[Cites 11, Cited by 0]
Gauhati High Court
Page No.# 1/ vs The State Of Assam And Anr on 18 February, 2026
Page No.# 1/10
GAHC010226572022
2026:GAU-AS:2469
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Linked Case : Crl.A./294/2022
ASHIK UDDIN
S/O LATE TUTA MIA
R/O GUMRAH PAIKAN
P.S.- KALAIN
DIST.- CACHAR
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P.
ASSAM.
2:SIRAJ UDDIN
S/O LATE ARFAN ALI
R/O GOMRAH PAIKAN
P.S.- KATIGORAH
DIST.- CACHAR
ASSAM
PIN- 788805.
------------
Advocate for the Appellant : Mr. P. Kakoti,
Ms. N. Kashyap
Advocate for the respondent(s) : Mr. D.P. Goswami, Addl. P.P.
Ms. M. Acharyya, R/No. 2
Date on which judgment is : NA
reserved.
Date of pronouncement of : 18.02.2026.
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Judgment.
Whether the pronouncement : NA
is of the operative part of the
judgment?
Whether the full judgment : Yes
has been pronounced?
BEFORE
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
JUDGMENT & ORDER (ORAL)
Date : 18-02-2026
Heard Mr. P. Kakoti, learned Sr. counsel assisted by Ms. N. Kashyap,
learned counsel for the appellant. Also heard Mr. D.P. Goswami, learned Addl.
P.P. appearing for the State and Ms. M. Acharyya, learned counsel appearing for
the respondent No.2.
2. This criminal appeal has been preferred under section 374 of Cr.P.C against
the impugned judgement dated 05.09.2022 passed by the learned Special Judge
(POCSO), Cachar, Silchar in Special (POCSO) Case No. 22/2019 convicting the
appellant under section 376 of IPC and under section 4 of POCSO Act.
3. The appeal was admitted for hearing on 23.11.2022. The appellant had
suffered detention of 59 days during the trial period and he has remained in
custody ever since the judgment which has been assailed in this appeal was
passed i.e. from 05.09.2022. The appeal was filed on 09.11.2022. The LCR have
been received and perused. The matter was extensively heard on 17.02.2026
and today the matter is taken up for disposal in the presence of all the
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counsels.
4. The prosecution case as reflected from the judgement of the learned Trial
Court is that on 25.06.2018 at about 2:00 P.M a minor daughter of the
informant had come out of the house to attend nature's call and the accused
along with his mother and two brothers gagging her mouth and kidnapped her
and forcibly took her by a boat to Khelma Part-VIII and confined her in the
house of one Ainul Uddin. When the informant tried to bring his minor daughter
back, the accused had abused him and threatened to kill him and accordingly,
an FIR was lodged with the In-charge of Gumrah PIC. The In-charge Gumrah
PIC forwarded the same to the Officer-in-Charge of Katigorah Police Station who
on receipt of the FIR registered Katigorah P.S Case No. 468/2018 u/s
120(B)/366(A)/294/506 of IPC and arranged for the matter investigated into. On
completion of the investigation the charge-sheet has been submitted against the
accused/petitioner herein, the other accused persons in the FIR were not sent
up for trial. During the course of the trial, the 8 prosecution witnesses were
examined and the accused was examined under section 313 of Cr.PC and his
statement was recorded. The plea of the defence witnesses was of total denial.
The defence declined to adduce evidence.
5. Upon his argument of the impugned judgment, the learned counsel for the
appellant has submitted that the age of the alleged victim in the present case
has not been ascertained in any manner known to law.
6. The learned counsel for the appellant has submitted that for a person to be
held liable for committing acts punishable under the POCSO Act, the alleged
victim has to be a minor as defined in the Act itself. To this effect he has drawn
our attention to the provision of POCSO Act as to a child where, at section-2(d),
a child has been defined to be any person below the age of 18 years. The
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learned counsel for the appellant has submitted that there is no substantial
evidence to support the stand of the prosecution that the alleged victim was a
child at the time of occurrence of the incident. Moreover, all other evidence led
would not be enough to impose an order of conviction and sentence under the
provision of the POCSO Act. He has submitted that the appellant has been
convicted of committing offences which are made punishable under the section-
4 of the POCSO Act and therefore, in the very absence of proof, the appeal of
the present appellant deserves to be considered positively and the impugned
judgment & order dated 05.09.2022 deserves to be set aside and the sentence
imposed upon the appellant requires the interference of this Court.
