A conviction for sexual assault cannot be sustained solely on the testimony of a prosecutrix when there are material contradictions between her statement under Section 164 CrPC and her trial testimony, and the prosecution fails to establish the foundational facts required to invoke statutory presumptions of guilt.

JUDGMENT :

M. Zothankhuma, J.

1. Heard Mr. A. Ahmed, learned counsel for the appellant and Ms. A. Begum, learned Addl. PP for the State.

2. The appellant has prayed for setting aside the impugned Judgement dated 09.09.2024, passed by the Special Judge (POCSO), North Salmara, Abhayapuri in Special (P) No. 13(J)/2018, by which the appellant has been convicted under Section 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default, to undergo simple imprisonment for 6(six) months.

3. The appellant's counsel submits that the age of the victim could not have been 16 years, but would have been around 19 years at the time of the incident, in terms of the evidence given by the stepfather (PW-1) of the victim in his cross-examination, where he stated that at the time of his marriage with the victim's mother, which was 17 years ago, the victim was 6-7 months old, while the incident occurred sometime in February 2018, as the FIR stated that the victim was 4 months pregnant at the time of filing the FIR dated 04/06/2018.

4. Further, the testimony of the witnesses showed that there was no evidence to justify the conviction of the appellant under Section 6 of the POCSO Act. Also, the HSLC Registration Certificate of the victim, which had been relied upon by the Learned Trial Court, to come to a finding that the victim was 16 years of age, had not been proved, inasmuch as, merely exhibiting a document without comparing with the original, does not prove the contents of the same.

5. The learned counsel for the appellant further submits that the mother of the victim (PW-3) did not know the date of birth of the victim. Further, the radiological examination of the victim showed her age to be around 18 years. The prosecution also did not conduct a DNA test to ascertain the paternity of the child born to the victim, even though the appellant denied the allegation that he had fathered the said child. Further, no incriminating evidence relied upon by the prosecution, had been put to the appellant during his examination under Section 313 Cr.P.C. He also submits that as the foundational facts had not been proved by the prosecution during trial, Section 29 of the POCSO Act could not be attracted to the present case.

6. The learned APP, on the other hand, submits that the victim had become pregnant and given birth to a child, due to the aggravated penetrative sexual assault committed by the appellant against the victim. Further, the evidence of PWs 4, 5 and 6 showed that a Bichar (public meeting) had been held in the village where the appellant confessed his guilt, stating that he had made the victim pregnant. Also, the victim was only 16 years of age at the relevant point of time, as the Registration Card-2017 of the victim issued by the Board of Secondary Education Assam, showed that the victim’s date of birth was 16.05.2003, while the incident had apparently occurred sometime in February, 2018. She accordingly submits that the appeal should be dismissed.

7. We have heard the learned counsels for the parties.

8. The prosecution case in brief is that the informant (PW-1), who is also the stepfather of the victim, submitted an FIR dated 04.06.2018 to the Officer-in-Charge, Jogighopa Police Station, stating that the appellant