Gauhati High Court
Page No.# 1/24 vs The State Of Assam And Anr on 4 December, 2025
Page No.# 1/24
GAHC010065142021
2025:GAU-AS:16713
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./98/2021
AJIJUL ISLAM
S/O- ALA UDDIN, R/O- UTTAR LALPANI, P.S. JIRIGHAT, DIST.- CACHAR.
VERSUS
1. THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM
2:ABUL HUSSAIN
S/O- LATE SOWAB ALI
R/O- VILL.- UTTAR LAL PANI
P.S. JIRIGHAT
DIST.- CACHAR
Advocate for the Petitioner : MR. L R MAZUMDER, M J ABEDIN
Advocate for the Respondent : PP, ASSAM, MR. B U LASKAR (R-2)
Linked Case : I.A.(Crl.)/215/2021
AJIJUL ISLAM
S/O- ALA UDDIN
R/O- UTTAR LALPANI
P.S. JIRIGHAT
DIST.- CACHAR.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P.
Page No.# 2/24
ASSAM
2:ABUL HUSSAIN
S/O- LATE SOWAB ALI
R/O- VILL.- UTTAR LAL PANI
P.S. JIRIGHAT
DIST.- CACHAR.
------------
Advocate for : MR. L R MAZUMDER Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR.
Crl. Appeal No. 98 of 2021 with IA (Crl) No. 215 of 2021 Sri Ajijul Islam aged about 24 years S/o Ala Uddin R/o Uttar Lalpani P/s Jirighat, Dist-Cachar.
...APPELLANT
-VERSUS-
1. State of Assam
2. Abdul Hussain aged about 37 years S/o Late Sowab Ali R/o Vill: Uttar Lal Pani P/s-Jirighat, District-Cachar.
...RESPONDENTS Page No.# 3/24 :::BEFORE:::
HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA Advocate for the petitioner : Mr.L.R. Mazumder.
Advocate for the respondents : Mr. B.U.Laskar for R-2.
Mr. R.J. Baruah, Addl. P.P., Assam.
Date on which judgment is reserved : 18.11.2025.
Date of pronouncement of judgment : 04.12.2025.
Whether the pronouncement is of the : No.
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT & ORDER (CAV)
1. This appeal is directed against the impugned Judgment and Order dated 11.02.2021 passed by the learned Additional Session Judge (Special Judge) Cachar, Silchar in SPL (POCSO) Case No.42/2017 convicting the appellant under Section 4 of POCSO Act and sentencing him to undergo Rigorous Imprisonment for 10 (ten) years and to pay fine of Rs. 10,000/- in default to suffer Simple Imprisonment for a term of 6 (six) months and also convicted under Section 366 of IPC and Sentenced him to undergo Rigorous Imprisonment (R.I) for 7 (seven) years and also to pay fine of Rs. 7000/- (Rupees seven thousand) only in default to suffer Simple Imprisonment for a term of 3 months.
2. Prosecution case in brief is that on 10.07.2017, the informant, father of Page No.# 4/24 the victim lodged an FIR with the O/C, Jirighat P.S. stating inter alia that on 21.11.2016 at about 8.45 a.m. while the victim, who was a student of Class VIII aged about 13 years, was going to her school, the accused Ajijul Islam with the help of other FIR named accused persons kidnapped his daughter i.e. the victim girl forcibly. It is further alleged that as the victim girl did not return home they made searches and after some days during search the victim girl returned home and narrated the incident to her mother that while she was going to school on the way at Hawkip punjee area the accused Ajijul Islam and another FIR named accused Rais Ali along with other FIR named accused persons kidnapped her and kept her confined in a lonely place. It is further alleged that at the time of incident the informant was not at home.
3. Accordingly, O/C Jirighat P.S. registered Jirighat P.S. Case No. 28/2017 and he himself took up the investigation. During the course of investigation, the I.O. visited the place of occurrence, drew up a sketch map of the place of occurrence, the victim girl was recovered and he got her medically examined at SMCH, Silchar and also got her statement recorded by the Magistrate u/s 164 Cr.PC The I.O. also examined the witnesses and on completion of investigation, the I/O submitted charge sheet against the present accused person Ajijul Islam u/s 366(A) of IPC r/w Section 6 of POCSO Act.
