Gauhati High Court
Page No.# 1/14 vs The State Of Assam And Anr on 2 April, 2026
Page No.# 1/14
GAHC010220912024
2026:GAU-AS:4847
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/994/2024
BISHNU DUTTA
S/O. SRI BIPUL DUTTA, R/O. VILL. SINATOLIA, RUPNAGAR, P.S. NORTH
LAKHIMPUR, DIST. LAKHIMPUR, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM.
2:BASANTI DAS
W/O. SRI MOHAN SINGH
R/O. VILL. KHELMATI LACHIT NAGAR
WARD NO. 14
P/S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
ASSAM
Advocate for the Petitioner : MS. S G BARUAH, MR. S NEOG,MR B SAIKIA,MR. B
BORGOHAIN
Advocate for the Respondent : PP, ASSAM, MR. U K DAS, LEGAL AID COUNSEL, R2
Linked Case : Crl.A./346/2024
BISHNU DUTTA
S/O. SRI BIPUL DUTTA
R/O. VILL. SINATOLIA
RUPNAGAR
Page No.# 2/14
P.S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP
ASSAM.
2:BASANTI DAS
W/O. SRI MOHAN SINGH
R/O. VILL. KHELMATI LACHIT NAGAR
WARD NO. 14
P/S. NORTH LAKHIMPUR
DIST. LAKHIMPUR
ASSAM.
------------
Advocate for : MS. S G BARUAH
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
Page No.# 3/14
:::BEFORE:::
HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA
Date on which judgment is reserved : 24.03.2026
Date of pronouncement of judgment :
Whether the pronouncement is of the : N/A
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT & ORDER (CAV)
Heard Ms. S.G. Baruah, learned counsel for the appellant. Also heard Mr.
B. Sharma, learned Public Prosecutor for the State and Mr. U.K. Das, learned
Legal Aid Counsel for the respondent no.2.
2. This appeal is directed against the impugned judgment and order dated
05.08.2024 passed by the learned Special Judge (POCSO), Lakhimpur, North
Lakhimpur in Special (POCSO) Case No.22/2017 under Section 4 of POCSO Act,
2012 convicting the accused appellant/accused person to undergo rigorous
imprisonment for 7 years and to pay a fine of Rs.7,000/- and in default to
undergo simple imprisonment for 5 months and also under Section 363 IPC
convicting the appellant/accused person to undergo rigorous imprisonment for 2
years and pay a fine of Rs.1000/- and in default to undergo simple
imprisonment for 1 months.
Page No.# 4/14
3. The facts of the case may be briefly recounted.
4. The factual background leading to the prosecution of accused Bishnu
Dutta U/S 363/376 of IPC R/W Section 4 of POCSO Act is that, on
09.06.2017 informant Basanti Das lodged an FIR alleging that, on 09.06.2017
her daughter was found missing from the room of her house where she was
studying. On enquiry, she came to know that, accused Bishnu Dutta
kidnapped her daughter.
5. On receipt of the ejahar, In-Charge of Khelmati Police out post made GD
entry No. 204 dated 10.06.2017 and forwarded the same to the North
Lakhimpur Police Station for registering a case under proper sections of law.
Accordingly, the Officer-in-Charge of North Lakhimpur Police Station registered a
case vide NL P.S. Case No. 722/2017 U/S- 363 of IPC. Thereafter, police
conducted investigation of the case and after completion of investigation, the
concerned I/O submitted Charge-sheet U/S-366(A) of IPC R/W section 4 of
POCSO Act against the accused
6. Though the charge was earlier framed U/S 8 of POCSO Act, but as from
scrutiny of materials on record, the elements of offences U/S 363/376 of IPC
and Section 4 of POCSO Act was revealed, hence offence U/S 8 of POCSO Act
was altered and charge was re-framed U/S 363/376 of IPC and Section 4 of
POCSO Act vide order dated 31.07.2023 and particulars of the charges on being
read over and explained to the accused, the accused pleaded not guilty and
claimed to face trial.
7. During trial, prosecution side examined as many as 6 (six) witnesses
including the M/O and I/O of the case. After closure of the prosecution
evidences, the accused was examined under section 313 of the Cr. P.C. The plea
Page No.# 5/14
of the accused was of total denial. Defence adduced evidence of one DW.
8. At this stage, the evidence on record may be discussed. PW.1, the victim-X
deposed that, accused is the friend of her elder brother Rakesh Singh. The
incident occurred about a year ago. On the day of the incident, there was a
quarrel between her and her mother Smti Basanti Das. Then, while she was
standing by the side of her front gate outside of her house, she saw the
accused Bishnu Dutta going by a motorcycle. Accused then asked her what
happened and she stated that, there was a quarrel between her and her mother.
