Judgment & Order (Cav):

Rajesh Mazumdar, J.

1. This is an appeal assailing the Judgment & Order dated 09.02.2024 passed by the learned Addl. Sessions Judge-Cum-Special Judge, POCSO, Kamrup (M) in Sessions Special Case No. 61/2021, by which the appellant herein had been found guilty of committing an offence under Section 376(2)(n)/376(AB) of IPC read with Section 6 of the POCSO Act, 2012 beyond all reasonable doubt and he had been sentenced to undergo R.I for 30 years (Thirty years) and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand), in default, to undergo S.I for another 3 (three) months for offence under Section 6 of POCSO Act, 2012. The fine amount, when deposited, was to be given to the victim girl.

2. Facts of the case in brief are that an FIR was lodged on 19.08.2021 before the O/C all Women P.S by the then Chairperson of Assam State Commission for Protection of Child Rights, alleging inter alia that a minor victim girl was brought to their office by Mr. Gopal Sarma, who was the landlord of the accused. It is further alleged in the FIR that the accused had been committing rape upon the victim girl (his stepdaughter) for the last 7 years. The victim was handed over to Childline, Guwahati.

3. On receipt of FIR, O/C of All Women P.S registered a case bearing No. 196/2021 U/s 376(2)(n)/376 (AB) IPC R/w section 4/6 of the POCSO Act, 2012 and investigation was carried out. After completion of the investigation, the Investigating Officer of the case submitted a charge sheet against the accused Litan Saha under Section 376(2)(n)/376 (AB) IPC R/w section 4/6 of the POCSO Act, 2012.

4. On receipt of the charge sheet, the trial was taken up by the learned Special Judge, POCSO, Kamrup (M). Finding sufficient materials, a charge was framed against the accused person U/s 376(2)(n)/376(AB) IPC R/w section 6 of the POCSO Act, 2012. Charge under the aforesaid section was read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried.

5. The prosecution examined as many as 6 witnesses and exhibited 9 documents. The defence plea was of complete denial of any guilt, and the defence did not adduce any witness on its behalf. The statement of the accused person was recorded under section 313 Cr.P.C.

6. The learned Trial Court framed the following points for determination:-

                   1. Whether the accused person, for the last 7 years, had been committing the offence of rape repeatedly upon the minor victim girl (stepdaughter of the accused) and thereby committed the offence punishable U/s 376(2)(n) and Section 376AB of IPC?

                   2. Whether the accused person, for the last 7 years, had been committing the offence of aggravated penetrative sexual assault on the minor victim girl of the case( the victim girl being the stepdaughter of the accused person) and thereby committed offences punishable U/s 6 of the POCSO Act, 2012?

Evidence led by the prosecution:

7. PW-1, the informant, who was the Chairperson of Assam State Commission for Protection of Child Rights at the time of lodging of the FIR, deposed in her evidence that on 17th August, 2021, on the basis of information received, she wrote a letter to the Commissioner of Police to take action on the allegation made by a woman that her tenant had been sexually assaulting his minor step daughter. The victim girl was sent to the Childline Office situated at Ulubari and later on admitted to Kalyani Niwas Children's Home for Girls situated at Rupnagar.

She deposed in her cross-examination that she did not mention any woman informing her about the occurrence in her FIR though she had deposed in her evidence that, as she was in office on 17.08.2021, a woman came up and told her verbally about the occurrence. She did not visit the place of occurrence personally.

8. PW 2 deposed in his evidence that the accused person was a tenant in their house. The victim girl had good terms with his wife, and one day she told his wife about the occurrence that had taken place between her and the accused person. His wife told him about the same. He and his wife met the informant, and they took the victim girl to the office, where she had a talk with the informant. Later on, they were asked to hand over the victim to Childline. The victim girl told them that the accused person had misbehaved with her and had committed an indecent act with her.

