Page No.# 1/13 GAHC010060642024 2026:GAU-AS:13962 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./87/2024 MD. ABDULLAH S/O AHMED ALI, VILL.- BHAKUAMARI (ANANDA BAZAR), P.S.- SALBARI, DIST.- BAKSA, BTAD, ASSAM, PIN- 781318. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:ABUL KALAM S/O LT. BADSHA MIA VILL.- BHAKUAMARI P.O.- BARPETA P.S.- BARPETA DIST.- BARPETA ASSAM PIN- 781325 Advocate for the Petitioner : MR. A ROSHID, MS. T BEGUM Advocate for the Respondent : PP, ASSAM, MS F HUSSAIN (AMICUS CURIAE, R2) Page No.# 2/13 BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA Advocate for the Appellant : Mr. A. Roshid. Advocate for the Respondent No.1 : Mr. P.S. Lahkar, Addl. P.P., Assam. Advocate for the Respondent No.2 : Ms. F. Hussain, Amicus Curiae Date on which judgment is reserved : 18-06-2026 Date of pronouncement of judgment : 22-09-2026 Whether the Pronouncement is of the operative part of the judgment? : ___N/A_____ Whether the full judgment has been pronounced? : ___Yes_____ JUDGMENT & ORDER (CAV) Heard Mr. A. Roshid, learned counsel for the appellant and Mr. P. S. Lahkar, learned Additional Public Prosecutor, Assam for the respondent No.1. Also heard Ms. F. Hussain, learned Amicus Curiae for the informant/respondent No.2. 2. This is an appeal filed under Section 374(2) CrPC against the impugned judgment and order dated 29-02-2024, passed by the learned Additional Session Judge-cum-Special Judge (POCSO), Barpeta in Special (POCSO) Case No. 142/2019, whereby the appellant was convicted under Section 4 of the Page No.# 3/13 POCSO Act, and sentenced to undergo R. I. for 7 (seven) years and to pay fine of Rs.10,000/- with default stipulation and also convicted under Section 363 of the IPC and sentenced to undergo R.I. for 2 (two) years along with default stipulation. 3. The case of the prosecution in brief is that on 08.05.2019 an FIR was lodged with the allegation that about 7 (seven) months ago from the date of institution of the FIR, the minor daughter of the informant, who was about 14 years of age at that time, went to the house of one Arjan Ali when the accused appellant kidnapped her and took her to an unidentified location at Delhi and kept her confined and also sexually exploited his daughter during that time. 4. Based on the information, a case has been registered under Barpeta P.S. Case No. 963/2019 under Sections 365/376 IPC read with Section 8 of the POCSO Act. 5. During the course of investigation, the accused appellant was arrested on 09.05.2019 and the statement of the victim was also recorded under Section 164 CrPC and was medically examined. The statement of the witnesses were also recorded and on completion of the investigation, the I.O. submitted the charge sheet against the accused appellant under Section 365/376 IPC read with Section 4 of the POCSO Act. The charge sheet was laid before the learned Special Judge, Barpeta and the same was transferred to the Court of learned Additional Sessions Judge, Barpeta for disposal. 6. After furnishing the relevant copies and on appearance of the accused, the formal charge was framed under Section 365/376 IPC read with Section 4 of the POCSO Act, which was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. Page No.# 4/13 7. To bring home the charge, the prosecution had examined 6 witnesses in support of the case including the informant, the I.O. and the M.O. The defence took the plea of total denial and he did not adduce any evidence in support of his case. His statement was also recorded under Section 313 CrPC, wherein also he took the plea of innocence. 8. After recording the evidence of the PWs and hearing the arguments put forwarded by the learned counsel for the parties, the learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta had passed the impugned judgment and order dated 29-02-2024, in Special (POCSO) Case No. 142/2019, convicting the appellant under Section 4 of the POCSO Act, and sentencing to undergo R. I. for 7 (seven) years and to pay fine of Rs.10,000/- with default stipulation and also convicted under Section 363 of the IPC and sentenced to undergo R.I. for 2 (two) years along with default stipulation. 9. On being aggrieved and dissatisfied with the impugned judgment and order dated 29-02-2024, passed by the learned Additional Sessions Judge-cum- Special Judge (POCSO), Barpeta in Special (POCSO) Case No. 142/2019, the present appeal has been preferred by the accused appellant. 10. It is submitted by Mr. Roshid, learned counsel that the learned Trial Court did not appreciate the evidence on record in its true perspective and arrived at a wrong decision, which is liable to set aside and quashed. He further submitted that there are huge discrepancies amongst the PWs and the age of the victim also could not be ascertained and without any age proof, the order has been passed convicting the appellant under Section 4 of the POCSO Act. 11. Mr. Roshid, learned counsel further submitted that accused married the victim girl and they were living as husband and wife while they were at Delhi, Page No.