7. The learned Counsel for the appellant has placed reliance in the case of
Tomaso Bruno & Another -versus- State of Uttar Pradesh, reported in
(2015) 7 SCC 178, to impress upon this Court that when a party in possession
of best evidence which will throw light in controversy withholds it, the Court
would require to draw an adverse inference against the said party
notwithstanding that the onus of proving does not lie on him. In the present
case, it is submitted by the learned counsel for the appellant that the best
evidence to prove age of the appellant is either of the school certificate or the
birth certificate and in the present case it is not in dispute that a birth certificate
was allegedly seized by the Investigating Authority at the time of the
investigation but not brought before the learned Trial Court. In such
circumstances, the learned counsel for the appellant has further submitted that
the alleged victim had in her own statement admitted the fact that she was a
student of particular school where she had read upto Class-8 and thereafter had
left the school.
8. The learned counsel for the appellant has submitted that when the school
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record were within the knowledge of the Investigating Authority as was the birth
certificate which was seized by the Investigating Authority but not put up during
the trial as evidence by the prosecuting authority, the inference has to be drawn
that the aforesaid certificate would not be conducive for the prosecution and
therefore, such vital evidence would be fatal to the case of the prosecution.
9. Drawing the attention of this Court to the evidence led by the Medical
Officer who had examined the alleged victim, the learned counsel for the
appellant has submitted that although the said Officer had, in his examination-
in-chief, stated that the victim was aged 14 to 16 years, the said stand was not
supported in the cross-examination. Rather the aforesaid stand was demolished
by the defence. The learned counsel for the appellant has submitted that the
Medical Officer had, on the basis of ossification test carried out on the victim,
submitted that the test reveals that the alleged victim was aged between 14 to
16 years. In his cross-examination, he clearly stated that the victim was not
aged less than 14 to 16 years and was aged not beyond 20 years. By referring
to the cross-examination of the PW-6, the learned counsel for the appellant has
submitted that it was the statement of the Medical Officer that as per the chart
of Modi's Medical Jurisprudence the epiphysis of the clavicle with the sternum
appears at the age of 14 to 16 years and so as per the Modi's Medical
Jurisprudence the victim's minimum age is 14 to 16 years and as because fusion
of the clavicle with the sternum completes at 20 years, her age must be below
20 years. Therefore, the learned counsel for the appellant has submitted that
the learned Trial Court had committed a grave error when it took the statement
made with regard to the minimum age of the victim to be the correct age of the
victim and did not consider that it was actually revealed from the statement of
the witnesses that she was aged minimum 14 to 16 years but has not exceeded
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20 years of age. The learned counsel for the appellant has submitted that the
age of 18 and 19 years appears between 16 to 20 years therefore, it was wrong
on the part of the Trial Court to have presumed that the victim was a child aged
below 18 years in accordance with the definition under the provision of POCSO
Act, 2012.
10. Controverting the aforesaid submission made by the learned counsel for
the appellant, Ms. M. Acharyya, learned counsel appearing for the respondent
No. 2 had submitted that the act of the defence in not forwarding any evidence
to the effect that the alleged victim was not a minor to be included in the
definition given in the POCSO Act itself is evidence that his such argument
cannot be allowed to be taken up at this stage of appeal.
11. The learned Counsel for the respondent No. 2 has further submitted that
the Medical Officer in his statement has made clear admission to the fact that
the alleged victim was aged between 14 to 16 years and therefore, no infirmity
in the order of conviction and the sentence imposed upon the appellant.
12. The learned Addl. P.P has submitted that the offence proved against the
appellant herein is grievous and does not need further consideration. The
learned Addl. P.P has further submitted that perusal of the learned Trial Court
record would show that the appellant had been given enough and more
opportunity for his defence and having failed to defend himself properly before
the Trial Court, the appellant has been put to suffer the conviction and
sentence. He has also submitted that even if it is held that the victim was the
consenting party, the learned Trial Court has dealt with the aspect in the matter
by referring to different judgments and therefore, even on that count the
conviction and sentence passed against the appellant does not deserve any
interference of this Court.
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13. This Court has heard the learned counsel appearing for the contesting
parties and perused the TCR. What strikes at the initial stage is the argument of
the learned counsel for the appellant that it was never proved in a manner
known to law that the alleged victim would be a child as defined under the
POCSO Act.
