Page No.# 1/5 GAHC010159202024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/735/2024 MD. ARIFUL HOQUE CHOUDHURY S/O MD. ABDUL KALAM, VILL.- DAULATPUR, P.S.- BIHUPURIA, DIST.- NORTH LAKHIMPUR, ASSAM, PIN- 784161. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:KULSUMA BEGUM W/O GULJAR ALI VILL.- DAULATPUR P.S.- BIHUPURIA DIST.- NORTH LAKHIMPUR ASSAM PIN- 784161 Advocate for the Petitioner : MR J MOLLAH, MR J DAS,MS. S P DAS,MRS. A BHANU,A. N. H PHOM Advocate for the Respondent : PP, ASSAM, Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 04.02.2026 (M. Zothankhuma, J) Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. I. U. Choudhury, appearing for the applicant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor assisted by Ms. R. Das, appearing for the State respondent and Mr. J. Ahmed, learned counsel appearing for the respondent No. 2. 2. The learned counsel for the applicant submits that the applicant has been sentenced to undergo rigorous imprisonment for a term of 20 years and pay a fine of Rs. 40,000/-, in default, to undergo simple imprisonment for 7 months under Section 4 of the POCSO Act, 2012, on being convicted vide Judgment & Order dated 11.07.2024 passed by the learned Special Judge (POCSO), Lakhimpur at North Lakhimpur in Special (POCSO) Case No. 17/2016, arising out of Bihpuria P.S. Case No. 424/2016. The applicant’s counsel submits that though the learned trial Court had convicted the applicant under Section 4 of the POCSO Act, 2012, the evidence recorded by the learned trial Court goes to show that the offence under Section 4 of the POCSO Act, 2012 has not been proved beyond all reasonable doubt against the applicant. He submits that while the FIR was submitted by P.W.2 on 21.06.2016 in relation to the allegation of rape that had occurred on 18.06.2016, the medical examination of the victim had been done on 19.06.2016 on the alleged requisition of the Bangalmara police outpost. The Page No.# 3/5 applicant’s counsel submits that when the FIR dated 21.06.2016 had been entered into the General Diary register of the Bangalmara police outpost on 21.06.2016, there was no basis for the said police out post to requisition the medical examination of the victim on 19.06.2016. He further submits that the allegation against the applicant is that the applicant had raped the victim while she was sleeping next to her younger sister, i.e., P.W.7. Further, P.W.2, who is the informant and the elder sister of the victim, was also sleeping in the adjacent room. He submits that it is unbelievable that rape would have occurred when the younger sister of the victim was sleeping next to the victim and the elder sister was sleeping in the next room. He accordingly submits that there could not have been any finding to the effect that the applicant had raped the victim. He accordingly submits that the sentence should be suspended and the applicant should be released on bail. 3. Ms. B. Bhuyan, learned Additional Public Prosecutor appearing for the State respondent submits that there is no infirmity with the finding of guilt by the learned trial Court, inasmuch as, there is no reason to doubt the evidence of the victim. Further, though the FIR shows that it had been made on 21.06.2016, medical examination of a victim can be done prior to the filing of an FIR in terms of Section 27(1) of the POCSO Act, 2012. 4. She submits that though there might be delay in lodging an FIR, the delay in a rape case involving a child cannot be a reason, not to believe the testimony of the victim that she had been raped. Further, in terms of the ossification test conducted on the victim, her age was between 9 to 15 years and as such, there are no infirmity in Page No.# 4/5 the conviction of the applicant under Section 4 of the POCSO Act, 2012. 5. Mr. J. Ahmed, learned counsel appearing for the respondent No. 2, submits that as per instructions received by him from the respondent No. 2, the FIR had been lodged one day after the incident of rape had occurred, i.e., on 19.06.2016. However, the date has been wrongly recorded in the FIR as 21.06.2016. 6. We have heard the learned counsel for the parties. 7. The FIR which has been exhibited shows that the same had been made on 21.06.2016. Further, the FIR had been entered in the GD as GDE No. 362 dated 21.06.2016. As such, we have got no reason to take a view that the FIR was filed on a date other than 21.06.2016. 8. The medical examination of the victim had been done on 19.06.2016 and the form used by the doctor shows that it had been done on the basis of a requisition made by the Bangalmara police outpost. However, there is nothing in the evidence recorded by the learned trial Court, to show that any requisition had been made by the Bangalmara police outpost on 19.06.2016 for having the victim examined by a doctor on the said date. The evidence adduced by the learned trial Court in respect of the victim is basically to the effect that she had been raped by the applicant. 9. On considering how the medical examination of the victim had been done in the absence of any basis for requisition by the police, we are of the view that till the same is decided at the time of final hearing of the case on merits, the applicant should be released on bail. Page No.# 5/5 10. The applicant is accordingly released on a bail bond of Rs. 50,000/-, with one surety of like amount to the satisfaction of the learned trial Court. Consequently, the sentence awarded to the applicant in relation to the impugned Judgment & Order dated 11.07.2024 passed by the learned Special Judge (POCSO) Lakhimpur at North Lakhimpur in Special (POCSO) Case No. 17/2016 is hereby suspended, till disposal of the accompanying appeal. 11. Interlocutory Application is accordingly allowed and disposed of. JUDGE JUDGE Comparing Assistant