2016 POCSO Case| Prosecutrix Seems To Be A Consenting Party To The Act: Gauhati High Court While Setting Aside Conviction

“The prosecution evidence failed to prove beyond reasonable doubt that the appellant with a criminal intention had sexual intercourse with the prosecutrix. The prosecutrix seems to be a consenting party to the act of the appellant”.

While holding that the evidence of the prosecutrix failed to inspire confidence, a bench of Justice Parthivjyoti Saikia thus observed, “…On a plain reading of the statement of the victim girl that was recorded under Section 164 CrPC, it appears that the victim girl was a consenting party but her evidence shows that the appellant had forcible sexual intercourse with her…. I have reason to hold that when the appellant refused to recognize a girl, she had embellished her evidence to make sure that the appellant is punished by the court”.

Senior Advocate HRA Choudhury appeared for the appellant and Addl. P.P. P. Borthakur appeared for the respondent.

In the present matter, the appeal was filed under Section 374 CrpC assailing the judgment on conviction dated April 30, 2019, and an order of sentence dated May 3, 2019 of the Special Judge, Barpeta in a POCSO case.

As per the averments made, an FIR was lodged alleging that the accused-appellant had sexual intercourse with the prosecutrix aged 14 years (at the relevant time), on the pretext of marriage.

As per the statements made before the Magistrate under Section 164 CrPC the appellant was known to the prosecutrix for the preceding one year. While further stated that even after having sexual intercourse with her, the appellant refused to recognize her.

However, in her cross-examination, she stated that she never mentioned about the incident to her father even though he was present in the house. While further admitted that she did not mention the fact that the appellant did not allow her to go out of the room and had threatened her with consequences.

The bench thus noted, “…After perusal of the prosecution evidence, it appears that the prosecutrix gave two different versions while giving statement under Section 164 CrPC and while testifying before the court”.

Therefore, after considering the relevant submissions and the statements made the bench was of the opinion that the trial court had erroneously appreciated the prosecution evidence and arrived at incorrect finding, as it failed beyond all reasonable doubt.

Cause Title: Asuruddin Khan v. State of Assam and Anr.