Page No.# 1/7 GAHC010265082022 2026:GAU-AS:5704 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./6/2023 DIGANTA DAS S/O SRI DHARESWAR DAS, RESIDENT OF VILLAGE BIHDIA, PS NALBARI, PO KARIA, 781339, DIST NALBARI, ASSAM VERSUS THE STATE OF ASSAM AND ANR . REPRESENTED BY PP ASSAM 2:VICTIM D/O SRI PRAHLAD DAS RESIDENT OF VILLAGE NALBAI PS NALBARI PO KARIA 781339 DIST NALBARI ASSA Advocate for the Petitioner : MR. P K DAS, MR. A GANGULY,MR. A DUTTA,MR. A DHANUKA,MS. P BHUYAN,MR. M PATHAK Advocate for the Respondent : PP, ASSAM, Linked Case : I.A.(Crl.)/573/2025 DIGANTA DAS S/O SRI DHARESWAR DAS RESIDENT OF VILLAGE BIHDIA PS NALBARI PO KARIA 781339 DIST NALBARI ASSAM Page No.# 2/7 VERSUS THE STATE OF ASSAM REP. BY PP ASSAM 2:RAHILA DAS W/O SRI PRAHLAD DAS RESIDENT OF VILLAGE BIHDIA PS NALBARI PO KARIA 781339 DIST NALBARI ASSAM ------------ Advocate for : MR. A DUTTA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 27/04/2026 (Michael Zothankhuma, J) 1. Heard Mr. A. Ganguly, learned counsel for the appellant. Also heard Ms. A. Begum, learned Addl. P.P., Assam for the State. 2. This appeal is against the impugned Judgment dated 11.11.2022, passed by the learned Special Judge (POCSO), Nalbari in Special (P) Case No. 15/2020, by which the appellant has been convicted under Section 6 of the POCSO Act and sentenced to undergo simple imprisonment for 20 years, with a fine of Rs.30,000/, in default, to undergo simple imprisonment for 6 months. 3. The facts of the case, in brief, is that the informant, who is the mother of Page No.# 3/7 the victim, submitted an FIR dated 23.04.2020 to the In-charge, Kamarkuchi Police Outpost, stating that during her absence from house, the appellant had established physical relationship with her daughter for six days, starting from October, 2019, due to which her daughter became pregnant. She questioned her daughter about it on 22.04.2020, whereupon she blurted out that she had sex with the appellant. Pursuant to the FIR, Kamarkuchi Police Outpost, G.D.E. No. 388, dated 23.04.2020 was registered and the same was forwarded to the Officer-in-Charge of Nalbari P.S. for registering a case. The Nalbari P.S. thereafter registered Nalbari P.S. Case No.229/2020 under Section 376(2)(i) of IPC, read with Section 4 of the POCSO Act. 4. After the investigation was completed, the Investigating Officer submitted a charge-sheet, on finding a prima facie case established against the appellant under Section 376(2)(i) of IPC, read with Section 4 of the POCSO Act. The learned Trial Court thereafter framed two charges under Section 376 of IPC and Section 6 of the POCSO Act against the appellant, to which he pleaded not guilty and claimed to be tried. 5. The learned Trial Court thereafter examined 8(eight) Prosecution Witnesses and after examining the appellant under section 313 Cr.P.C., the learned Trial Court convicted the appellant under Section 6 of the POCSO Act and in view of Section 42 of the POCSO Act, the appellant was sentenced under Section 6 of the POCSO Act. 6. The learned counsel for the appellant, at the outset, submits that, as has been recorded by the learned Trial Court in the impugned judgement, there is no dispute with regard to the fact that the appellant had sexual relation with the victim, inasmuch as, they were having a love affair and the sexual intercourse between them was consensual in nature. He however submits that the prosecution has however failed to prove that the victim was below 18 years of age. In this regard, the learned Page No.# 4/7 counsel for the appellant has taken us through the copy of the birth certificate of the victim, which shows her date of birth, according to the school admission register, to be 10.04.2006. He submits that as the author of the birth certificate, i.e., the Head Teacher of the school had not been produced in Court to prove the contents of the birth certificate, besides, the admission register of the school not having been produced in the Court, the contents of the birth certificate could not be said to have been proved. As such, it could not be said that the victim was below 18 years of age at the time the incident occurred. 7. The learned counsel for the appellant further submits that though the Doctor, who had examined the victim, had stated in his evidence that as per the X-ray report of the victim, the victim was between the age of 14 years and 16 years, the age of the victim could not be said to have been proved, as the X-ray report and related available reports with regard to the age of the victim had not been produced in the Court. He accordingly submits that when there is no proof that the victim was a minor at the time the incident had occurred and as the sexual affair between them was consensual in nature, there cannot be any conviction of the appellant, either under the POCSO Act or the IPC. He accordingly submits that the impugned judgment should be set aside and the appellant should be acquitted of the charge. 