# 5/13 but suppressing this fact, the FIR has been lodged against the appellant. 12. Mr. Roshid, learned counsel further submitted that the victim is an illiterate girl as she put her thumb impression in the statement though, as per mother of the victim, i.e., PW-3, she went to School only for 2/3 months. 13. Mr. Roshid, learned counsel further submitted that it is well settled that ossification test or other medical test can be considered as a guiding factor, but that cannot determine the age of any person. To substantiate his plea, he also relied on a decision of this Court in the case of Shiva Chautal Vs State of Assam [Crl. A. (J) No. 24/2021] dated 08.08.2023 and basically emphasized on para 33 of the said judgment, which read as under: “33. It is well settled that ossification test or other medical test though is a guiding factor for determining the age but it is not conclusive or incontrovertible and leaves a margin of error of two years on either side. It is also a settled position that the benefit of doubt with regard to the age of the victim always goes in favour of the accused. In the instant case, the radiologist has assessed the age of the victim 16 to 17 years. Considering the margin of error in age even as one year, the victim would be 18 years of age and would not be a child within the meaning of Section 2(d) of the POCSO Act.” 14. He accordingly submitted that in the instant case, the prosecution could not prove the age of the victim, which is the most essential part to deal with a case under the POCSO Act. 15. Mr. Roshid accordingly submitted that it is a fit case to set aside and quash the impugned judgment of conviction and sentence dated 29-02-2024, passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta in Special (POCSO) Case No. 142/2019. 16. Mr. Lahkar, learned APP submitted that in its statement made by the accused under Section 313 CrPC, he already admitted that age of the victim was Page No.# 6/13 16 and 1/2 years at the relevant time of incident. Thus, the minor age of the victim has already been admitted by the accused himself while giving his statement under Section 313 CrPC. 17. More so, the victim is found consistent in every stage while recording her statement as well as evidence and there is nothing to disbelieve the prosecutrix. Further, he submitted that in a case of rape or a case under the POCSO Act, the sole testimony of the victim is sufficient to pass an order of conviction and same needs no further corroboration, if her testimony is found to be believable and trustworthy. 18. The learned Amicus Curiae, Ms. F. Hussain appearing for the informant/respondent No.2 also submitted that the learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta had passed the order after proper appreciation of evidence on record and hence, there is no need of interference by this Court in the judgment passed by the learned Additional Sessions Judge cum Special Judge (POCSO), Barpeta. 19. Heard the submissions made by the learned counsel for the parties and I have also perused the case record including the Trial Court record and the judgment dated 29.02.2024 passed by the learned Additional Sessions Judge cum Special Judge (POCSO), Barpeta. 20. It is a fact that the entire case of the prosecution is based on the sole testimony of the prosecutrix and the other PWs also supported the case of the prosecution. However, it is a fact that there is no eye witness to the prosecution case and hence, the testimony of the prosecutrix is the most vital witness. 21. So before proceeding further, let us scrutinize the evidence on record. 22. PW-1 is the informant/father of the victim, who lodged the FIR before the Page No.# 7/13 Police Station. As per him at the relevant time of incident his daughter was aged about 14 years old and she was studying in Class-II in Nabanur L. P. School, Bhakuamari. But she discontinued her studies after three months. On the day of the incident, his daughter went to the house of one Arjan Ali for a social visit and thereafter, she was found missing. All the family members were searching for her for about 6/7 days, but she could not be found out, and later on, they came to know that the accused appellant had kidnapped his daughter. After about 7 months, the appellant brought his daughter back from Delhi and then only his daughter came to his house and he lodged the FIR. In his cross-examination, he stated that the house of said Arjan is situated at a distance of 40/50 meters from his house and he lodged the FIR only after 6/7 days of the incident. The accused got arrested in connection with this case after 6/7 months of the incident, when they returned from Delhi. 