Page No.# 1/5 GAHC010068992024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/439/2024 BICKY GUPTA S/O SHRI JOGDISH GUPTA R/O RAJAMAIDAM DIGAMBAR CHUK NEW COLONY JORHAT P.O. P.S. AND DIST.- JORHAT PIN- 785001 ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P. ASSAM. 2:SANGITA GUPTA W/O SRI UMESH GUPTA R/O RAJAMAIDAM DIGAMBAR CHUK NEW COLONY JORHAT P.O. P.S. AND DIST.- JORHAT PIN- 785001 ASSAM. ------------ Advocate for : MR. P J SAIKIA SR. ADV Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. Page No.# 2/5 Linked Case : Crl.A./140/2024 BICKY GUPTA S/O SHRI JOGDISH GUPTA, R/O RAJAMAIDAM DIGAMBAR CHUK, NEW COLONY, JORHAT, P.O., P.S. AND DIST.- JORHAT, PIN- 785001, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:SANGITA GUPTA W/O SRI UMESH GUPTA R/O RAJAMAIDAM DIGAMBAR CHUK NEW COLONY JORHAT P.O. P.S. AND DIST.- JORHAT PIN- 785001 ASSAM Advocate for the Petitioner : MR. P J SAIKIA, SR. ADV, MR. I U CHOWDHURY (P-1),MR H R A CHOUDHURY (P-1),A. K. KANU,MR P TALUKDAR,MR W R MEDHI,MR A V SINGH,MR K J SAIKIA,MR. P BORDOLOI,MR. K BORUAH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 14.08.2026 (M. Zothankhuma, J) Heard Mr. I.U. Chowdhury, learned counsel for the applicant/appellant. Also heard Mr. R. R. Kaushik, learned Addl. P.P for the State and Dr. P. Agarwal, learned Page No.# 3/5 counsel for the respondent No.2. 2. This is an application under Section 389(1) Cr.P.C for suspension of the sentence to be undergone by the applicant/appellant, pursuant to the impugned Judgement dated 06.02.2024, passed by the learned Special Judge, Jorhat in Special Case No. 15/2019, arising out of Jorhat P.S. Case No.792/2019, by which the applicant/appellant has been convicted under Section 376AB read with Section 6 of the POCSO Act. The applicant/appellant was however sentenced under Section 6 of the POCSO Act, in view of Section 42 of the POCSO Act, to undergo rigorous imprisonment for 30 years with fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for 2 years. 3. The facts of the case show that an FIR had been filed four months after the incident by the mother of the victim, to the effect that the mother had seen the applicant raping the victim. 4. The statement of the victim recorded under Section 164 Cr.P.C is to the effect that the applicant had raped her many times in various places. There is no other incriminating statement made by the victim against the applicant in her Section 164 Cr.P.C statement, except the fact that the applicant had inserted his private parts into the private parts of the victim. However, in her testimony before the learned Trial Court, the victim has stated that the applicant had inserted his finger into her private parts. The victim is totally silent with regard to the applicant inserting his private parts into the private parts of the victim. 5. The above contradiction in the statement of the victim under Section 164 Cr.P.C, vis-a-vis her testimony, clearly goes to show that the victim is not a sterling Page No.# 4/5 witness and that her testimony has not been corroborated by her statement made under Section 164 Cr.P.C. 6. In the case of R. Shaji Vs. State of Kerala, reported in (2013) 14 SCC 266, the Supreme Court has held that a statement made under Section 164 Cr.P.C can only be used for the purpose of contradiction or corroboration. 7. On perusing the medical report and the evidence of the Doctor who had examined the victim, it is clear that there is no corroboration of the victim's testimony that she has been raped. There is nothing stated by the Doctor, to the effect that the victim's hymen has been torn or was absent. There was no injury marks on her body. As such, there is no corroboration by the Doctor's evidence with regard to the victim's testimony that any untoward act had been committed by the applicant on the victim. 8. The FIR of the victim's mother, which is to the effect that she had seen her daughter being raped by the applicant, has also not been proved. The evidence of the mother as PW-1, which implies that rape had been committed by the applicant on her daughter, is also not corroborated. 9. In view of the above, we are of the prima facie view that the applicant should be released on bail on account of there being a major discrepancy in the statement of the victim made under Section 164 Cr.P.C and her testimony before the learned Trial Court, which appears to go to the root of the matter. Accordingly, the applicant is allowed to go on bail, on furnishing a bond of Rs.30,000/-, with one surety of like amount, to the satisfaction of the learned Special Judge, Jorhat. Consequently, the sentence to be undergone by the applicant pursuant to the Page No.# 5/5 impugned Judgement dated 06.02.2024, passed by the learned Special Judge, Jorhat in Special Case No. 15/2019, is hereby suspended till final disposal of the appeal. 10. The application is accordingly allowed and disposed of. JUDGE JUDGE Comparing Assistant