Page No.# 1/6 GAHC010053972025 2026:GAU-AS:5856- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./389/2025 AMINUL ALI S/O - MD KERAMAT ALI R/O- HAJBHAWAN NAGAR, P/S - JALUKBARI, KAMRUP (M) , ASSAM PIN - 781014 VERSUS THE STATE OF ASSAM REPRESENTED BY P P ASSAM 2:MAYA BAISHYA W/O - LATE JIT BAISHYA VILL- AZARA KALITAPARA P/S AND P/O- AZARA DIST - KAMRUP(M) ASSAM PIN - 78101 Advocate for the Petitioner : MR SAIDUL ISLAM, MS J MARIYAM,MS. A KAUSHAR,MR S ISLAM Advocate for the Respondent : PP, ASSAM, Linked Case : I.A.(Crl.)/1119/2025 Page No.# 2/6 MD AMINUL ALI S/O - MD KERAMAT ALI R/O- HAJBHAWAN NAGAR P/S - JALUKBARI KAMRUP (M) ASSAM PIN - 781014 VERSUS THE STATE OF ASSAM REPRESENTED BY P P ASSAM 2:MAYA BAISHYA W/O - LATE JIT BAISHYA VILL- AZARA KALITAPARA P/S AND P/O- AZARA DIST - KAMRUP(M) ASSAM PIN - 781017 ------------ Advocate for : MR SAIDUL ISLAM Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 28/04/2026 (Michael Zothankhuma, J) 1. Heard Mr. S. Islam, Learned Council for the appellant/applicant. Also heard Ms. A. Begum, Learned APP, Assam, appearing for the State. No one appears for the respondent no. 2. This Court, vide orders dated 07/01/2026 and 30/03/2026, had recorded the fact that notice had been served upon the respondent no. 2. 2. This is an appeal against the conviction of the appellant under section 4 of Page No.# 3/6 the POCSO Act, by the Court of the Additional Sessions Judge- cum-Special Judge (POCSO), Kamrup (Metro), Guwahati, in Sessions (Special) Case No. 268/2023, arising out of Azara PS case No. 217/2023, vide the impugned judgement and order dated 12/12/2024 and the sentence order dated 17/12/2024. 3. The appellant's counsel submits that the victim was an adult at the time the appellant and the victim had sexual relations. As such, the learned Trial Court erred in convicting the appellant under section 4 of the POCSO Act. He submits that the learned Trial Court had convicted the appellant by coming to a finding that the victim was below 16 years of age, at the time the parties engaged in sexual intercourse, on the basis of the dental examination conducted upon the victim by the Medical Officer (PW-6). However, PW-6 in his evidence had clearly stated that she had not conducted any investigation, to determine the victim's age. 4. The appellant's counsel submits that the School certificate of the victim showed the victim to be born on 06/05/2006, while the incident had apparently occurred on 10/03/2022. However, the contents of the School Certificate not having been proved by the author of the School Certificate and in the absence of any corroboration of the School Certificate by way of production of the original School Register, the learned Court had committed an error in coming to a finding that the victim was 16 years of age at the time the appellant had sex with the victim. 5. Ms. A. Begum, leaned APP, submits that she has got no quarrel with the submission made by the appellant's counsel, inasmuch as, the Medical Officer ( PW-6) in her cross examination, has clearly stated that she did not conduct any investigation to determine the victim's age. Further, the author of the School Certificate stating the victim's age, had not been made a witness in the case, besides the School Register not having been produced by the prosecution during trial. 6. We have heard the learned counsels for the parties. Page No.# 4/6 7. A perusal of the case record and the impugned judgment shows that the appellant and the victim had consensual sex, which apparently first occurred on 10/03/2022. Assuming that the date of birth of the victim in the School Certificate showing the victim's date of birth to be May 6, 2006 is correct, the victim would have been less than 16 years on 10/03/2022. 8. Though the learned trial court had come to a finding that no challenge had been made by the appellant to the School Certificate issued to the victim, we find the said finding to be incorrect, in view of the fact that the PW-1, who is the mother of the victim, in her cross examination has stated “it is not true that the date of birth stated on my daughter's School Certificate is not her actual date of birth”. 