9. PW 3, the victim girl deposed in her evidence that the accused is her stepfather. Her original father used to assault her mother, and so her mother came to Guwahati and started working as a helper in the house of other people. She married the accused, and at that time, the victim was about 5 to 6 years old. The accused started doing indecent acts with her after 2 years of his marriage. He committed rape upon her on several occasions. At that time, as she was a very small girl, she could not distinguish between a bad act and one that was not. Two days prior to the lodging of FIR, one lady (who later deposed as PW4) saw the accused person committing an indecent act with the victim girl. She narrated the whole occurrence to PW 4. Later on, she was taken to the office of Sishu Kalyan, and then she was initially kept at Kalyani Niwas for about 1 month and then at Seven Sisters Home. Her original father expired, and she has one younger brother who resides with her grandmother. She further deposed in her evidence that after institution of the case, she was brought to the Court and her statement U/s 164 Cr.P.C was recorded. Her original birth certificate was in the custody of her mother.

During her cross-examination, she deposed that her mother used to go out for work at about 7 am and return back in between 4 pm and 6:30 pm. She could come during the afternoon only on some occasions. The accused used to work as a painter, and sometimes he used to come home in the afternoon for lunch. In the year 2020, her mother left the house of the accused, as there was some altercation with him. The victim girl and the son of Litan Saha stayed there. Prior to one and a half months of lodging FIR, they came to stay in the house of PW 4 on rent. The husband of PW 4 and their 4-year-old son resided in the house, and the victim girl had visiting terms with them. On 14th August, she went to their house as the son of PW 4 had his birthday on 15th August. The brother of PW 4 also came on that day for the birthday celebration. The victim girl denied the suggestion that the planning of lodging a false case was made in the house of Jahnabi Sarma on 14th August itself, and this false case was lodged.

10. PW 4 deposed in her evidence in chief that the accused resided on rent in their house, and as the behaviour of the accused person was not good, she had asked him to vacate the house. The victim girl requested PW 4 not to send her away, and when PW 4 asked her the reason, the victim girl told her that the accused person had been committing rape upon her since she was seven years old. Thereafter, the victim girl narrated the occurrence to her mother, her aunt (masi) and her husband. The relatives of the victim girl requested them not to tell the occurrence to others, but she herself, along with the victim girl, went to the Child Line Office and an FIR was lodged accordingly.

She deposed in her cross-examination that no rent agreement was made in between them and the accused. The accused used to stay back at home for most of the time, and she did not see the victim girl going to school. The accused also had one son, and he used to go to school. Till the date of her son's birthday, PW 4 had no knowledge about the occurrence.

11. PW 5 deposed in her evidence that on 20.08.2021, she was posted as GDMO (General Duty Medical Officer) in the Department of Forensic Medicine, Gauhati Medical College and Hospital. On that day, a girl came for medical examination at 12.20 pm in connection with All Women P.S Case No. 196/2021 under section 376 (c)(n)/376 AB R/w section 6 of the POCSO Act. The age of the victim was about 16 years. On physical examination, she had found the presence of spermatozoa in the vaginal swab. On the basis of physical examination and laboratory investigations done on the victim girl, she was of the opinion that evidence of recent sexual intercourse found on her person and Genital examination findings were suggestive of prolonged, continuous sexual intercourse.

12. PW-6, the I/O of the case deposed in her evidence that on 19.08.2021, FIR was lodged before the Commissioner Of Police, Guwahati by the Chairperson Assam State Commission for Protection of Child Rights, Beltola, Guwahati and the same was forwarded to Officer in Charge, All Women Police Station and registered All women police station case No. 196/2021 and U/s 376(2)(n)/376(AB)IPC r/w 4/6 of the POCSO Act. After taking charge of the investigation, she recorded the statement of the victim and sent her for medical examination. The statement of the victim girl was also recorded under section 164 Cr.P.C. She also recorded statements of witnesses found available at the place of occurrence. The accused person was arrested and produced before the Court, and thereafter he was sent to judicial custody. As per the case record, she collected the medical examination report of the victim girl. She also seized the birth certificate of the victim girl vide seizure list.