23. PW-2 is the victim of this case and she deposed that the incident took place in the year 2019 and during that time she was in relationship with the accused appellant. One day the appellant took her to Delhi and tried to marry her, but as she was under aged, the Kazi refused to perform their marriage. However, the accused forcibly established physical relationship with her when she was only 16 years of age. She stayed with the appellant for about 6/7 months and thereafter, they returned to Barpeta. Her father then lodged the FIR after hearing the incident from her. During investigation, the Magistrate recorded her statement wherein she put her thumb impression. In her cross-examination she deposed that after coming Barpeta she stayed with the appellant at Ananda Bazar for about 4 months and thereafter, only she returned back to her father’s place. She denied when suggested that she deposed falsely before the Court at the instance of her father. Page No.# 8/13 24. PW-3 is the mother of the victim and she also narrated the same story corroborating the statement of PW-1 alleging that the appellant took her daughter to Delhi and after 7 months, when her daughter returned back, her husband lodged the FIR. She further stated that after 7 months, when the appellant brought her daughter back to his village, he forcibly solemnized the marriage with her without their consent. In her cross-examination, she stated that her daughter was 19 years of age at the time of her deposition and denied when suggested that her daughter was major at the time of her marriage. 25. PW-4 is an independent witness, who does not know much about the incident. Further, he heard that the incident took place about 3 years ago when the daughter of the informant was found missing from her house and the FIR was lodged accordingly. As per him after about one year, the victim returned to her father’s house. 26. PW-5 is the Doctor who medically examined the victim on 09.05.2019 and accordingly she opined that sign of sexual intercourse is available but it was not recent. No injury mark found on the body of the victim and the age of the victim is stated to be above 16 years and below 18 years at the time of her examination. 27. PW-6 is the I.O. of the case, who conducted the investigation on receipt of the FIR. He stated that after registration of the case at Barpeta Police Station, he was endorsed with the case, which was registered under Sections 365/376 IPC, read with Section 8 of the POCSO Act. During investigation, he recorded the statement of the informant/victim and also recorded the statements of other witnesses. The appellant was arrested and produced before the Court and the Page No.# 9/13 statement of the victim was also recorded under Section 164 CrPC. The victim was sent for medical examination and after collecting the medical report etc., the charge sheet was accordingly submitted. Further he stated in his evidence that he could not collect the birth certificate of the victim and hence, he made a prayer before the medical authority to ascertain the age of the victim. After completion of the investigation, he filed charge sheet against the accused appellant under Section 365/376 IPC, read with Section 4 of the POCSO Act. From his cross-examination, it reveals that the informant had lodged the Ejahar after 7 months of the occurrence. The appellant also took the victim to Delhi and stayed there for about 7 months. It also reveals from his cross evidence that though in the sketch map some of the persons were named as neighbour, but their statements were not recorded by him during investigation. 28. So, from the evidences of the PWs, it is seen that the entire case of the prosecution basically rests on the evidence of the victim/PW-2, who alleged that she was being sexually assaulted by the accused appellant and also took her to Delhi, wherein, he developed physical relationship with her forcibly. 29. The other PWs, i.e., PW-1, the informant/father of the victim and PW-3, the mother of the victim also supported the case of the prosecution to the extent that the accused appellant took their daughter to Delhi and kept her there in Delhi for 6/7 months and thereafter, only they returned home and the FIR was accordingly lodged. 30. So it is the case of the prosecution that the victim was a minor at the relevant time of incident, when the accused appellant allegedly took her to Delhi and married her and had sexual relationship with her forcefully. After 6/7 days the FIR was lodged, but they could not recover their daughter and after 6/7 Page No.# 10/13 months of the occurrence, when they returned to Barpeta/ home town, the FIR was lodged. But from the evidence of the victim, it reveals that she had a love relationship with the accused appellant prior to the incident and there is no allegation that she was being forcefully kidnapped and took to Delhi, rather, from the entire circumstances it can be held that she went with the accused out of love relationship to Delhi and stayed there with him for about 6/7 months. Thus, from her own evidence, it is seen that she did not try to come from Delhi or did not make any complaint to anyone while she was in Delhi with accused appellant. After 6/7 months of their stay at Delhi, both the accused appellant and the victim returned to their hometown and further it also reveals that even after returning to Barpeta, she stayed with the accused in Ananda Bazar area for another 4 months and then only she returned to her house, when the father lodged the FIR. Thus, there is no evidence that she was forcefully taken to Delhi had forceful sexual intercourse with her or confined her at Delhi for 6/7 months and after her recovery or release, she reported the entire incident to her parents. 