Page No.# 1/8 GAHC010015172024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./41/2024 MD. AYUB KHAN S/O GAJI RAHAMAN KHAN, VILL.- GOBINDAPUR, P.S.- BAGHBAR, DIST.- BARPETA, STATE- ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY P.P., ASSAM. 2:ALOM KHAN S/O LT. NOWAB KHAN VILL.- GOBINDAPUR P.S.- BAGHBAR DIST.- BARPETA STATE- ASSAM Advocate for the Petitioner : MR. M.P. BORAH, MS. N DEVI,MS. N DAS Advocate for the Respondent : PP, ASSAM, Linked Case : I.A.(Crl.)/135/2024 MD. AYUB KHAN S/O GAJI RAHAMAN KHAN VILL.- GOBINDAPUR P.S.- BAGHBAR DIST.- BARPETA STATE- ASSAM. VERSUS THE STATE OF ASSAM AND ANR. Page No.# 2/8 REP. BY P.P. ASSAM. 2:ALOM KHAN S/O LT. NOWAB KHAN VILL.- GOBINDAPUR P.S.- BAGHBAR DIST.- BARPETA STATE- ASSAM. ------------ Advocate for : MR. M.P. BORAH Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA O R D E R Date : 15.09.2026. Heard Mr. M.P. Borah, learned counsel appearing for the applicant/accused appellant. Also heard Ms. S.H. Bora, learned Addl. P.P., Assam appearing on behalf of the State respondent. This is an application under Section 389 of the CrPC, for suspending the sentence pending disposal of the connected appeal and to release the applicant on bail. It is submitted by Mr. Borah, the learned counsel appearing for the applicant that vide the judgment and order dated 05.12.2023, passed by the learned Addl. Sessions Judge cum Special Judge (POCSO), Barpeta in Special POCSO Case No.172/2019, arising out of Baghbar P.S. Case No.254/2016, under Section Page No.# 3/8 448 of the IPC read with Section 4/17 of the POCSO Act and the applicant/accused was convicted under Section 376(2)(i) of the IPC and sentenced to undergo rigorous imprisonment for 10 years along with a fine of Rs.10,000/- (ten thousand) and also sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.5,000/- (five thousand) under section 448 of the IPC with default stipulation. It is submitted by Mr. Borah, the learned counsel that the applicant is in the custody for more than two years nine months. He submitted that there are sufficient discrepancies in the evidence of the prosecution witnesses and there are sufficient grounds for acquittal of the present applicant. The learned counsel basically emphasized on the evidence of both the PW.1 i.e. the informant/father as well as the PW.2/mother of the victim. It is submitted that as per the PW.1/the informant came to know about the incident from his wife at about 1:30 p.m. as regards how the accused/applicant had committer rape on their dumb daughter. But contradicting the statement of the PW.1, it is submitted by the PW.2/the mother of the victim that at about 2:00 p.m., she went out of their house for some works and she returned about 2:30 p.m., when she saw the accused/applicant was committing rape on her. She saw her daughter in a naked condition and only after returning her husband, she narrated the story and the FIR was lodged. Thus it is submitted by Mr. Borah, the learned counsel for the applicant that if the incident occurred at about 2:00/2:30 p.m., how the informant came to know about the incident at about 1:30 p.m. i.e. prior to the incident. Mr. Borah further stressed on the point that as the victim is a dumb girl, where she cannot speak, the evidence of the victim was recorded with the help of a Special Educator i.e. Page No.# 4/8 the PW.4 but from the evidence of the PW.4, it reveals that at the time of recording the statement of the victim under Section 164 of the CrPC as well as before the Court, the mother was present and the victim took the help of her mother who is an interested witness. Mr. Borah further submitted that in case of physically challenged person, especially in case of rape of a dumb girl, the recording of evidence is to be video graphed as per Section 119 of the Evidence Act. But here in the instant case, the recording of evidence of the victim was not video graphed and hence, the Appellate Court cannot assess the evidence of the victim properly in absence of any videography. To substantiate his submission, Mr. Borah, the learned counsel for the applicant has relied on the decision of this High Court in Crl. A. No.5/2019 ( Abdul Karim @ Gatu vs. State of Assam) and the decision of the Hon’ble Apex Court in Criminal Appeal No.870/2007 (State of Rajasthan vs. Darshan Singh @ Darshan Lal), wherein the Hon’ble Apex Court had expressed the view that the law required that there must be record of signs and not the sigh of the interpreter and oath should be administered to a witness before recording his or her evidence. The learned counsel further submitted that though the allegation of rape is brought against the applicant but the medical evidence does not support the case of the prosecution and during the examination of the victim, there found no sign of recent sexual intercourse on her and no mark of injury was also found at the time of her examination. Thus the medical evidence also does not support the case of the prosecution. Mr. Borah, the learned counsel for the applicant also submitted that the FIR was Page No.