Victim's Age Not Established: Gauhati High Court Sets Aside 20-Year POCSO Sentence; Imposes 12 Years For Rape
The Gauhati High Court has held that conviction under Section 4 of the POCSO Act cannot be sustained where the prosecution fails to prove that the victim was below 18 years of age, though the offence of rape may independently stand proved under Section 376(1) IPC.A Division Bench of Justice Michael Zothankhuma and Justice Shamima Jahan observed, “We hold that though conviction under Section...
The Gauhati High Court has held that conviction under Section 4 of the POCSO Act cannot be sustained where the prosecution fails to prove that the victim was below 18 years of age, though the offence of rape may independently stand proved under Section 376(1) IPC.
A Division Bench of Justice Michael Zothankhuma and Justice Shamima Jahan observed, “We hold that though conviction under Section 4 of the POCSO Act, 2012 is not made out, only because the age of the victim being below 18 years of age has not been proved during trial, the factum of rape of the victim by the appellant has been proved.”
The observation came in an appeal under Section 374(2) CrPC against the judgment of the Special Judge (POCSO), Baksa, convicting the appellant under Section 4 of the POCSO Act and sentencing him to rigorous imprisonment for 20 years with a fine of ₹20,000. The Trial Court had also framed a charge under Section 376(1) IPC but did not record any finding on it.
The prosecution case was that the appellant raped the victim near the Deosunga river in October, 2019. The victim's account was supported by two eyewitnesses, while the doctor who examined her found a tear in the hymen and stated that there was evidence of penetration within 48 hours. The radiological investigation report showed that the victim was between 14 and 16 years of age.
The appellant contended that there was a discrepancy in the victim's testimony, as she had stated at one stage that she knew the appellant, but later stated that she had not seen him earlier and did not know him. It was also argued that while she stated in her testimony that she had gone to the river to fetch water, in her statement under Section 164 CrPC she had stated that she had gone to defecate before the incident. It was also contended that her age had not been proved.
The respondents, however, relied on the victim's testimony, the eyewitness accounts, the medical evidence and the seizure list which mentioned her date of birth as February 1, 2006.
The High Court found that the victim's evidence stood corroborated by the eyewitnesses and the medical evidence.
“The above evidence, in our view, clearly proves that the appellant had raped the victim,” it said.
On the discrepancies in the victim's statements, the Court noted, “Though there is a discrepancy with regard to her statements made under 161 Cr.P.C and 164 Cr.P.C vis-à-vis her testimony, with regard to her going to defecate and her fetching water before being raped, we find that the factum of rape committed by the appellant upon her, has remained consistent.”
On the question of age, the High Court noted that neither the School Certificate nor the Birth Certificate had been exhibited before the Trial Court and copies of those documents were also not available in the records.
“Though the seizure list had been exhibited as Ext.5, the contents of the seizure list had not been proved by the Prosecution witnesses,” the High Court further noted.
It further observed, “The exhibition of the seizure list as Ext.5 does not per se prove the contents of the seized School/Birth Certificate of the victim.”
The Court then considered the radiological examination, which assessed the victim's age to be between 14 and 16 years.
It held, “As such, the benefit of two years on the victim's age, determined by the Doctor to be between the range of 14 to 16 years, would require adding the benefit of another two years to the victim's upper 16 year range. Accordingly, we would have to hold that the victim was 18 years of age at the time of the incident.”
It consequently held, “Consequently, the provisions of the POCSO Act 2012 would not apply to a person who has attained the age of 18 years.”
At the same time, the High Court noted that a charge under Section 376(1) IPC had also been framed and found that the prosecution evidence had proved that rape was committed by the appellant.
“We hold that the Prosecution has been able to establish the guilt of the appellant for committing an offence punishable under Section 376(1) IPC.”
Accordingly, while holding that conviction under Section 4 of the POCSO Act was not made out as the victim's age below 18 years had not been proved during trial, the High Court convicted the appellant under Section 376(1) IPC and sentenced him to rigorous imprisonment for 12 years with a fine of ₹20,000.
The Trial Court's judgment was modified to that extent and the appeal was dismissed with the modification.
Case No.: Crl.A./284/2022
Case Title: Md. Majib Ali v. The State of Assam & Ors.
LL Citation: 2026 LiveLaw (Gau) 164