(2) of the POCSO Act vide the Page No.# 11/11 impugned judgment & order dated 28.02.2022 and convict him under Section 4(1) of the POCSO Act. He is accordingly sentenced to undergo rigorous imprisonment for 11 years with a fine of Rs.20,000/-, in default, to suffer rigorous imprisonment for 6 months under Section 4(1) of the POCSO Act, 2012. 35. The appeal is accordingly disposed of. 36. Send back the TCR. JUDGE JUDGE Comparing Assistant