She deposed in her cross-examination that on 19.08.2021 at about 12:25 pm, she had received the case diary. She did not record the statement of the informant. She did not record the statements of other witnesses, neighbors, as they were not interested, but she had not mentioned the names in the case diary. The victim girl narrated the incident to her mother in the presence of PW 4. She did not enquire from the office of the Registrar of Birth and Death regarding the authenticity of the birth certificate. Except for the birth certificate, she did not seize anything else.

ACCUSED STATEMENT RECORDED UNDER SECTION 313,Cr.P.C:

13. After the prosecution had closed its evidence, the accused was examined under the provisions of Section 313 of the Cr.P.C. During his statement, he had denied all the allegations against him, and when asked if he had anything to say about the occurrence, he stated that he had been falsely implicated in the case. The victim girl had love affairs with another boy, and she very often went to meet him. He objected to the affair of the victim girl, and the case was lodged falsely only to take revenge upon him, as he narrated the occurrence to her mother regarding the love affairs of the victim girl. The victim girl had also falsely told their neighbors that he had committed rape. But his wife knows that he did not commit any such occurrence, and in fact, he had informed his wife that the victim girl used to roam with other boys. He is innocent, and he did not commit any offence. The victim girl also received various valuable gifts from her boyfriend, like watches, mobile phones, etc.

After hearing arguments, the learned Trial Court found the petitioner guilty of committing the offences as stated hereinbefore. He was accordingly convicted and sentenced.

14. The submissions of the learned counsel for the contesting parties have been duly considered.

The crux of the submissions by the learned counsel for the appellant was with regard to the absence of any reliable proof that the prosecutrix was a child at the time of the alleged offence and that the evidence of the prosecutrix not being of sterling quality, the same could not have been the basis for conviction of the appellant herein. The learned counsel also relied upon the absence of a DNA/Forensic report to link the appellant to the spermatozoa allegedly recovered from the victim’s body. The above lacunae, according to him, would be fatal to the projected case of the petitioner.

The learned Additional Public prosecutor has submitted that the evidence of the prosecutrix had not wavered during her cross-examination and therefore, there is no reason to reject her evidence. The victim has been consistent in her assertions that the accused, who was her stepfather, had been committing penetrative sexual assault upon her since the past 7 years, the last being a few days before the matter was brought to the notice of the authorities by her landlord and his wife. The learned counsel, supporting the impugned judgment have submitted that the minor variations in the evidence of the prosecutrix are acceptable, given the human nature to embellish and improve statements, but the same do not potentially weaken her evidence when taken in its totality. They have submitted that the presumption of guilt under the provisions of the POCSO Act could not be shaken by the accused after the prosecution had proved the basic and relevant facts. They have submitted that the appeal deserves a dismissal.

CONCLUSIONS AND REASONS THEREFOR:

15. PW 1 in this case is a hearsay witness. PW 2 had first heard the plight of the victim from his wife and thereafter from the victim and had taken her to the state Commission office, where the process of informing the Commissioner of Police had been initiated, and the letter written by PW 1 on 17.8.2021 had been registered as a FIR on 19.8.2021. In the meantime, the victim was forwarded to Childline, on 17.8.2021 itself and she was later shifted to Kalyan Niwas and thereafter to Seven Sisters Home. She was medically examined on 20.8.2021, where not only evidence of recent sexual intercourse, in the form of spermatozoa in her person, was detected, but medical examination of her organs also suggested prolonged and continuous sexual activity.

