The prosecution must establish the age of the victim beyond reasonable doubt in cases under the POCSO Act; failure to provide adequate evidence leads to acquittal.

JUDGMENT :

Rajesh Mazumdar, J.

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 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 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.

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