# 5/8 lodged with a delay of about 10 days but the delay in lodging the FIR has not been explained. However, it is the case of the prosecution that the family members of the victim went for bichar before the village authority, for which there was a delay in lodging the FIR. But the I.O. did not go for any investigation to that regard as to whether there was any village bichar held for the alleged incident. Citing the above grounds, it is submitted by Mr. Borah, the learned counsel for the applicant that there is every chance of acquittal of the present applicant/appellant and accordingly he submitted that during the pendency of the connected appeal, the applicant may be granted bail by suspending the sentence imposed on him. The learned counsel further submitted that the applicant being the permanent resident of the addressed locality, he has sufficient surety to produce before the Court and there is no chance of absconding, if he is granted with bail. Ms. S.H. Bora, the learned Addl. P.P., Assam raised objection and submitted that it is not at all a case for acquittal and hence, suspending the sentence against the accused applicant or to release him on bail does not arise. She further submitted that both the PW.1 and PW.2 corroborated each other. That apart, there is nothing to disbelieve the victim girl who deposed before the Court through her signed language in presence of the Special Educator and the learned trial Court had recorded each and every sign, she shown before the Court in presence of interpreter/Special Educator/PW.4. Further she submitted that it is an admitted fact that the victim was medically examined after 10 days of occurrence and hence, the probability of finding sign of recent sexual intercourse may not be there and at the same time, it may not be possible for Page No.# 6/8 the Medical Officer to find any injury mark on her private part, as she was examined after 10 days of the occurrence. More so, the medical evidence cannot be considered as conclusive evidence and the conviction can be based on the evidence of the victim, if his/her evidence is found to be trustworthy and believable. She accordingly submitted that the other issues which are raised by the learned counsel for the applicant/ appellant may be considered at the time of final hearing of the appeal but at this stage, those things may not be considered while hearing the application for suspension of sentence. She accordingly prayed for dismissal of the present interlocutory application. Hearing the submissions made by learned counsel for both sides, I have also perused the case record and the judgment passed by the learned Addl. Sessions Judge cum Special Judge (POCSO), Barpeta as well as the evidence on record. It is a fact that initially the case was registered under Section 4/17 of the POCSO Act along with Section 448 of the IPC but considering the age of the victim, who is found to be major girl, the conviction was made under Section 376(2)(i) read with Section 448 of the IPC. From the record, it is seen that there is some discrepancies in the timing, where the informant stated that he received the information at about 1:30 p.m., but as per the evidence of the eye witness/PW.2, the incident took place at 2:00/2:30 p.m. But such discrepancies of timing cannot be considered as the ground to disbelieve the entire prosecution case wherein it is an admitted position that the incident took place in absence of both the PW.1 and PW.2, when the accused applicant came to their house. Merely for discrepancies of half an hour in timing, the prosecution case cannot be disbelieved out-rightly. Page No.# 7/8 Further it is seen that the PW.3/the victim girl is unable to speak as she is dumb but it is admitted that she can hear because she is not suffering from any hearing impairment. Thus, the questions put to her by the Court as well as by the Interpreter/Special Educator were heard by her to which she made her reply accordingly. It is also an admitted fact that the evidence of the prosecutrix at the time of recording her evidence was not video graphed, as required under Section 119 of the Evidence Act but from the evidence of the PW.3, as recorded by the Court, it is seen that her each and every sign is explained by the Court which was put to her and with the help of the Special Educator, her entire evidence is recorded. Whether the case will fail or the accused will get the order of acquittal for non- recording of the evidence of the PW.3 may be heard and decided at the time of final hearing. But prima facie it is seen that where the statement/evidence of the victim was recorded cannot be disbelieved and the learned Trial Court made all endeavors to record the statement of the prosecutrix correctly by examining her sign-language to which she responded. Coming to the medical evidence, as raised by the learned counsel for the applicant, it is seen that the medical examination of the victim was done almost 10 days after the incident and hence, there may be a probability of not finding any injury mark or sign of recent sexual intercourse. But the medical evidence cannot be considered as a conclusive one, if the other oral evidence supports the case of the prosecution. However, that may also be considered at the time of final hearing as to whether there is any discrepancy in the medical evidence to disbelieve the prosecutrix. But considering the overall evidence of the prosecutrix and other supporting evidence, it is seen that prima facie there Page No.# 8/8 found no case for acquittal at present, though the other material may arise at the time of final hearing of the case. Considering the detail discussions made here in above, it is the opinion of this Court that it is not a fit case to allow the applicant to go on bail at this stage by suspending the sentence under Section 389 of the CrPC, as prayed for. Accordingly, the present Interlocutory Application stands dismissed. JUDGE Comparing Assistant