16. The original birth certificate of the victim had been seized by the investigating officer and had been given in custody to the mother of the victim. The mother did not appear during the trial despite being summoned. There was no attempt on the part of the prosecution to prove the age of the victim either by calling for her school records although the victim in her statement recorded by the investigating officer and also her statement recorded under Section 164, Cr.P.C had clearly indicated that she had attended school. The victim had alleged that the sexual assault had commenced when she was in Class IV or V, when she was about 9 or 10 years old. It has also come on record that the birth certificate of the victim had been seized, there was no attempt by the prosecution to have the date of birth proved by calling for the relevant custodian of records. The learned Trial Court has arrived to a conclusion that the victim was a minor at the time of lodging of the FIR only on the basis that the victim girl, on her appearance before the Court, had produced an ADHAAR card where in her date of birth had been mentioned.

17. The Hon'ble Apex Court, Jarnail Singh v. State of Haryana, reported in (2013) 7 SCC 263, has observed:

                   "22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as “the 2007 Rules”). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:

                   “12.Procedure to be followed in determination of age.—(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

                   (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

                   (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining —

                   (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

                   (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

                   (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

                   (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

                   (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.

                   (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.

                   (6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

                   23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion."

18. What emerges from above discussion is that, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007, has assigned, in descending order, the importance and primacy as proof of age firstly to the Matriculation or equivalent certificate, secondly, date of birth as recorded by school first attended and thirdly, certificate of birth given by Corporation, Municipal Authority or Panchayat. The above requirement is reemphasized in the case of P. Yuvaprakash v. State represented by Inspector of Police, reported in 2023 SCC Online 846, which is a case directly dealing with dispute with regard to age of a person in the context of he or she to be victim of offence under the POCSO Act.

19. In Birka Shiva vs State of Telangana, reported in 2025 SCC OnLine SC 1454, it has been held :

                   “9. ………. Thus, while examining the issue at hand, on the anvil of the principles elucidated above, it is essential to notice that the prosecution has failed to toe the line of legal requisites. There is nothing on record to corroborate the date of birth of the victim as recorded in the birth certificate (Ex.P11) issued by the school. Therefore, it cannot be relied upon to definitely determine the age of the victim and held with certainty that the victim was below sixteen/eighteen years of age.

                   12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the prosecutrix was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor.

20. In Sunil v. State of Haryana, reported in (2010) 1 SCC 742, the Apex Court has held that in a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.

21. In the set of facts of the present case, the prosecution had failed to bring in any evidence worth its name to either prove the date of birth of the victim or that she was minor on the date of lodging of the FIR. The learned Trial court depended on an Aadhaar Card, which was neither exhibited nor proved. Such manner of assumption of date of birth or of age in a criminal trial cannot stand the scrutiny of law and therefore, we are of the considered opinion that the prosecution had miserably failed to prove the basic fact that the victim was a minor at the time when she was allegedly raped by the accused immediately before the lodging of the FIR.

22. The learned Trial court has also held the accused guilty of offences under section 376(2)(n), that is of repeated rape, and Section 376(AB), i.e. of committing rape upon a minor below 12 years of age. The reliability of the PW 3, i.e. the victim, therefore, assumes paramount importance in the present case since there is no corroborative evidence for the offences committed prior to the immediate incident which led to the lodging of the FIR. Her testimony regarding the accused subjecting her to repeated offence of rape from the age of 9/10 years stands alone, without any corroboration, The medical opinion which indicated presence of spermatozoa on the date of examination and suggested prolonged and continuous sexual intercourse, in the absence of any evidence that the spermatozoa could be linked to the accused, does not, as it cannot, implicate the accused ipso-facto. It is a settled position in law that the sole testimony of a victim of sexual harassment can form the basis of a conviction for committing the offence of rape, however, this Court cannot loose sight of the caveat attached that, in such cases, the evidence of the victim has to be of “sterling quality”, wholly reliable and free of doubts and improbabilities.

23. In Narender Kumar v. State (NCT of Delhi), reported in (2012) 7 SCC 171, the Apex Court held as follows:

                   “28. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.

                   29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide Tukaram v. State of Maharashtra [(1979) 2 SCC 143 : 1979 SCC (Cri) 381 : AIR 1979 SC 185] and Uday v. State of Karnataka [(2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639] .) 30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected. 31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtues/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.

