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THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MICHAEL ZOTHANKHUMA, MITALI THAKURIA
Bishnu Kishko Udalguri, Assam – Appellant
Versus
State Of Assam Rep. By Pp, Assam – Respondent
JUDGMENT :
Michael Zothankhuma, J.
1. Heard Mr. B.J. Talukdar, learned Senior Counsel appearing as Amicus Curiae for the appellant assisted by Mr. P.K. Medhi. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam for the State respondent.
2. This appeal is against the impugned judgment dated 21.01.2021 passed by the Special Judge, Udalguri, in Special POCSO Case No.41/2019 arising out of Orang P.S. Case No.70/2019, by which the appellant has been convicted under Section 376 (2)(f) of IPC and sentenced to undergo rigorous imprisonment for life, with a fine of Rs.5,000/-, in default simple imprisonment for 3 (three) months.
3. The appellant’s counsel submits that the appellant has been convicted by the learned Trial Court only on the basis of the statement made by the victim girl in her 164 Cr.P.C statement, which was later retracted by her during her testimony before the learned Trial Court. As there is no evidence adduced against the appellant, the appellant could not have been convicted by the learned Trial Court.
4. Ms. A. Begum, learned Additional Public Prosecutor submits that conviction under the POCSO Act, 2012 can be made on the sole testimony of the victim, provi
Conviction under POCSO can only rely on substantive evidence; retracted statements are insufficient for proving guilt.
Statements made under Section 164 Cr.P.C. are not substantive evidence and cannot alone support a conviction, especially when retracted by the victim.
Conviction under POCSO Act modified from Section 6 to Section 10 due to evidentiary inconsistencies regarding penetration and charge alteration procedures impacting the defense.
Point of Law : Medical examination report of the victim's girl shows that there was a recent tearing of her hymen, coupled with the testimony of the victim that she was raped by the appellant.
Conviction under POCSO Act cannot be sustained on the basis of unreliable witness testimonies, especially when witnesses turn hostile and fail to corroborate the prosecution's case.
The statement of a deceased victim recorded under Section 164 CrPC is not substantive evidence and cannot solely support a conviction; the prosecution must prove the victim's age and provide corrobor....
Credible victim testimony can support conviction, but prosecution must prove guilt beyond a reasonable doubt, which requires clear evidence not based on conjectures.
The main legal point established is the admissibility of adverse inference from the accused's denial of incriminating materials, along with the reliance on medical evidence and confession in reaching....
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