9. The above evidence of PW-1 clearly goes to show that a suggestion had been made by the appellant that the victim was not a minor at the time the incident had occurred. The other finding of the learned Trial Court is that the victim would have been a major in view of the report made by the Medical Officer (PW-6), wherein it was proved that the victim had undergone a dental examination and there was adequate space on the upper jaw, where the third molar was not found. The learned Trial Court had come to a finding that the 3rd molar, according to medical science, erupts between the age of 17 and 19. As the victim lacked the 3rd molar, the learned Trial Court held that the same supported the claim of the victim and her family that the victim was a minor. 10. With regard to the above finding made by the learned Trial Court in relation to the examination of the victim by the Medical Officer (PW-6), we find that clause 13 of the medical report pertaining to dental examination, shows that no specific finding had been made by the Medical Officer with regard to the age of the victim, pursuant to the space that existed where the 3rd molar was to grow. In any event, the observation of the learned Trial Court that the 3rd molar erupts between the age of 17 to 19 does not Page No.# 5/6 prove in any manner that the victim was below 16 years at the time of the incident. The 3rd molar could be absent even at the age of 17. The above does not prove that the victim was below 16 years of age, for which section 4 of the POCSO Act would be attracted. 11. In view of the above reasons, we find that the prosecution has not proved beyond all reasonable doubt that the victim was below 16 years of age at the time of the incident, wherein consensual sex had taken place between the appellant and the victim. 12. The exhibit of the School Certificate cannot mean that the contents of the said School Certificate has been proved, when the appellant has taken a stand contrary to the contents of the School Certificate. In such a scenario, it was incumbent upon the prosecution to prove the contents of the School Certificate, by producing the author of the School Certificate to prove the contents of the same and / or by producing the School Register, on the basis of which the School Certificate had been issued. 13. As the liberty of the appellant is at stake and the minimum punishment for the alleged crime in question, pertains to a long period of imprisonment, we are of the view that it was incumbent upon the prosecution to prove beyond all reasonable doubt, the age of the victim at the time of the incident. The same would require adducing evidence and also by giving an opportunity to the appellant to rebut any additional evidence to be produced by the prosecution, for proving the age of the victim at the time of the incident. 14. In view of the reasons stated above, we remand the matter back to the learned Trial Court, to take a decision with regard to the age of the victim at the relevant point of time, by giving opportunity to the prosecution to produce additional evidence to prove the contents of the School Certificate. If the same is not possible, the learned Trial Court can also take recourse to section 94 of the Juvenile Justice Page No.# 6/6 (Care and Protection of Children) Act, 2015. 15. Consequently, the impugned judgement and order dated 12/12/2024 and the sentence order dated 17/12/2024 passed by the Court of the learned Additional Sessions Judge- cum-Special Judge (POCSO), Kamrup (Metro), Guwahati, in Sessions (Special) Case No. 268/2023 is hereby set aside. The trial of the case should commence by the learned Trial Court, from the stage of giving opportunity to the prosecution to prove the School Certificate by producing additional witness/evidence or in the alternative, to determine the age of the victim by resorting to the other provisions of section 94 of the 2015 Act. 16. With regard to the prayer of the appellant for grant of bail during trial before the learned Trial Court, we are of the view that the appellant should approach the learned Trial Court for bail. The learned Trial Court, while considering the case of the appellant for bail, should consider the age of the appellant and his antecedents. It is also made clear that the bail application, if submitted, should be disposed of at the earliest possible opportunity by the learned Trial Court. 17. The appeal and the I.A. are accordingly disposed of. 18. Send back the TCR. JUDGE JUDGE Comparing Assistant