24. In Nirmal Premkumar v. State of T.N., reported in (2024) 20 SCC 293, the Apex Court held:

                   24. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.”

25. A scrutiny of the evidence of PW 3 is therefore called for in this case. She has stated both in her statement made under Section 164, Cr.P.C and her evidence in chief that PW 4 had seen the accused committing rape upon her and upon her enquiry, the victim had disclosed that the accused had been raping her since long. While in the statement under Section 164, Cr.P.C, which was recorded on 19.8.2021, she stated that PW 4 had seen the incident on 17.8.2021, in her evidence in chief, she stated that PW 4 had seen the incident two days prior to lodging of the FIR, which would be on 15.8.2021. PW 4 was specific in her statement that when she had asked the accused to leave the tenanted premises, the victim had requested her not to ask her to leave and upon asking the reason, she told PW 4 that the accused had been committing rape upon her since she was 7 years old. The PW 4 was specific in her statement that she did not know about the incident prior to the birthday of her son, which has come in evidence to be on 15.8.2021. It is also in the evidence of PW 2 that PW 4 had come to know about the incident from the victim girl since she had good terms with her. The evidence of PW 3, in asserting that the PW 4 was an eye witness to one of incidents of rape and coaxed her to divulge her plight, when the evidence of PW 4 does not give any such indication, the same cannot be held to be a minor discrepancy. Rather such discrepancy would have the effect of casting a cloud of doubt on the reliability of the evidence led by the prosecutrix.

26. It has also been stated by the prosecutrix that initially she did not understand bad from good but later she gradually understood. She has stated that her mother left the accused in the year 2020 after a quarrel and the victim and her stepbrother chose to stay back with the accused. This court finds that, in the circumstances that the victim claimed to have prevailed at that time, it is highly improbable that, once the victim understood good from bad, she would yet refrain from complaining to her mother and that she would have chosen to stay back with the accused when she had the opportunity to escape from the vice of the accused.

27. We have also noticed that the mother of the victim had, as per the version of the prosecutrix herself, stayed with her, along with the accused till the 2020. The statement of the said mother was recorded during the investigation which we have perused. The statement reveals the shock of the mother of the victim on the allegations raised by her and the mother had even stated that the accused loved her like his own daughter. She did not respond to the summons to adduce evidence as a prosecution witness.

28. In view of the above finding, we are of the considered opinion that the evidence of the prosecutrix cannot be said to be of “sterling quality” and therefore, the allegation that the victim had been subjected to rape over a period of time since two years after the accused married the mother of the victim, cannot be held to be proved and the benefit of doubt has to favour the accused. The conviction handed out by the learned Trial Court to the accused for committing offences under Section 376(2) (n) and Section 376 (AB) therefore are not sustainable in law.

29. This Court also notices that the victim had been sent to Childline on 17.8.2021 and thereafter, she remained in shelter homes, away from the accused. Her medical test was conducted on 20.8.2021, when spermatozoa were found in her body. The investigating agency did not attempt to link the evidence so recovered to the accused. No DNA tests were conducted. The explanation offered by the accused, that the victim had boyfriends with whom she often goes out, is neither impossible nor highly improbable. Considering the above, in juxtapose with the failure of the prosecution to prove the minority of the victim and the failure to prove the involvement of the accused in any incident of sexual assault on the victim, we have no hesitation in granting the benefit of doubt to the accused/appellant in the present case.

30. The impugned Judgment & Order dated 09.02.2024 passed by the learned Addl. Sessions Judge-Cum-Special Judge, POCSO, Kamrup (M) in Sessions Special Case No. 61/2021, is accordingly interfered with and the accused/appellant is acquitted giving him the benefit of doubt.

31. The petitioner be released from custody forthwith, if not required to be in custody for any other case.

32. Trial Court records be returned forthwith.

33. Registry shall communicate this order to the jail authorities and the Trial Court during the course of the day.

34. Appeal stands allowed to the extent indicated above.