Page No.# 1/5 GAHC010166982023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/683/2023 PARAMESH BARMAN S/O LATE KAMALA BARMAN VILL.- BHAJKUCHI P.S.- TIHU DIST.- NALBARI ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY PUBLIC PROSECUTOR. 2:RUPALI HAZARIKA W/O DINESH HAZARIKA VILL.- BHOJKUCHI P.S.- TIHU DIST.- NALBARI ASSAM. ------------ Advocate for : MS P DASGUPTA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. Linked Case : Crl.A./291/2023 PARAMESH BARMAN S/O LATE KAMALA BARMAN, VILL.- BHAJKUCHI, P.S.- TIHU, DIST.- NALBARI, ASSAM. Page No.# 2/5 VERSUS THE STATE OF ASSAM AND ANR. REP. BY PUBLIC PROSECUTOR. 2:RUPALI HAZARIKA W/O DINESH HAZARIKA VILL.- BHOJKUCHI P.S.- TIHU DIST.- NALBARI ASSAM Advocate for the Petitioner : MS P DASGUPTA, MR A HOSSAIN,W.H. DEVI,MR. N ALI,MR. J I BORBHUIYA,MR S PAUL,MS F BEGUM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 20.08.2026 (S. Jahan, J) Heard Mr. J.I. Borbhuiya, learned counsel appearing for the applicant. Also heard Ms. A. Begum, learned Addl. P.P for the State and Dr. P. Agarwal, learned counsel appearing for the respondent No. 2. 2. By this application filed under Section 430 of the BNSS 2023, the applicant has prayed for suspension of the sentence and for allowing him to go on bail. By the Judgment dated 29/05/2023 passed by the learned Special Judge (POCSO), Nalbari in Spl. (P) Case No.32/2021, the applicant was convicted under Section 448 of the IPC, read with Section 4(2) of the POCSO Act. However, the applicant Page No.# 3/5 was acquitted of the charge under Section 376(3) of the IPC. The applicant was thereafter sentenced to undergo simple imprisonment of 1 year under Section 448 of the IPC and he was further directed to undergo simple imprisonment for a period of 20 years, with a fine of Rs.2,000/- and in default, to undergo simple imprisonment for another period of 3 months. 3. The learned counsel for the applicant submits that there are discrepancies in the statement of the prosecutrix. He submits that although the victim had stated in her examination-in-chief that when she was putting on her clothes, the applicant came, entered her room and by embracing her removed her clothes and pushed his penis into her vagina. But, in the cross-examination she stated that she had not revealed to the police during her statement under Section 161 Cr.P.C about the said facts which she had stated in her examination-in-chief. He also submits that the medical evidence also does not corroborate the statement of the victim, due to the fact that the Doctor opined upon examination of the victim that her hymen was intact. The learned counsel for the applicant also submits that although the radiological evidence as deposed by the Doctor demonstrated that the victim was above 14 years and below 16 years and also that the Birth Certificate which was stated to have been seized by the police shows that victim was minor, but by taking two years on either side, which goes to the benefit of the accused person along with the fact that the Birth Certificate was not exhibited, the age of the victim is not proved. 4. On the other hand, Ms. A. Begum learned Addl. P.P for the State submits that there is consistency of statement of the victim before all the authorities, i.e, Police, Magistrate and the Trial Court. She submits on perusal of the case diary that although the victim in her cross-examination before the Trial Court had Page No.# 4/5 stated that she did not state before the police the facts she narrated in her examination-in-chief, but in her statement recorded by the police under section 161 of Cr.P.C, the victim had stated that bad act was committed upon her by the applicant. As such, she submits that although in her cross-examination the victim had stated that she had not stated the said facts, but the same is not the real fact of the case. 5. Dr. P. Agarwal, learned counsel appearing for the respondent No. 2 submits that there are enough evidence and a number of flaws in the instant case. She submits that the statement made by the victim under section 164 of the Cr.P.C before the Magistrate is corroborative to the statement of the victim before the Trial Court. She also submits that the seizure list also shows that the victim was minor at the time of occurrence. She has also pointed out a defect in the petition itself filed by the applicant to the effect that only the sentence order is challenged without however, challenging the conviction given to the applicant. 6. We have heard the learned counsels and have gone through the records. 7. It is noticed that the statement of the victim was recorded by the police on 16/09/2021 and the contradiction which was proved by the victim in her cross- examination before the Trial Court stands in a different language, but the root of the case remains the same. As such, it can be safely stated that the victim had stated before all the authorities about the actions of the applicant with regard to penetrative sexual assault committed by the applicant upon the victim. Furthermore, it is a settled position of law that even slightest of penetration will attract the definition provided under Section 3 of the POCSO Act and although the report of the Doctor shows that the hymen was intact, the offence under Page No.# 5/5 Section 3 of POCSO Act can still be attracted. 8. In view of the same and as the main appeal is already fixed for hearing on 14/10/2026, this Court does not deem it fit to enlarge the applicant on bail at this stage. 9. Accordingly, the I.A. stands rejected. JUDGE JUDGE Comparing Assistant