Then Bishnu Dutta asked her to sit on his motorcycle saying that he would take
her to his aunt’s house situated at Chinatolia so that she might calm down.
Then, PW.1 got on his motorcycle and accused took her to his aunt’s house at
Chinatolia. There, victim girl stayed one night and on that night, she slept with
the accused on the same bed and there was sexual intercourse between them.
On the next day, accused took her to his friend Partha’s house situated
at Lilabari and they stayed for the night together on the same bed. But on that
night, no sexual intercourse took place between them. Again, on the next day,
she along with the accused went to his house situated at Rup Nagar at North
Lakhimpur, from where police recovered her and took her to the North
Lakhimpur police station. Thereafter, she was sent for medical examination and
also produced before the Court for recording her statement U/S 164, CrPC.
Exhibit-1 is her statement U/S 164, CrPC and Exhibit-1(1) to Exhibit-1(3) are her
signatures. She had given her statement U/S 164, CrPC as taught by the family
members of the accused.
During cross examination, PW.1 stated that, accused Bishnu Dutta had not
taken her away forcefully. She denied the fact that, she had given her statement
U/S 164, CrPC as taught by the family members of the accused. She also denied
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the fact that, she has not given her statement U/S 164, CrPC out of her own
will. She denied the fact that, she had love affair with the accused. She also
denied the fact that, she herself called Bishnu Dutta over phone. She also
denied the fact that, accused did not have sexual intercourse with her. She also
denied the fact that, she did not sleep with the accused in the house of his aunt
as well as in the house of his friend situated at Lilabari. She denied the fact
that, accused did not have any physical intercourse with her.
9. PW.2 Smti Basanti Das, the mother of the victim girl as well as the
informant of the case deposed that, incident occurred about a year back.
Accused Bishnu Dutta was a friend of her son Rakesh Singh due to which, the
accused used to often come to their house. At the time of the incident, her
daughter was 16 year old and was studying in Class-X at Subansiri High School.
One day, the principal of the school, informed her that, accused Bishnu Dutta
often used to wait at the gate of the school for her daughter and used to meet
her. On the day of the incident, for this reason, she beat her daughter.
Thereafter, she became busy in her household work by keeping her daughter in
her study room. After half an hour, she went to the study room and found her
daughter missing. When she could not find her daughter anywhere, she strongly
believed that, accused Bishnu Dutta kidnapped her daughter. Thereafter, on the
next day, she lodged FIR at Khelmati Outpost. After two days, police recovered
her daughter from the house of the accused. She was then taken to the police
station. Thereafter, she was sent for medical examination and also
produced before the court for recording her statement U/S 164, CrPC. Later on
she was handed over to PW.2. Her daughter told her that, accused Bishnu Dutta
had sexual intercourse with her Exhibit-2 is the FIR and Exhibit-2(1) is
her signature.
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During cross examination, PW.2 stated that, the FIR was written by
someone else. It was read over to her. Accused had not taken away her
daughter by applying force. She denied the fact that, she had not searched
for her daughter.
10. PWs 3 and 4 are reported witnesses as far as the actual incident is
concerned and their evidence is not of much significance for the purpose of
deciding the instant appeal and not discussed herein.
11. PW-5 Dr. Moromi Kalita, the medical officer of the case, deposed in her
evidence that, on 12.06.2017, she was working as Sr. Medical and Health officer
at North Lakhimpur Civil Hospital. On that day, about 11.20 AM, while she was
performing her duty, at OPD, she examined the victim girl on being produced
and identified by WPC No. 314 Smti Sangita Das and as per relevant medical
history, the victim girl was in love with Bishnu Dutta since 1 and ½ years and on
08.06.2017, she decided to get married and went to Dhemaji on his motorcycle
around 9.15 PM. From there, they returned and stayed in the house of one of
the friend’s house at Lilabari for next 2 nights. They had sexual intercourse for
several times. On 10.06.2017, she returned to her house as her parents filed a
case.
On examination, no spermatozoa was detected. As per ossification test of
age determination, her age was above 15 years and below 17 years. As per her
opinion, there was signs of sexual intercourse. There was no apparent injury
marks over her body nor on her private parts. Her age was above 15 years and
below 17 years. Exhibit-3 is her medical report and Exhibit-3(1) is her signature.
During cross examination, she stated that the age of the victim as
determined by the ossification test can vary from the actual date of birth.
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12. The I.O was examined as PW 6 and in course of his evidence, he
described the manner in which he carried out the investigation and also stated
that the accused surrendered himself at the police station.
13. At the end of the prosecution evidence, the accused was examined under
section 313 Cr.P.C, wherein he denied the allegations against him.
