Page No.# 1/5 GAHC010102252024 2025:GAU- AS:11767-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/484/2024 ANANTA DAS SON OF ANIL DAS, RESIDENT OF RAJABARI, PANIKHAITI, POLICE STATION- PRAGJYOTISHPUR, DIST-KAMRUP(M), ASSAM. PIN-781026. VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:BHUILA BIN W/O DHANPAT BIN R/O RAJABARI PANIKHAITI P.S.-PRAGJYOTISHPUR DIST- KAMRUP (M) ASSAM PIN-78102 Advocate for the Petitioner : MR C GOSWAMI, Advocate for the Respondent : PP, ASSAM, MR. A BHATTACHARYA. AMICUS CURIAE R2 Linked Case : Crl.A./481/2023 ANANTA DAS SON OF ANIL DAS Page No.# 2/5 RESIDENT OF RAJABARI PANIKHAITI POLICE STATION- PRAGJYOTISHPUR DIST-KAMRUP(M) ASSAM. PIN-781026. VERSUS THE STATE OF ASSAM AND ANR. E REPRESENTED BY PP ASSAM. 2:BHUILA BIN W/O DHANPAT BIN RESIDENT OF RAJABARI PANIKHAITI POLICE STATION- PRAGJYOTISHPUR DIST.- KAMRUP(M) ASSAM. PIN.-781026. ------------ Advocate for : MR C GOSWAMI Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. E BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER 01.09.2025 (M. Zothankhuma, J) Heard Mr. C Goswami, learned counsel for the applicant. Also heard Ms. A Begum, learned Additional Public Prosecutor, Assam for the State as well as Mr. A Bhattacharya, learned Amicus Curiae appearing on behalf of the informant. 2. The applicant/appellant has prayed for suspension of the sentence inflicted upon him, pursuant to the judgment dated 07.08.2023 passed by the learned Additional Sessions Judge cum Special Judge (POCSO), Kamrup (Metro), Page No.# 3/5 Guwahati in Sessions Case No. 420/2018, by which the applicant has been convicted under Section 4 of the POCSO Act. 3. The applicant’s counsel submits that the evidence of the victim girl is to the effect that when she was playing with Riya, Maya and Maya’s younger brother, a person came calling her and her friend Rashmita. When Rashmita said she would go home, the person did not allow her to go and pulled her by her hand. Rashmita attacked him with a brick and fled. The person then cut off the clothes of the victim and removed them. It was dark by then. However, her elder sister came along with a large number of people and the person fled from the place. The people caught him on the road and took him to the police. The victim also stated that when the people arrived, the person had tried to commit bad act on her. However, he could not commit the bad act on her. 4. The counsel for the applicant submits that the evidence of PW-4 is to the effect that when the victim girl and herself were sitting near their house at around 7 PM, the appellant Babu accompanied by another boy gagged both of them and took them towards the brick kiln. It was dark and after going some distance, Babu fell to the ground. Thereafter, PW-4 bit the hand of Babu and freed herself and fled. PW-4 then informed her mother about the incident, due to which a search was made for the victim. PW-4 further stated she heard that the boy who abducted the victim had done something bad to her. In her cross- examination, PW-4 stated that she did not know the name of the boy who did something bad to the victim. In her cross-examination, PW-4 also stated that the appellant Babu was drunk and was walking unsteadily. When he fell, she fled the scene. 5. The learned counsel for the applicant submits that the evidence adduced by the witnesses do not show the involvement of the appellant with regard to the Page No.# 4/5 alleged bad act inflicted upon the victim. He accordingly submits that the applicant/appellant could not have been convicted under Section 4 of the POCSO Act. 6. Ms. A Begum, learned Additional Public Prosecutor and Mr. A Bhattacharya, learned Amicus Curiae appearing for the informant submit that though the evidence of the victim and PW-4 do not directly point to the guilt of the applicant under Section 4 of the POCSO Act, the medical examination report done on the victim girl shows that the hymen of the victim girl had a fresh tear with bleeding, at 6 o’ clock and 9 o’ clock position. As such, there was evidence that there had been penetrative sexual assault on her. Further, the medical examination report of the doctor stated that the victim child had stated that the man who had removed her clothes, had put his fingers into her private parts and had sexual intercourse with her. They further submit that the applicant had made a statement under Section 164 CrPC. As such, there was no infirmity in the learned Trial Court having come to a finding that the applicant was guilty of having committed an offence under Section 4 of the POCSO Act. 7. We have heard the learned counsels for the parties. 8. A perusal of the statement made by the victim girl under Section 164 CrPC shows that she had stated that a person (man) who had taken her to the river bank pressed his fingers into her bottom. It hurt her and she started to bleed. 9. The evidence of the victim does not make a mention of a person pinching her bottom and as such, Section 164 CrPC statement does not corroborate the evidence of the victim girl. 10. The evidence of the victim girl also does not make a mention of the applicant Babu, but only speaks of a person who had taken her to the river Page No.# 5/5 bank. There is also no dock identification of the applicant by the victim, to the effect that the applicant had tried to commit a bad act on her. 11. The evidence of PW-4 also does not show that the applicant had taken the victim girl to the place of incidence. 12. Considering the above, we are of the view that the applicant should be released on bail at this stage. 13. Accordingly, the applicant is released on bail, on furnishing a bail bond of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety of the like amount, to the satisfaction of the learned Additional Sessions Judge cum Special Judge (POCSO), Kamrup (Metro), Guwahati. Consequently, the sentence inflicted on him is suspended. 14. The observations/findings made by us in this order should not be construed to be the final observations/findings on the case, while deciding the appeal on merits. 15. With the above observations, this Interlocutory Application stands allowed and disposed of. JUDGE JUDGE Comparing Assistant