8. On the other hand, the learned Addl. P.P. submits that the sexual relationship between the parties was made due to the parties being in love with one another. Further, a child has been born out of the said relationship. However, as the victim was a minor, no consent could have been given by the minor to have a consensual sexual relationship with the appellant. The learned Addl. P.P. further submits that the birth certificate of the victim, issued by the school in question, was proof enough that the victim was a minor girl and the veracity of the school certificate had never been put to question by the appellant during trial. She also submits that the Page No.# 5/7 evidence of the Doctor (PW-3) is to the effect that the X-ray examination of the victim showed that she was above 14 years of age and below 16 years and that the Skiagram No.D6154 dated 24.04.2020 proved the same. She submits that when there is no challenge made to the contents of the medical examination report dated 24.04.2020, showing the victim's age to be between 14 and 16 years, the appellant could not challenge the age of the victim written in the Medical report, which was made on the basis of the X-ray report under Skiagram No.D6154 dated 24.04.2020. She also submits that the evidence of the mother (PW-1) of the victim proved that the victim was 14 years at the time the incident occurred and as such, when there was no question to the contrary put to the prosecution witnesses that the victim was a major, there was no infirmity with the learned Trial Court convicting the appellant under Section 6 of the POCSO Act. 9. On considering the stand of the counsels for the parties, this Court vide order dated 06/04/2026, had directed that the Admission Register relating to the age of the victim should be called from Bihdia Adarsha L.P. School, P.O. Karia, District-Nalbari, Assam. 10. We have perused the Admission Register that has been brought by the present Head Teacher of the concerned School. We are of the view that the date of birth recorded in the said Admission Register should be examined by the learned Trial Court and an opportunity should be given to the appellant and the respondents to prove the contents in the Admission Register. This is due to the fact that though the School Certificate of the victim has been exhibited before the learned Trial Court, the author of the said School Certificate has not been examined and neither has the Admission Register been produced before the learned Trial Court. 11. A cursory look of the victim’s date of birth in the Admission Register, appears to indicate that scraping of the paper has been made wherein the date of birth of the victim Page No.# 6/7 had been recorded, which could have been done by a blade etc. Further, the entries prior to and after the date of birth of the victim, does not appear to be done by the same hand, when compared to the handwriting of the date of birth of the victim. The above observations made by us cannot have any conclusive value at this stage, unless and until the same is examined by the learned Trial Court and/or handwriting experts etc. This aspect of the matter should also be looked into by the learned Trial Court. 12. In view of the above reasons, this appeal is remanded back to the learned Trial Court, to give opportunity to the prosecution and the appellant, to examine the correctness of the entry in the School Certificate of the victim, when compared with the Admission Register brought by the Head Teacher of the said School. Further, whether the entry in the School Register can be relied upon. As such, to enable the learned Trial Court to take a fresh decision on the correctness of the victim’s date of birth, we hereby set aside the impugned judgement and order dated 11/11/2022 passed in Special (P) Case No. 15/2020 and direct the learned Trial Court to take a fresh decision, after giving opportunity to the parties to examine the Admission Register of the School. The prosecution shall produce the original Admission Register of the said School before the learned Trial Court as and when the trial restarts. The trial will restart from the stage of examining the Admission Register of the School. 13. In view of the reasons stated above, the impugned judgement and order stands set aside. 14. On considering the facts of the case, we are of the view that the appellant should in the meantime be released on bail. He is accordingly granted bail, on furnishing a bail bond of Rs. 50,000/- (Rupees fifty thousand) with one surety of like amount, to the satisfaction of the learned Trial Court. 15. Personal appearance of the Head Teacher of Bihdia Adarsha L.P. School, P.O. Page No.# 7/7 Karia, District-Nalbari, Assam, stands dispensed with. 16. Send back the TCR. JUDGE JUDGE Comparing Assistant