14. The defense examined the mother of the accused as DW-1. She stated
that the case was lodged in the year 2017. The son of the informant and her
son were friends and there was good relationship between the two families. One
day, the victim girl had quarreled with her mother and she went to their house.
DW.1 then offered her tea and then brought the victim girl back to her house.
But the informant rebuked her without any reason to which, DW.1 ,told that,
she had only come to return her daughter. After a few days, she came to know
that, informant had lodged FIR against her son.
During cross examination, she denied the fact that, after lodging of the
FIR, police recovered the victim girl from her house.
She also denied the fact that, her son took the Victim girl on his
motorcycle to his aunt’s house and kept there for one night and committed
sexual intercourse with her.
She also denied the fact that, on the next day, accused took the victim girl
to his friend’s house at Lilabari and thereafter, on the next day, to the house of
DW.1 from where, police recovered the victim girl. She also denied the fact that,
her son kidnapped the victim girl and kept her at various places and committed
sexual intercourse with her.
15. The learned Trial Court before proceeding to examine the evidence
regarding the occurrence, embarked upon the exercise of determining the age
Page No.# 9/14
of the victim on the basis of the available material. As no documentary proof
was available, the learned Trial Court placed reliance upon the evidence of the
PW-5 Medical Officer, who deposed on the basis of ossification test that the age
of the victim girl was above 15 and below 17 years of age.
16. On this point reliance can be placed on the decision in P. Yuvaprakash
Vs. State represented by Inspector of Police, (Criminal Appeal No.
1898 of 2023) decided by the Hon’ble Supreme Court on 18.07.2023, wherein
it has been observed that:-
“It is evident from conjoint reading of the above provisions that wherever
the dispute with respect to the age of a person arises in the context of her or
him being a victim under the POCSO Act, the courts have to take recourse to
the steps indicated in Section 94 of the JJ Act. The three documents in order of
which the Juvenile Justice Act requires consideration is that the concerned court
has to determine the age by considering the following documents:
“(i) the date of birth certificate from the school, or the matriculation or
equivalent certificate from the concerned examination Board, if available,
and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a
panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined
by an ossification test or any other latest medical age determination test
conducted on the orders of the Committee or the Board”.
17. Although the victim girl was a student of class 10, the I.O failed to
produce the date of birth certificate from the school that she was studying in
and therefore, the prosecution did not place before the court the best evidence
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that would have conclusively proved the age of the victim. Instead, the
prosecution relied upon the last option that is the ossification test and the Ld.
Trial Court accepted it merely in view of the fact that the defense did not deny
that the victim girl was not a child as defined under the POCSO Act. As noticed
earlier, although the defense did not categorically deny that the victim was a
minor at the time of occurrence, it did suggest to the PW-5 that the result of the
ossification test may vary from the actual date of birth, thereby indirectly
challenging the result of the ossification test and consequently the minority of
the victim, which suggestion was also accepted by the medical officer. In a case
of the present nature entailing severe penalties, it would not suffice for the Trial
Court to rest merely on the fact that the defence did not specifically deny the
minority of the victim, especially in view of the settled law with regard to the
acceptability of the ossification test.
18. It is a settled position of law that a margin of two years on either side is to
be considered when age is estimated on the basis of medical evidence, i.e, X-
ray report, commonly known as an ossification test.
19. It is well settled that an ossification test, though is a guiding factor for
determining the age, the same is not conclusive or incontrovertible and leaves a
margin of error and the benefit of doubt with regard to the age of the victim
always goes in favor of the accused.
20. In this regard, learned counsel for the appellant has relied upon the
decision of a Co-ordinate Bench of this High Court in the case of Sri Utpal
Debnath Vs. The State of Assam & Others , reported in 2023 (0)
Supreme (Gau) 259, (Criminal Appeal No. 276 of 2019), decided on
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04.05.2023, wherein it has been observed as follows:
“26. As regards the evidence of PW-9 i.e. Dr. Atreyee Goswami, who
examined the victim girl, is concerned, it appears that she exhibited only
medical examination report as Ext. 4 and on perusal of medical
examination report, it appears that the Column No. 3 which mentions
about the age of the patient, has been kept unfilled and nothing has been
mentioned therein. It also appears that doctor has opined that the age of
the victim is below 18 years (16 to 17 years) as per the report of
radiologist, though no separate report of radiologist has been exhibited in
this case. Even if, we consider the opinion of PW-9 as regards the age of
the victim, which was based on radiological examination of the victim, it is
an accepted fact that the age determined on the basis of radiological
examination may not be an accurate determination of the age and
sufficient margin of error on either way has to be allowed. The Hon’ble
Supreme Court of India, in several of its decisions, has laid down that in
case of ascertainment of age by radiological examination, a margin of
error of two years on either side has to be reckoned with.