4. The offence under Section 6 of POCSO Act being exclusively triable by the Special Court, learned SDJM(M), Lakhipur, Cachar sent the case record to the Court of the learned Special Judge, Cachar, Silchar. In due course, upon appearance of the accused and after hearing both sides the then learned Special Judge framed formal charge u/s 366 of IPC and Section 4 of POCSO Act against Page No.# 5/24 the present accused person. The charge having been read over and explained the accused pleaded not guilty and claimed to be tried.
5. The prosecution examined 7 (seven) witnesses including the victim and the informant in order to establish its case. Statement of the accused person was recorded u/s 313 Cr.PC Defence declined to adduce evidence.
6. The learned Session Court by the impugned Judgment, convicted and sentenced the accused appellant as aforesaid.
7. I have heard Mr.L.R. Mazumder, learned counsel for the appellant. Also heard Mr. B.U. Laskar, learned counsel for respondent No. 2 and Mr. R.J. Baruah, learned Additional Public Prosecutor for the State.
8. Let me first discuss the evidence on record.
9. PW-1 is the victim of this case. She deposed in her evidence that on 21.11.2016 she was reading in Class VIII in Lalpani M.E. School and that she knows the accused since her childhood being a co-villager. She further deposed that on that day at about 9.30 a.m. she came out to go to her school and on the way at Hawkip Punji, the accused coming from inside the jungle suddenly caught hold of her hand and gagged her mouth and took her to his brother's house Nazrul Islam crossing a jungle and kept her there for one night and on that night he raped her against her will. She added that on the following day he took her to his father's house and there he kept her for about three months. She further added that at that time her mother was pregnant. PW-1 also Page No.# 6/24 testified that during her stay in the house of the accused he had sexual intercourse with her every night. She further deposed that the accused used to assault her and as a result she became sick and that the accused confined her in a room. She also deposed that one day when the accused went out, taking the advantage managed to flee away and came back to her house and reported the matter to her mother. PW-1 added that at that time her mother was in an advance stage of pregnancy. She deposed that her mother informed the matter to her father who came home after 4/5 days and lodged the FIR. She further deposed that during investigation she was medically examined at SMCH, Silchar and her statement was recorded by the Magistrate. She has proved Ext.1 as her said statement wherein Ext.1(1) is her signature. PW-1 added that after the alleged incident she had to discontinue her study. She also testified that during her stay in the house of the accused a marriage was arranged by him. She added that she did not give consent to the marriage but he started to live with her as her husband.
In her cross-examination by the defence, the PW-1 stated that on the date of alleged incident she was alone on the way which passes through a jungle and that there are some houses in the nearby hillock but she cannot say the name of the residents and that prior to the incident, she had never talked with the accused. During her cross examination, it was put to PW-1 that she did not state before the I.O. that suddenly the accused coming from inside the jungle caught hold of her hand and gagged her mouth and took away inside the jungle and that the accused committed rape on every night, which she denied. She also denied the defence suggestion that she had a love affair with the accused and that she voluntarily went with the accused and stayed in his house and that Page No.# 7/24 he did not commit any sexual intercourse against her will and never tortured her. She also stated in her cross examination that her mother could not file any FIR after she went missing as she was pregnant.
10. PW-2 is the mother of the victim of this case. She deposed in her evidence that the victim is the second out of her five children whose age was 13 years at the time of her giving evidence before the court and that she knows the accused who is her co-villager. She further deposed that on the date of occurrence the victim went to school but did not return and at that time she was in the advanced stage of her pregnancy for which, through her other children, she made search for the victim and that at that time her husband was in the state of Kerala. She added that she informed the matter to him over telephone hearing which he came back and searched for the victim and could know that the victim was in the house of accused Ajijul and thereafter he lodged the FIR. PW-2 testified that after that the victim somehow managed to return home and reported to her that on the way to her school, the accused forcibly took her and kept her confined and sexually molested her. She stated that police recorded her statement.
In her cross-examination by the defence, the PW-2 stated that she cannot say the date of the alleged incident and that she through others informed the police about the missing of the victim. She also stated during her cross examination that on receipt of information from her, her husband asked her to inform the police and accordingly she informed through others. She further stated in her cross examination that about three months after the alleged incident her victim daughter returned back home and that her husband returned Page No.# 8/24 home after return of the victim and that after return of her husband police came to their house and recorded their statements. She denied the defence suggestion that the victim did not tell her that the accused took her forcibly on the way to her school and kept her confined and sexually molested her.
