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High Court Lays Down The Elements Of The Commission Of Offence Under Pocso Act

diya dhall ,
  04 October 2023       Share Bookmark

Court :
Gauhati High Court
Brief :

Citation :
Crl.A.197/2021 With I.A.(Crl.)521/2021

Date of Order:

1th September, 2023


Hon’ble Mrs. Justice Susmita Phukan Khaund



Respondent: State of Assam and Anr


The court held that the prosecution failed to establish the accused's guilt of the offense under Sections 363 and 366 of the IPC when read in conjunction with Section 4 of the POCSO Act.


Section 363 of the Indian Penal Code - Punishment for kidnapping

Section 366 of the Indian Penal Code - Kidnapping, abducting or inducing woman to compel her marriage, etc.

Section 4 of the Protection of Children from Sexual Offences Act- Punishment for penetrative sexual assault.


  • The victim was a Class X student who was 16 years old, according to the prosecution's brief case. At around 4 AM on July 25, 2018, the victim was reported missing.
  • The appellant Gautam Biswas paid the informant a guest visit the day before, on July 24, 2018, and stayed the night there. The victim was coerced into eloping with the accused-appellant. The informant went to the house of the accused person together with her father, four or five neighbors, and her daughter, who was with the accused. Family members of the accused person had chased the informant away.
  • The informant submitted the FIR.


Whether the accused could be held liable under the relevant provisions of IPC and POCSO?


  • The victim was a major at the time of the occurrence and had eloped with the accused on her own will, according to the learned defence attorney representing the accused.


  • According to the court, it is clear that the victim in this case traveled with the accused of her own free will and was not coerced into doing so. The Medical Officer was unable to find any indication of a sexual assault. According to the POCSO Act, the accused is not found guilty of the offense based on the victim's inconsistent claims. The victim's age is estimated by the Medical Officer to be between 17 and 18 years old.
  • It should be noted that the victim did not mention sexual assault when her evidence-in-chief was recorded, but she did so during her re-examination. This contradiction was revealed during the victim's cross-examination after the Court was informed that the victim had not mentioned sexual assault by the accused in her earlier statement under Section 164 of the Criminal Procedure Code. It is appropriate to repeat that the victim's testimony is unreliable.
  • As a result, it is determined that the prosecution failed to establish the accused's guilt of the offense under Sections 363 and 366 of the IPC when read in conjunction with Section 4 of the POCSO Act.
  • The judgment and order from September 28, 2021, were reversed and it was ordered that the accused must be immediately released.


Children are intended to be protected from all forms of sexual abuse by the Protection of Children from Sexual Offences Act, 2012 (the "POCSO Act, 2012"). It stipulates severe penalties for crimes against children, ranging from the death penalty in cases of extreme penetrative sexual assault to a minimum sentence of 20 years in jail. Sections 375, 354 and 377 of the Indian Penal Code, 1860 define child sexual abuse as an offense. Both the modesty and protection from sexual abuse of male children are not covered by these regulations. Kidnapping and abduction are offenses covered in Sections 359 to 369 of the Indian Penal Code, 1860. The primary goals of implementing these rules are to uphold citizens' right to personal liberty, prevent kidnapping of children for nefarious and immoral motives, and defend guardians' and parents' custody rights.

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