The Gauhati High Court has set aside the conviction of a man under Section 376(3) IPC read with Section 6 of the POCSO Act after finding that the medical evidence showed that the victim had become pregnant about two months prior to the alleged rape.

A Division Bench of Justice Michael Zothankhuma and Justice Shamima Jahan observed, “When the medical evidence with regard to the live foetus proved that the victim had become pregnant in February, 2017, her testimony that she had been raped by the appellant in April, 2017, which led to her being pregnant, turns out to be false. The evidence of PW-1 cannot be said to be trustworthy or truthful.”

The observation came in a criminal appeal challenging the judgment passed by the Special Judge, Udalguri in Special (POCSO) Case. The appellant had been convicted under Section 376(3) IPC read with Section 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for life with a fine of Rs.20,000.

The prosecution case was that the victim was raped by the appellant in April, 2017 while she was on her way to bring back cattle from the village paddy field. She stated in her evidence that she became pregnant as a result of the rape. However, the doctor who examined her in October, 2017 found, on ultrasonography, a live foetus of 35 weeks and two days.

The main ground of challenge was that the medical evidence showed that the pregnancy would have occurred in February 2017, around two months prior to the alleged incident of April 11, 2017. The appellant therefore contended that he could not have been the person who raped the victim as alleged.

The High Court found that 35 weeks and two days was approximately equivalent to 8 months and 3 days and, accordingly, the pregnancy would have occurred in February 2017. It noted that there was nothing in the evidence of the victim or any other prosecution witness to the effect that the victim had been raped by the appellant on any date except April, 2017.

The Court further held that the evidence of the victim's parents, who had also stated that the rape resulted in the pregnancy, was “not believable, as the same is hit by the medical evidence.”

It also noticed, “It is interesting to note that PW-2 (mother of the victim), in her cross-examination, has stated that the appellant had been urging for a DNA test of the baby. However, the same was not done due to the fact that the Officer-in- Charge of the Police Station was transferred. PW-3, who is the uncle of the victim, in his cross-examination, also stated that he did not know if the appellant insisted on a DNA test. However, the victim had been reluctant to have a DNA test. PW-4 (father of the victim) also stated, in his cross- examination, that the appellant insisted for a DNA test, stating that he was innocent.”

The Court finally observed, “The above being said, the fact remains that the date of pregnancy of the victim was two months prior to the alleged rape. As such, the victim could not have been raped by the appellant.”

Accordingly, holding that the prosecution had not been able to prove the guilt of the appellant, the High Court set aside the judgment of conviction and acquitted him of the charges under Section 376(3) IPC and Section 6 of the POCSO Act.

It directed that he be released from judicial custody immediately, if not wanted in any other case.

Case No.: MACApp./273/2015 with CO/1/2018

Case Title: BABUL BAISHYA v. STATE OF ASSAM

LL Citation: 2026 LiveLaw (Gau) 139

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