Page No.# 1/3 GAHC010091992022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/216/2022 AMULYA PATHAK S/O DHARANI PATHAK RESIDENT OF SEWNAGAON PS AND DIST BONGAIGAON ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY PP ASSAM 2:SMTI NOMUNA PATHAK W/O SRI PABITRA PATHAK R/O VILLAGE CHAUNAGAON PO MULAGAON PS AND DIST BONGAIGAON ASSAM ------------ Advocate for : MR. S C BISWAS Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER 02.09.2026 (M. Zothankhuma, J) 1. Heard Mr. S.C. Biswas, learned counsel appearing for the applicant. Also Page No.# 2/3 heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State. 2. This is an application for suspension of the sentence pursuant to the judgement dated 26.04.2022 passed by the learned Special Judge, Bongaigaon, in Special (POCSO) Case No.19 (BGN)/2018, by which the applicant was convicted under Section 376(1) IPC and sentenced to undergo rigorous imprisonment for 12 years, with a fine of Rs. 3000/-, with default stipulation. 3. The applicant's counsel submits that the victim's age has not been determined and the doctor has also stated that he does not know the age of the victim. The learned counsel also submits that just because the hymen of the victim was found to be absent, does not mean that rape had been committed, inasmuch as, absence of hymen can be due to various reasons and cannot be confined only to a case of sexual assault. 4. Mr. R.R. Kaushik, learned Additional Public Prosecutor, on the other hand submits that when the evidence of the victim has been corroborated, there is no requirement of this Court, to go beyond the prima facie case at the time of disposal of an application under Section 430 BNSS. 5. We have heard the learned counsels for the parties. 6. As the victim has stated that the applicant was the person who had raped her and as the doctor has stated that the hymen of the victim was absent, we do not find any reason to allow the present application at this stage. Further, Page No.# 3/3 when the applicant has been convicted under Section 376(1) IPC, the question of whether the applicant was below or above 18 years of age, has got no bearing to the issue at hand, i.e. with regard to the applicability of the POCSO Act on the allegation of rape committed on the victim by the applicant. 7. The application is accordingly dismissed. JUDGE JUDGE Comparing Assistant