11. PW-3 Dr. (Mrs) Monalisa Dev is the Medical Officer. She deposed in her evidence that on 17.07.2017 on police requisition she examined the victim girl. The M.O. stated the history as narrated by the victim as "while she was going to school in the morning on 21.11.2016 one boy Azizul Islam forcefully took her to his brother's house and then next day to his house in Uttar Lalpani and stayed there for three months and forcefully married her and then made her stay in his house forcefully and had sexual intercourse and then after three months one day she somehow escaped and went to her father's house and then her father filed the case." PW-3 on the basis of physical including dental examination, laboratory and radiological investigation done on the victim gave the opinion that 1) Age of the individual is above 14 and below 16 years, 2) Evidence of recent sexual intercourse not detected as on date of examination, 3) Injury marks not detected on her person and or genitals except old hymenal tears as on date of examination and 4) The individual does not carry pregnancy as on date of examination. She has proved Ext. 2 as her report wherein Ext. 2(1) and Ext. 2(2) are her signatures and Ext. 2(3) is the signature of Dr. Y.N. Singha, Associate Professor I/C, Dept. of FSM, SMCH, In her cross-examination by the defence, the PW-3 stated that in column No.39 she mentioned healthy with an arrow mark. She denled the defence suggestion that her opinion with regard to the age is not correct and that the Page No.# 9/24 examination is not done properly and that the age of the victim was above 18 years at the relevant time.
12. PW-4 Nijam Uddin deposed in his evidence that he knows both the accused and the informant and that at the relevant time of occurrence he was Secretary of the Masjid Committee. He further deposed that on the following day of the incident one of the daughters of the informant came to him and reported that the victim had been missing and also reported that they heard that accused Ajijul kidnapped the victim while she was going towards her school. He added that thereafter he went to the house of the accused and met his father and also the accused. He deposed that he also found the victim in the house of the accused and that he wanted to settle the matter amicably but they refused. He testified that later on he heard that after about one month of the said incident the victim girl came to the house of her father. He further deposed that at the time of the incident the informant was at Kerala and after coming from Kerala he took steps to recover the victim.
In his cross-examination by the defence, the PW-4 stated that after knowing about the incident he did not report the matter to the police. It was put to PW-4 that he did not state to police that on the following day of the incident he went to the house of the accused and found Ajijul and his father and some other persons and also found the victim in the house, which he denied.
13. PW-5 Ain Uddin deposed in his evidence that he knows both the accused and the informant who are his co-villagers. He further deposed that in the last part of 2016 the alleged incident took place and at the relevant time of Page No.# 10/24 occurrence he was the President of Maszid Committee. He deposed that one day the daughter of the informant came and told him to go to their house immediately. He added that accordingly he went to the house of the informant and wife of the informant reported him that her daughter who was reading in Class VIII had been taken away by the accused Ajijul while she was going to the school. PW-5 added that then he went to the house of the accused and found few persons sitting there and that on the said date the father of the victim was in Kerala. He also deposed that he discussed the matter with the father of the accused and also requested him to take step for return of the victim but he did not agree. PW-5 testified that later on the informant came and lodged the FIR and that the victim girl managed to escape from the house of the accused.
In his cross-examination by the defence, the PW-5 stated that the informant came to his house from Kerala after about 7 months of the incident and that he did not inform the police about the incident. It was put to PW-5 that he did not state to police that the victim managed to escape from the house of the accused, which he denied.
14. PW-6 is the informant and the father of the victim. He deposed in his evidence that he knows the accused Ajijul Islam and that the occurrence took place on 21.11.2016 and at that time he was at Kerala. He further deposed that the victim was aged 13 years at the relevant time and was reading in Class VIII. He also deposed that one day while the victim was going to school then accused Ajijul kidnapped her and took her to his house. He added that he was informed about the incident by his wife and that at that time his wife was at her advance stage of her pregnancy. He further deposed that about two and half months Page No.# 11/24 after the incident he came to his house from Kerala and lodged the FIR with the police. He has proved Ext.3 as the FIR wherein Ext.3(1) is his signature. He deposed that when he returned home he found the victim in the house and that the victim reported him that she managed to escape from the house of the accused. PW-6 added that the victim also reported to him that she was kidnapped by accused Ajijul and committed rape on her against her will. He further deposed that his wife also reported to him that the accused kidnapped the victim girl and committed rape on her in his house against her will. He stated that police recorded his statement.
