‘Prosecutrix Seems To Be A Consenting Party’: Gauhati High Court Sets Aside Conviction In 2016 POCSO Case

The Gauhati High Court recently set aside the conviction of an accused under Section 4 of the POCSO Act on the ground that the prosecutrix gave two different versions while giving a statement under Section 164 CrPC and while testifying before the trial court.

The single judge bench of Justice Parthiv Jyoti Saikia said that in the statement under Section 164 CrPC, the prosecutrix simply stated that on the promise of marriage, the appellant - the convict, had sexual intercourse with her and after returning home, she called him over phone but he refused to recognize her. 

"While testifying in the trial court, the prosecutrix has stated that though on the promise of marriage the appellant had sexual intercourse with her, he did not allow her to go out of the room. She also stated in the court that she raised hue and cry over the incident, but the appellant threatened her of dire consequences," said the court.

The court said even her father has stated in his evidence that after two-three days of the incident, she called the appellant over phone but he refused to recognize her and it was after that, he lodged the FIR before police.

"I have reasons to hold that the evidence of the prosecutrix failed to inspire confidence. 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," it said, while setting aside the conviction.

The prosecution evidence failed to prove the offence against the appellant beyond all reasonable doubt, said the court.

The trial court in 2019 had convicted the accused under Section 4 of the POCSO Act and sentenced him to undergo rigorous imprisonment for 10 years with fine.

According to the complaint made before the police, the accused-appellant had sexual intercourse with her on the promise of marriage on August 14, 2016. In her statement before the Magistrate under Section 164 of the CrPC, the girl had said that the appellant was known to her for the preceding one year. In her cross-examination, the prosecutrix stated that though her father was present in the house, she did not tell him anything about the occurrence.

She further admitted that she never stated before police and the Magistrate that the appellant did not allow her to go out of the room or the appellant had threatened her with dire consequences if she had raised hue and cry.

Case Title: Asuruddin Khan v. The State of Assam & Anr.

Coram: Justice Parthiv Jyoti Saikia

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