The Gauhati High Court quashed a man's conviction for kidnapping and sexual assault under POCSO Act observing that the prosecution failed to prove the case beyond reasonable doubt as it could not establish that the accused knew the alleged victim was a minor or that he had the intention to have sexual intercourse with her.

The court was hearing a man's appeal against a trial court order which had held that the alleged victim had gone with the appellant only because appellant had blackmailed her by saying that if she did not go with him he would commit suicide.

The Trial Court also held that the alleged victim was about 13-14 years old at the time of the incident, as per her Birth Certificate. It also held that the appellant took her to Guwahati and other places proved that she had been kidnapped. Further, they had indulged in physical relations as per her evidence and as sexual intercourse with a minor more than once violates Section 5(l) of the POCSO Act, it is an offence.

Perusing the evidence a Division Bench of Justice Michael Zothankhuma and Justice Rajesh Mazumdar observed that the comparison of entries in the original Register of Births and Deaths and counterfoil of the Birth Certificate, proved that the alleged victim's date of birth was 02/02/2008. As the FIR had been filed on 02/04/2021, the girl would have been around 13 years of age at the time.

It said that though the girl had apparently willingly gone with the appellant and had sexual relations with him, a minor cannot give a valid consent. Further, the appellant being a married man with a child, he should not have played around with the emotions of a vulnerable victim, who was allegedly a school going child, the court added.

"The appellant during his examination under Section 313 Cr.P.C. had stated that the victim had told him that she was 18 years old and that the victim had over-written her year of birth in her Birth Certificate from 2008 to 2003, which has not been controverted...

A reading of the explanation given by the appellant to Question No.14, in his examination under Section 313 Cr.P.C, goes to show that the appellant has put up a plausible version of not knowing the age of the victim. Further, when the appellant has set up a defence and offered an explanation which is probable, by considering the preponderance of probability of the victim having overwritten the year of birth in her Birth Certificate, it is the requirement of the Court to consider the explanation given by the appellant, to decide as to whether the plausible version given by the appellant creates a doubt in the mind of the Court or whether it corroborates the evidence of the Prosecution"

The court said that the uncontroverted explanation of the appellant, given during his examination under Section 313 Cr.P.C. cannot be simply washed away, as a doubt has been created as to whether the appellant really knew that the alleged victim was a minor at the time when they had gone on a trip to Guwahati and other places.

The court also said that there was overwriting in the girl's Birth Certificate but it was never in the accused's possession;as such, it cannot be said that the appellant was aware that the alleged victim was a child, due to the overwriting in herBirth Certificate.

"When a doubt has been created by the appellant and the Prosecution has not been able to prove that the appellant had the knowledge that the victim was a minor or had the intention to have sexual intercourse with a minor, it cannot be said that the Prosecution has proved it's case beyond reasonable doubt against the appellant, in respect of the charges framed under Section 366 IPC and Section 6 of the POCSO Act. The Prosecution has not been able to prove that both the elements, i.e, mens rea and actus reus, were present on the part of the appellant beyond reasonable doubt. As such, we find the conviction of the appellant under Section 366 IPC read with Section 6 of the POCSO Act to be unsustainable," the court held.

It said that on first blush there appeared to be no infirmity in the trial court's finding that the girl had been kidnapped. However, the appellant and the girl had gone in a bus and lived in several places; thus the court said, it was quite apparent that the alleged victim had gone willingly with the appellant and had met various people on the way. It said that the girl could have complained to any number of people and told them that she was being kidnapped if she had not gone willingly with the appellant.

The court also observed that the evidence of the alleged victim read with the corroborative evidence of the Doctor which showed that the hymen was absent, proved that the appellant had sexual intercourse with the victim.

"The victim being akin to an injured witness, we have to accept the testimony of the victim to be probable, though it is not an absolute rule that the testimony of an injured witness is always the gospel truth," the court said. It further observed admittedly appellant and the alleged victim stayed together for more than 10 days, prior to her recovery of the by the Police.

It said that as per her evidence read with the answers given by the appellant during his examination under Section 313 Cr.P.C, indicates that she was in love with him. This, the court said was also corroborated by the her statement under Section 164 Cr.P.C.

"We have to piece together the story, not only from the evidence of the victim, but from the explanation given by the appellant during his examination under Section 313 Cr.P.C. When it is a fundamental requirement to put before an accused the adverse evidences recorded against him, to provide him a reasonable opportunity to explain the same, the duty of the Court is to consider such explanation," the court underscored.

The Court acquitted the appellant and set aside the Trial Court judgment.

Case No.: Crl.A./12/2022

Case Title: Aminul Sikdar @ Md. Animul Sikdar v. State of Assam & Anr.

LL Citation: 2026 LiveLaw (Gau) 134