In his cross-examination by the defence, the PW-6 stated that he studied up to Class V and that the FIR was written at Jirighat P.S. on 10.07.2017 and that on 21.11.2016 the accused kidnapped his daughter and that prior to lodging the FIR he did not inform the matter to Jirighat police through his family members or others. He denied the defence suggestion that the accused did not kidnap his daughter and that also did not sexually abuse her.
15. PW-7, Sanjeeb Kumar Das is the Investigating Police Officer. He deposed in his evidence that on 10.07.2017 while he was posted at Jirighat P.S. he received a written ejahar from the informant and registered the same as Jirighat P.S. Case No.28/2017 and started investigation of the case. During the course of investigation, he visited the place of occurrence, drew up a sketch map, and sent the victim for her medical examination and also produced her before the Magistrate for recording her statement u/s 164 CrPC. He has proved Ext. 4 as the sketch map wherein Ext. 4(1) is his signature. The I.O also recorded the statement of the available witnesses including the victim. Thereafter, on Page No.# 12/24 completion of investigation he submitted charge sheet against the accused Ajijul Islam u/s 366(A) of IPC read with Section 6 of POCSO Act. He has proved Ext.5 as the charge sheet wherein Ext.5(1) is his signature.
In his cross-examination by the defence, the PW-7 stated that as per FIR received from the informant date of occurrence is 21.11.2016 but in the FIR no note was found for delay of filing this case and that he has not received any telephonic information regarding this case from the parents of the victim girl. He further stated in his cross-examination by the defence that during investigation he did not seize any cloth of the victim and any Kabinnama and that he did not seize any school certificate or birth certificate of the victim girl.
16. PW-7 in his cross-examination further stated that PW-1 i.e. the victim did not state before him that on the day of occurrence suddenly the accused came from inside the jungle and caught hold of her hand and gagged her mouth and took away inside the jungle and that the accused committed rape on every night and that the accused assaulted her. PW-7 also stated in his cross-examination that PW-2 did not state to him that she searched for her daughter through her children or about the keeping of victim as confined. PW-7 further stated in his cross-examination that PW-4 did not state before him that on the following day of incident he went to the house of the accused and found accused Ajijul and his father and some other persons and also found the victim in the house. PW-7 also stated in his cross-examination that PW-5 did not state to him that the victim managed to escape from the house of the accused. PW-7 denied the defence suggestion that the instant case does not attract the provision of section 6 of POCSO Act.
Page No.# 13/24
17. What is to be noticed at the outset is that from the material available on record the informant family and the accused family are both residents of the same village, i.e. Uttar, Lalpani. As per the version of the PW1/victim, the accused caught hold of her hand and gagged her mouth and took her to his brother's house namely, Nazrul Islam by crossing a jungle. A perusal of the sketch map shows that the I.O. has pinpointed the place from where the alleged kidnapping took place i.e. the road linking Uttar Lalpani village and Hawkip Punji which is at a distance of two kilometres West from Jirigat PS.
18. To the north of the said road, a jungle has been shown but the I.O. apparently did not visit the house of the brother of the accused where the victim was first taken and also spent a night there. There is no evidence with regard to the distance that would have to be covered by the accused while forcefully taking away the victim across a jungle. This is a lapse in the investigation which cannot be ignored.
19. Thereafter, the victim states that on the next day the accused took her to his father's house which as already stated is located in the same village, that is Uttar Lalpani as that of the victim and kept her there for three long months. The victim does not state whether during this return journey also she was gagged and taken forcefully. PW2, the mother of the victim, in her examination in chief, deposed that she was in an advanced stage of pregnancy and through her other children she made search of the victim and also informed her husband who was working in Kerala over telephone.
During cross-examination, she stated that she had good relation with the Page No.# 14/24 neighbouring people and she through others informed the police about the missing of the victim. She did not have any personal mobile and there is no other mobile in her house except that of her husband, who as already stated was in Kerala at that point of time. Her husband asked her to inform the police and accordingly, she informed the police through others.
20. However, from the deposition of the I.O, it appears that the Police was informed of the occurrence by way of an FIR lodged on 10.07.2017, that is nearly eight months after the alleged occurrence of kidnapping. During his cross-examination, the I.O stated that he had received no telephonic information from either parent of the victim. Although the PW2 stated that there is no mobile phone in her house except that of her husband, she claims to have informed him over telephone about the incident.
21. PW6, the father of the victim and husband of PW2 also stated in his evidence that he was informed of the incident by his wife when he was in Kerala. This goes to show that the mother of the victim did have access to telephone and yet she did not inform anybody else or the police.