14. PW-2 who was the informant of the case had made a clear statement
during his deposition that the Police took the birth certificate of the daughter
and returned the original copy after keeping the photocopy of the same. This
fact does not find contradiction during cross-examination, nor is any explanation
given by the prosecuting authority for not producing the birth certificate
photocopy of which was alleged to have been given to the Investigation
Authority. The learned Trial Court at paragraph-47 of the judgment observed
that though as per the evidence of PW-2/informant, the birth certificate of the
victim was seized, the case record reveals that neither seizure list is there in
respect of seizure of the birth certificate nor the I.O/PW-8 has in his evidence
said anything regarding the seizure. Therefore, the Trial Court, in the opinion of
this Court, had proceeded to erroneously assume that the birth certificate of the
victim girl had not been seized by the Police during investigation.
15. Be that as it may, when there is a specific reference to the birth certificate,
this Court is of the opinion that it would be prudent on the part of the learned
Trial Court to have asked the PW-2, who had himself stated to be in possession
of the birth certificate, to produce the same for determination of the age of the
victim girl since the determination of the age of the victim is the first and the
foremost requirement in a case where the accused is being tried for the
offences described in the POCSO Act, 2012. Without delving much on that issue,
this Court finds that in the evidence of the PW-1, the alleged victim has stated
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that she had read upto Class-8, therefore, this fact cannot be denied to be
within the knowledge of the Trial Court that the victim girl was a student at that
particular school and therefore, again it would be prudent by this Court to have
called for the certificate from the school authority to determine the recorded
age of the alleged victim. The Hon'ble Supreme Court in case of P.
Yuvaprakash -Versus- State, reported in (2023) AIR SC 3525, the Apex
Court has held as follows;
"13. It is evident from conjoint reading of the above provisions that
wherever the dispute with respect to the age of a person arises in the
context of her or him being a victim under the POCSO Act, the courts
have to take recourse to the steps indicated in Section 94 of the JJ Act.
The three documents in order of which the Juvenile Justice Act requires
consideration is that the concerned court has to determine the age by
considering the following documents:
"(i) the date of birth certificate from the school, or the matriculation
or equivalent certificate from the concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the
Board".
16. In the case of Sri Utpal Debnath -Versus- The State of Assam and
Ors, reported in 2023 (3) GLT 816, this Court had held that when the mother of
the victim had specifically stated that as on date of occurrence the victim was
studying in Class-11 from a particular school, the best document by which the
age of the victim is to be proved is the school leaving certificate of the victim.
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On the similar circumstances where the age of the alleged victim was an issue
to be decided in the criminal appeal, this Court in Criminal Appeal No. 4/2024
(Aizawl Bench) disposed on 11.12.2025 has held that when the school leaving
certificate or the birth certificate of the alleged victim, both of which were not
made available before the learned Trial Court, the reliance placed upon the
evidence of the Medical Officer would lose all importance. In the present case, it
is further noticed that in the cross-examination, the Medical Officer had stated
that the age of the victim would be minimum 14 to 16 years but not beyond 20
years. In such circumstances, nothing was brought in during the Trial for the
Trial Court to have assumed that the victim was a minor girl. There are no
reasons forthcoming from the prosecution for not relying on the school leaving
certificate of the victim when she allegedly studied in the school or to explain
the absence of any birth certificate issued by the competent authority when the
father of the victim had specifically stated that he was in possession of such
birth certificate.
17. This Court thus, is of the opinion that the prosecution had utterly failed to
prove the evidence that the victim was a child on the day of incident.
18. This Court is also of the considered opinion that the accused in the present
case is entitled to benefit of doubt. Having said so, this Court holds that the
prosecution side had failed to bring home the charges under section 4 of the
POCSO Act beyond reasonable doubt and the accused/appellant is entitled to
benefit of doubt. The conviction and the sentence as reflected in the order
dated 05.09.2022 passed by the learned Special Judge (POCSO), Cachar, Silchar
in Special (POCSO) Case No. 22/2019 deserve the interference of this Court and
are accordingly set aside and quashed.
19. The accused/appellant Ashik Uddin, aged about 21 years, S/o Late Tuta
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Mia, R/o Gumrah Paikan, P.S Kalain, District-Cachar, Assam is directed to be set
at liberty forthwith unless he is required in connection with any other case.
20. The LCR requisitioned by this Court be sent back forthwith.
21. The criminal appeal stands disposed of.
22. The Registry is directed to issue necessary release order(s) in connection
with this criminal appeal.
JUDGE
Comparing Assistant
