Sanchayita Lahkar

The Gauhati High Court Division Bench of Justice Michael Zothankhuma and Justice Kaushik Goswami set aside the conviction of an accused under the Protection of Children from Sexual Offences (POCSO) Act, acquitted him of all charges, and directed his release if not wanted in any other case. The prosecution alleged that a minor girl was lured to the accused’s house near a pond and raped, with allegations of repeated assaults. While allowing the appeal, the Court said POCSO investigations must be carried out with sensitivity and in strict compliance with child-friendly procedures, including access to counselling, appointment of support persons, and recording clear, specific statements, warning that casual or defective investigation can prejudice the accused and may also result in acquittals even where an offence might have occurred.

The appeal arose from a conviction under Section 376(3) of the IPC read with Section 6 of the POCSO Act, whereby the trial court sentenced the accused to rigorous imprisonment for 20 years and imposed a fine. The prosecution case originated from an FIR lodged by the father of a minor girl alleging that the accused had lured her to his house near a pond and committed rape.

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During trial, eight prosecution witnesses were examined, including the victim, her parents, the Investigating Officer, and the Medical Officer. The victim deposed about repeated penetrative acts. The father stated that he had seen the accused and the victim coming out of the accused’s house. The mother deposed about disclosure made by the child. The school headmaster produced the school certificate reflecting the victim’s date of birth.

The defence contended that the earliest statements of the victim before the police and under Section 164 Cr.P.C. did not disclose penetration and that her deposition before the trial court contained material improvements. The Medical Officer found the hymen intact and noted absence of evidence of recent sexual intercourse. The prosecution relied on precedents to argue that conviction could rest on sole testimony of the prosecutrix.

The Court observed that “In criminal jurisprudence, the prosecution must establish foundational facts beyond reasonable doubt.” It recorded that “Suspicion, however strong, cannot substitute legal proof.” On the evidence, it stated: “Upon appreciation of the evidence, we find that the prosecution case suffers from vague earlier disclosures.” It further recorded: “There is a lack of corroboration in the testimonies of the witnesses, and also the medical evidence does not support the version of the prosecutrix.” It added that “The testimony of the prosecutrix also does not inspire confidence and falls short of proof beyond a reasonable doubt.”

Addressing the nature of the earliest disclosure, the Court recorded: “What transpires from the above is that the prosecutrix, during giving her initial statement before the police, merely alleged that the accused committed a “bad act”.” It noted that “No allegation of penetration or sexual act was made.” It also recorded: “In her statement under Section 164 of the Cr.P.C. before the Judicial Magistrate also, the prosecutrix stated that the accused committed a “bad act” and held her hand.”

The Court stated: “Despite repeatedly being asked by the jurisdictional Judicial Magistrate what she meant, she remained silent and stated that her father would know.” It added: “No allegation of sexual act surfaced.” On the significance of this omission, it recorded: “The omission of the core ingredients of the offence of sexual penetrative assault under Section 6 of the POCSO Act in the earliest judicial statement assumes significance.” It further stated: “During the trial, she described repeated penetrative acts, bleeding, and pain.” and “This is a substantial improvement on the foundational aspect of penetration.”

On the overall effect of the infirmities, the Court stated: “Viewed thus, the cumulative effect of the infirmities noticed by this court makes it unsafe to hold that the accused/appellant committed any criminal offence whatsoever in the manner alleged.” It recorded that “The learned trial court, while recording the conviction failed to properly appreciate material contradictions, omissions, and procedural lapses, and thus the impugned judgment suffers from serious infirmities warranting appellate interference.”

Before concluding, the Court recorded that “the present case discloses serious deficiencies in the manner in which the investigation was conducted in a matter involving a child victim under the POCSO Act.” It noted: “Despite the prosecutrix repeatedly having used the expression “bad act” in her earliest statements, the record does not indicate that the child was provided psychological counselling or emotional support to enable her to narrate the incident in a clear and comfortable manner.” It stated: “Further, there is no material to show that a support person was appointed to assist the child during the investigation and trial.”

The Court recorded: “Failure to provide such assistance defeats the very purpose of the child-friendly procedures contemplated under the Act.” It also stated: “Such lapses result not only in prejudice to the accused but also in failure of justice to the child, as a defective investigation may lead to acquittal even where an offence might have occurred.”

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It recorded: “Investigating agencies dealing with POCSO cases must be sensitized and trained to adopt child-friendly procedures, ensure counselling assistance where necessary, appoint support persons, and record clear, specific statements so that truth emerges without ambiguity.” and that “Proper investigation is essential both for the protection of child victims and for ensuring that criminal justice is not defeated.”

The Court directed that “the criminal appeal succeeds, and the same is accordingly allowed. The judgment and order dated 07.06.2024 passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO), Morigaon, in POCSO Case No. 269/2023 under Section 376(3) of the IPC read with Section 6 of the POCSO Act is hereby set aside and quashed.”

“The appellant is acquitted of all the charges and shall be released forthwith if not required in any other case. Bail bonds stand discharged. Let the learned trial court return the same to the concerned police station to enable the said authority to place it in the appropriate case record. Return the TCR along with a copy of this order.”

Advocates Representing the Parties

For the Petitioners: Ms. B.R.A. Sultana, Legal Aid Counsel

For the Respondents: Ms. B. Bhuyan, Senior Counsel/Additional Public Prosecutor, Assam

Case Title: Md. Shah Alam v. State of Assam & Anr. 

Neutral Citation: 2026: GAU-AS:1529

Case Number: CRL.A(J) No. 87 of 2024

Bench: Justice Michael Zothankhuma, Justice Kaushik Goswami