22. PW4, Nijam Uddin, who was the Secretary of the Masjid Committee, deposed that on the following day of the incident one of the daughters of the informant came to him and reported that the victim had been missing since the previous day and that they had heard that the accused had kidnapped her, whereafter, PW4 went to the house of the accused and met both the accused and his father and also saw the victim. He wanted to settle the matter amicably but they refused. But PW4 also did not inform the police Page No.# 15/24 and he did not know whether any FIR had been lodged by the family of the victim. The version of the PW4, even if taken at its face value, gives rise to the impression that the stay of the victim in the house of the accused was of a voluntary nature, inasmuch as she did not indicate otherwise to the PW4.
23. PW5, who was the President of the Masjid Committee, had also deposed similarly about being informed of the incident by another daughter of the informant, whereupon, he went to the house of the accused and found few persons there and discussed the matter with the father of the accused and requested him to take steps for return of the victim but he did not agree. He admitted that he did not inform the police about the incident.
24. Therefore, both these responsible persons, i.e. PW4, Secretary of the Masjid Committee and PW5, President of the Masjid Committee, did not think it fit to inform the police which goes to show that they did not get any indication or form any impression that the victim was being held against her will in the house of the accused. The prosecution would have the Court believe that despite an allegedly minor daughter of the informant being forcefully kidnapped by the accused and kept in confinement and subject to repeated rape did not induce the mother or father of the victim to lodge any complaint with the Police. Even if the father was in Kerala, in the present times with the advancement in communication in the form of mobile phones, there is no explanation as to why the father of the victim could not have got the information to the Police.
25. All of this goes to show that the parents of the victim were aware that the victim had voluntarily gone with the accused appellant and stayed in their Page No.# 16/24 house. As otherwise, they would not have waited for the return of the girl nearly 8 months later to lodge the instant FIR. What is also of immense significance to note is that during the cross-examination of the victim, it was put to her that she did not state before the I.O, that the accused coming from inside the jungle caught hold of her hand and gagged her mouth and took her away inside the jungle or that the accused committed rape upon her every night, which omission was confirmed by the I.O during his cross-examination.
26. Therefore, the most significant aspect of the incident was not stated by the victim before the I.O. Therefore, the aforesaid omission certainly amounts to a contradiction which cannot be termed as a minor one by any stretch of imagination, more so as the projected scenario appears to be highly improbable and impracticable.
27. In Rai Sandeep Vs. State of NCT, Delhi, reported in (2012) 8 SCC 21, the Hon'ble Supreme Court observed at paragraph 15 as follows:-
"15. In our considered opinion, the 'sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Page No.# 17/24 Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to the applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
28. In view of the aforesaid major contradiction in respect of the evidence of Page No.# 18/24 the PW1/victim, she can hardly be regarded as a sterling witness on the basis of whose sole testimony the conviction can be founded.
29. There are no other eye witnesses to the alleged occurrences and the evidence of the mother and father of the victim cannot be treated as res gestae evidence to corroborate the version of the victim as they were reported about the incident long after the initial incident took place. Though it may well be urged on behalf of the prosecution that being in confinement she could not have earlier reported the matter to her parents but that by itself would not bring the evidence within the ambit of Section 6 of the Evidence Act. The evidence of PW2, the mother, does not say that the victim reported to her that the accused gagged her and took her through the jungle to the house of the brother of the accused but only that the accused forcibly took her, kept her confined and sexually molested her.
30. Therefore, her testimony also cannot be said to have corroborated the victim's version on specific aspects and as already noted, there are serious inconsistencies in her version regarding the manner in which she informed others about the incident including her husband. PW2 therefore cannot be regarded as a very credible witness. PW6 is of course a hearsay witness having come to learn about the incident from the mouth of the victim, after his return from Kerala eight months later.
31. The appellant has been convicted of the offence under Section 366 pertaining to kidnapping, abducting or inducing a woman to compel her marriage etc. Page No.# 19/24
32. Section 361 IPC defines kidnapping as follows :-
"Section 361. Kidnapping from lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
33. Section 362 IPC defines abduction as follows:-
"Section 362. Abduction. Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person."