27. In the instant case, as no certificate of age has been exhibited,
during trial, by any of the prosecution witnesses, the doctor’s opinion is
the only evidence, available in, the present case which may be relied
upon. In such a case a margin of error has also to be reckoned with. It is
also a settled principle now that in case of determination of age on the
basis of the opinion of the radiologist, the benefit of the margin of error
should always go to the accused. In the instant case, the doctor has
opined that the age of the victim was below 18 years (16 to 17 years) and
if we add 2 (two) years of margin of error to 16 (sixteen) to 17
(seventeen) years, it will come 18 (eighteen) to 19 (nineteen) years, in
which case, the victim may not be regarded as a minor as under section
2(1)(d) of the POCSO Act, 2012 a child is defined as any person below the
age of 18 years. Same is also the case in case of offence under Section
363 of the Indian Penal Code. In view of above circumstances, this Court
Page No.# 12/14is constrained to hold that the prosecution side has failed to prove that
the age of the victim was less than 18 years when the alleged offence was
committed and the benefit of the same would go to the accused (present
appellant).”
21. Further, in the cited case of Alamelu & Another Vs. State
Represented by Inspector of Police reported in (2011) 2 SCC 385, the
Hon’ble Apex Court held as follows:
“46. In addition, the High Court failed to consider the expert evidence
given by PW13 Dr. Manimegalaikumar, who had medically examined the
victim. In his cross-examination, he had clearly stated that a medical
examination would only point out the age approximately with a variation
of two years. He had stated that in this case, the age of the girl could be
from 17 to 19 years. This margin of error in age has been judicially
recognised by this Court in Jaya Mala v. Govt. of J&K. In the aforesaid
judgment, it is observed as follows:
“9…. However, it is notorious and one can take judicial notice that
the margin of error in age ascertained by radiological examination is
two years on either side.”
47. We are of the opinion, in the facts of this case, the age of the girl
could not have been fixed on the basis of the transfer certificate. There
was no reliable evidence to vouchsafe the correctness of the date of birth
as recorded in the transfer certificate. The expert evidence does not rule
out the possibility of the girl being a major. In our opinion, the prosecution
has failed to prove that the girl was a minor, at the relevant date.”
22. In the instant case, although the medical evidence points to a range of 15
to 17 years as the age of the victim, even discounting the fact that the
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radiologist who conducted the X-ray examination has not been examined, it can
be safely held that by applying the margin of two years, it is quite possible that
the age of the victim could extend to below 19 years, thereby placing her in the
category of a major.
23. Hence, I am of the considered opinion that Section 4 of the POCSO Act
would not be attracted in the facts of the present case and the evidence and the
burden of proof has to be considered in the light of Sections 375/376 IPC.
24. The victim in her evidence had stated that on the day of occurrence, she
had a quarrel with her mother which according to PW-2, i.e., the mother, was on
account of her relationship with the accused because of which she had beaten
the victim on that day and soon thereafter, the victim had left with the
accused/appellant on his motorcycle. The victim stated during cross-
examination that the accused appellant had not taken her by force. The rest of
her evidence before the court reveals that sexual intercourse took place
between them but there is no allegation of any force being used by the accused
nor was there any reference to any promise of marriage. Since the victim cannot
be treated as a minor, the aforesaid acts of sexual intercourse must be regarded
as consensual. The evidence of the victim herself appears to be self-
contradictory inasmuch as, during her cross-examination, she denied having
been tutored by the family members of the accused before recording of her
statement under 164 Cr.P.C and that she had given the said statement out of
her own will wherein she denied the act of sexual intercourse with the accused.
Yet, at the same time she denied that the accused did not perform sexual
intercourse with her or that she had not slept with the accused in the house of
his aunt as well as in the house of his friend at Lilabari while at the same time
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denying that she had a love affair with the accused. The victim further
contradicts herself by stating in the same breath that in the house of the friend
of the accused at Lilabari, she slept with the wife of the accused immediately
after stating that she had slept with the accused in the house of his friend at
Lilabari. There is no explanation as to how the wife of the accused turned up at
Lilabari and it is left to surmise that she had actually referred to the wife of the
friend of the accused.
25. Be that as it may, in view of the fact that the prosecution failed to prove
that the victim was a minor coupled with the fact that sexual intercourse
between the victim and the accused, even if is accepted to have taken place,
was consensual in nature and devoid of any force or deceitful means being
applied or resorted to by the accused/appellant, no liability under section
375/376 IPC can be fastened upon the accused/appellant.
26. In view of the above, the impugned judgment cannot be sustained and
accordingly the same as well as the sentence imposed is hereby set aside. The
appeal stands allowed and accused set at liberty forthwith.
27. Send back the TCR.
JUDGE
Comparing Assistant