Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Gau) 1848

THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MANISH CHOUDHURY, MARLI VANKUNG, JJ.
Saiful Islam, S/o Surat Jamal – Appellant
Versus
State of Assam, represented by the Public Prosecutor, Government of Assam – Respondents
Criminal Appeal No. 126 of 2023
Decided On : 06-11-2025

Advocates Appeared:
For the Appellant :Mr. S. Das, Advocate.
For the Respondent s: Mr. R.R. Kaushik, Additional Public Prosecutor, Assam, Mr. S. Biswas, Adv., Legal Aid Counsel

The presumption of a minor's age based on a Birth Certificate can be rebutted by credible evidence, affecting the applicability of POCSO and rape charges.

Headnote:(A) Criminal Procedure Code, 1973 - Section 374 - Indian Penal Code, 1860 - Sections 417 and 376(3) - Protection of Children from Sexual Offences Act, 2012 - Section 4 - Conviction for rape and cheating - The appellant was initially sentenced to imprisonment for 20 years under POCSO Act and 1 year under IPC - The court analyzed the credibility of the prosecutrix by examining evidentiary inconsistencies and the validity of the Birth Certificate concerning prosecutrix's age - The defense successfully rebutted the presumption of the prosecutrix being a minor at the time of the alleged offence, leading to a quashing of the conviction. (Paras 1, 49, 59)

JUDGMENT :

M. Choudhury, J.

1. This criminal appeal under Section 374 , Code of Criminal Procedure, 1973 [‘the Code’ or ‘CrPC’, for short] is directed against a Judgment and Order dated 19.01.2023 passed by the Court of learned Additional Sessions Judge-cum-Special Judge [POCSO] [‘the Special Court’, for short] in Special Case no. 21/2021, which arose out of G.R. Case no. 2722/2020 and Dhubri Police Station Case no. 829/2020. By the Judgment and Order dated 19.01.2023, the Special Court has convicted the accused-appellant for the offences under Section 4 17 and Section 376[3] of the INDIAN PENAL CODE [IPC] as well as Section 4 of the Protection of Children from Sexual Offences [POCSO] Act, 2012. For the offence under Section 4 17 , IPC, the accused-appellant has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000, in default of payment of fine, to undergo rigorous imprisonment for a further period of fifteen days. In view of Section 4 2 of the POCSO Act, the accused-appellant has been sentenced under Section 4 of the POCSO Act only and he has been imposed a sentence of rigorous imprisonment for a term of twenty years and to pay a fine of Rs. 15,000/-, in default of payment of fine, to undergo rigorous imprisonment for another three months. The sentences are ordered to run concurrently.

2. The First Information Report [FIR] was lodged by P.W.3 as the informant before the Officer-in-Charge, Dharmasala Police Station W.P. on 29.06.2020. In the FIR, the informant named four persons as accused, namely, [i] Saiful Islam [the accused-appellant]; [ii] Soleman Ali; [iii] Surat Jamal; and [iv] Inisa Bibi, all residents of Kachuarkhas Part-I, Post Office – Dharmasala, Police Station & District – Dhubri.

3. In the FIR, it was inter alia alleged that the accused-appellant who was named as accused no. 1 in the FIR, ensnared the informant's daughter into a love affair, thereby, establishing physical relation with her several times on the pretext of marrying her. Though his daughter refused to have physical relation with the accused no. 1 as she was a minor, the accused no. 1 committed rape on her forcefully and promised her that he would marry her. The love affair continued in that manner for a year, on being instigated by the other three accused. The informant further stated that all of a sudden, that is, on the date of lodging the FIR, the accused no. 1 refused to marry his daughter. The informant stated to have learnt that the marriage of the accused no. 1 had been arranged with another woman and he would be getting married on 29.06.2020. The FIR was lodged with the request to take necessary action in the matter. The informant further mentioned that the influential people of the village met three days earlier but at the instigation of the accused nos. 2, 3 & 4, the accused no. 1 refused to marry his daughter.

4. On receipt of the FIR, the same was registered by the Officer-in-Charge, Dhubri Police Station as Dhubri Police Station Case no. 829/2020 under Sections 4 17 /376[3], IPC read with Section 6 of the POCSO Act on 30.06.2020 and entrusted nd the investigation to one Ms. Himakshi Nath [P.W.10], the 2 Officer attached to Dhubri Police Station.

5. On being entrusted with the investigation, the I.O. [P.W.10] recorded the statement of the informant and sent the prosecutrix for medical examination on 01.07.2020. The I.O. seized the original Birth Certificate of the prosecutrix [Ext.-2] vide Seizure List [Ext.-3] in presence of witnesses and the statements of the two seizure witnesses, Hazarat Ali [P.W.2] and Sader Ali [P.W.6] were recorded. The I.O. then visited the place of occurrence [P.O.] and prepared a rough sketch map of the P.O.[Ext.-7]. The statements of few other witnesses, Rejina Bibi [P.W.4], Faziron Bibi, Aminur Islam [P.W.7] and Abed Ali [P.W.5] were recorded under Section 161 , CrPC by the I.O. The I.O. then produced the prosecutrix in the Court of Learned Judicial Magistrate,