34. In S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942, it has been observed by the Supreme Court as follows:-
"(9). It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full Page No.# 20/24 import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
35. In Rishipal Singh Solanki Vs. State of UP & Others reported in LL 2021 SC 667, it was held by the Hon'ble Supreme Court as follows:
"29(xi). Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
36. The prosecution case is one of forceful kidnapping/ abduction and hence there is no scope to determine whether any deceitful means or enticement was employed by the accused appellant which led to the victim accompanying the accused appellant firstly to the house of his brother and next to his own house. In any case the prosecution version that the victim was kept under confinement for nearly eight months in the same village when other people like PW4 & PW5 had access to the house is rather difficult to believe and the facts and circumstances point towards the voluntariness of the stay of the Page No.# 21/24 victim in the house of the accused appellant. Therefore in view of the absence of the aforesaid ingredients including the element of force which can safely be ruled out in the present case, the charge under Section 366 IPC fails.
37. With regard to the charge under Section 4 of the POCSO Act, the basic and most important ingredient is the minority of the victim. Let us examine the evidence adduced in this regard. Admittedly the I.O has failed to procure the school certificate of the victim which is a serious lapse in investigation in as much as, as per the provisions of the Juvenile Justice Act, more specifically Section 94 thereof and earlier Rule 12 of the Juvenile Justice Act Rules, the school certificate is a preferential document in determining the age of the juvenile and the same provisions are also applicable in case of deciding the age of the victim, as held by the Hon'ble Apex Court.
38. The prosecution has examined one Doctor Mrs. Monalisa Dev as PW3. She deposed that she had carried out the medical examination of the victim on 17.07.2017 and had advised x-ray investigation and as per the result of the x- ray investigation, her age was determined to be above 14 years and below 16 years. Learned Counsel for the appellant has relied upon a decision of the Delhi High Court in the case of Raju Vs. State (NCT of Delhi) in Criminal Appeal No. 102 of 2021 decided on 08.10.2025 wherein it has referred to its own decision in Court on its Own Motion Vs. State of NCT of Delhi , reported in 2024 SCC OnLine Del 4484 which reference was answered by the Division Bench of the Delhi High Court in the following terms:-
"46. As an upshot of our foregoing discussion, the Reference is answered Page No.# 22/24 as under: -
(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?
Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on 'bone age ossification report', the upper age given in 'reference range be considered as age of the victim.
(ii) Whether the principle of 'margin of error' is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test.
Ans: Yes. The margin of error of two years is further required to be applied.
47. This Court, while answering the Reference, had taken note of various precedents on the issue involved and also referred to one judgment of Supreme Court in Rajak Mohammad Vs. State of Himachal Pradesh reported in 2018 SCC OnLine SC 1222, wherein Supreme Court had observed that though 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 doubt, if any with Page No.# 23/24 respect to the correct age of the prosecutrix, naturally, must go in favour of the accused."
39. The Medical Officer has reported the age of the victim on the basis of radiological examination to be above 14 years and below 16 years which would mean that the age of the victim, taken on the higher side can be 15 years 11 months 30 days. By applying the margin of two years to the aforesaid age, the age of the victim would be 1 day less than 18 years. It is well settled that forensic science is not mathematics and it would therefore be highly unreasonable and imprudent not to disregard the shortage of one day in determining the age of the victim, keeping in mind that the benefit of doubt must go in favour of the accused.
40. Considered in the light of the above discussion, it cannot held that the prosecution has proved the age of the victim as below 18 years beyond reasonable doubt. Hence, the charge under Section 4 of the POCSO Act must necessarily fail. The upshot of the aforesaid discussion is that it appears to the Court that the relationship between the victim and the appellant was of a consensual nature who accompanied the appellant voluntarily and since the prosecution could not conclusively establish that the victim was a minor at the time of occurrence, no case of statutory rape under Section 376 IPC would be made out either. What is also of importance to note is that as per the version of the victim, the incident of kidnapping took place on 21.11.2016 and she returned home three months thereafter and according to the father of the victim, he returned home from Kerala about two and half months after the incident and found his daughter in his house but yet, the FIR was lodged nearly Page No.# 24/24 five months later only on 10.07.2017, there being no explanation for such inordinate delay. Furthermore, as already discussed above, the evidence of the victim herself was not found to be of sterling quality given the contradictions vis-à-vis her statement before the I.O.
41. For the aforesaid reasons, the impugned Judgment cannot be sustained and the appeal succeeds.
42. The impugned Judgment and Order dated 11.02.2021 passed by the learned Additional Session Judge (Special Judge) Cachar, Silchar in SPL (POCSO) Case No. 42/2017 is set aside and the appellant be set at liberty forthwith.
43. Appeal stands allowed and disposed of accordingly.
JUDGE Comparing Assistant