The Gauhati High Court set aside the conviction of an appellant under Section 376(3) IPC read with Section 6 of the POCSO Act, after holding that the prosecution’s case was based entirely on the allegation that the victim became pregnant due to sexual assault by the appellant, which was contradicted by the DNA test report.
The Court was hearing a criminal appeal filed under Section 415 of the BNSS challenging the conviction and sentence imposed by the Special Judge, Nagaon.
The FIR alleged that the victim stayed in the house of the appellant for household chores, where she was subjected to sexual assault, leading to pregnancy. After investigation, a charge-sheet was filed under Section 376(3) IPC read with Section 6 of the POCSO Act, and the Special Court convicted the appellant primarily on the testimony of the victim and her statement under Section 164 CrPC.
The defence contended that the statement under Section 164 CrPC was not substantive evidence, the medical report did not indicate recent sexual assault, and the DNA report conclusively showed that the appellant was not the father of the child. The conviction was challenged on the ground that the prosecution failed to establish foundational facts necessary to invoke Section 29 of the POCSO Act.
Eight prosecution witnesses and three defence witnesses were examined. The victim’s school records regarding age and medical reports relating to pregnancy were also exhibited.
The Gauhati High Court, at the outset, examined the victim’s deposition. Before the Trial Court, she stated that the appellant touched her inappropriately, but apart from that, “no other incident had taken place.” The Court noted that this contradicted the allegation that she became pregnant due to penetrative sexual assault by the appellant.
The Court held that a conviction cannot be based solely on the statement recorded under Section 164 CrPC, as it is not substantive evidence and is limited to corroboration or contradiction. The Bench referred to decisions of the Supreme Court, including Ram Kishan Singh v. Harmit Kaur, R. Shaji v. State of Kerala, and Baid Nath Sah v. State of Bihar.
A central factor examined by the Court was the DNA profiling report. It showed that the DNA of the victim’s child did not match the DNA of the appellant. The Bench held that this removed the foundation of the prosecution’s case that the pregnancy resulted from the alleged act attributed to the appellant.
The Court held that although a conviction can be based solely on the testimony of the prosecutrix if it inspires confidence, the present case did not satisfy that requirement, as the victim’s allegation was contradicted by the scientific evidence. The Bench held that the testimony was not reliable and did not support a finding of penetrative sexual assault.
The Court also noted that for the presumption under Section 29 of the POCSO Act to operate, “the prosecution has to prove the foundational facts of the offence against the accused, and if the prosecution is not able to prove the foundational facts of the offence, the presumption u/s 29 of the Act cannot be invoked against the accused”.
Holding that the prosecution failed to prove a case of aggravated penetrative sexual assault, the High Court set aside the conviction and sentence passed by the Special Judge.
The appellant was acquitted and directed to be released forthwith if not wanted in any other case. The criminal appeal was disposed of accordingly.
Cause Title: Abdul Hamid v. The State of Assam & Anr (Neutral Citation: 2025:GAU-AS:14652-DB)