31. Admittedly, there was a sexual relationship between them as the medical evidence also supports the same. But there is no allegation of any forceful sexual assault on her, rather, from the entire circumstances and situation, it is seen that she on her own went with the accused, stayed there for 6/7 months and thereafter, returned to their home town and again she spent another 4 months with the accused without any sort of allegation. Thus, the prosecution admittedly failed to establish that the accused had kidnapped her and had forcible sexual intercourse with her against her will. 32. As per prosecution, the victim was only 14/15 years of age at the time of the incident, however, they could not produce any relevant document, neither Page No.# 11/13 the birth certificate, nor any school certificate to prove the age of the victim at the relevant time of incident. The I.O. accordingly made a prayer before the M.O. for determining her radiological age as there is no age proof certificate to prove the minor age of the victim at the time of the incident. To prove a case under the POCSO Act, the most important and relevant factor is to prove the age of the victim and he/she should be a minor at the time of the incident. But in the instant case, it is seen that there is no age proof certificate of the victim though it is stated that she was a minor girl at the time of the incident. As stated above, as per the medical/radiological age, the victim was above 16 years and below 18 years of age at the time of her examination. 33. It is a settled principle of law that in absence of any birth certificate, school certificate or matriculation certificate etc., one has to take resort of the medical evidence or radiological age of the victim or the accused, as the case may be. 34. In the instant case also, as discussed above, due to absence of any relevant document to prove the age of the victim, the I.O. made a prayer for determination of the radiological age of the victim, which accordingly stated that the girl was above 16 years and below 18 years of age at the time of her examination. 35. But it is well settled that ossification test or the medical evidence cannot be considered as a conclusive proof of age and leaves a margin of error of 2 years on either side and at the same time, it also a settled principle of law that in such a case, the age of victim always goes in favour of the accused. Thus, in the present case also as the radiological age of the victim is assessed as 16-18 years, considering the margin of error of age of 2 years or even error 1 year, in that case also the benefit goes to the accused appellant and the victim may be Page No.# 12/13 considered as a major at the relevant time of the incident. 36. In the instant case also the prosecution could not prove the exact or conclusive age of the victim at the time of the incident to consider her as a minor at the time of the incident. 37. It is also a well settled principle that the consent of the minor cannot be considered as a legal consent. But in the instant case, it is seen that the age of the victim could not be proved by the prosecution at the relevant time of the incident and at the same time, it is also seen that she went to Delhi with the accused appellant, stayed there for 6/7 months and even after returning back from Delhi to their hometown at Barpeta, she again stayed with the accused for another 4 months as husband and wife and thereafter, only she returned to her house and the FIR was lodged accordingly. 38. Thus, considering the entire facts and circumstances of the case, it is seen that the prosecution could not prove that she was forcefully taken to Delhi, kept there confined for 6/7 months, forcible sexual intercourse with her and at the same time also could not establish that she was a minor at the time of the incident. 39. So, considering the detail discussion made above, it is held that the prosecution could not prove the charge leveled against the accused appellant beyond all reasonable doubt and accordingly, the impugned judgment and order dated 29-02-2024, passed by the learned Additional Session Judge-cum-Special Judge (POCSO), Barpeta in Special (POCSO) Case No. 142/2019, is hereby set aside and quashed. 40. The appeal is allowed and the accused appellant is acquitted and set at liberty forthwith, if he is not required in connection with any other case. Page No.# 13/13 41. The jail authority be informed accordingly for doing the needful. 42. Send down the Trial Court Record forthwith. JUDGE Comparing Assistant Rupam Das Digitally signed by Rupam Das Date: 2026.09.22 12:18:47 +05'30'