Page No.# 1/4 GAHC010220952024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/1025/2024 RABBANI ALI S/O. LATE ABDUL RAJEK, S/O. SABOTI LOAR DOLONG, P/S. NORTH LAKHIMPUR, P/O. CHABOTI, PIN-787051, DIST.- LAKHIMPUR, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM. 2:TAGAR PATIR @ TAGOR PATIR W/O. JAYANTA PATIR R/O. VILL.- SABOTI MISING GAON P/O. CHABOTI PIN-787051 P/S. NORTH LAKHIMPUR DIST. LAKHIMPUR ASSAM Advocate for the Petitioner : MS. S G BARUAH, MR. B BORGOHAIN,MR B SAIKIA,MR. S NEOG Advocate for the Respondent : PP, ASSAM, MR. D K BAIDYA, AMICUS CURIAE (R-2) BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 25.09.2025 (M. Zothankhuma, J) Heard Ms. S. G. Baruah, learned counsel for the applicant/appellant and Ms. A. Begum, learned Addl. Public Prosecutor, Assam. Though an Amicus Page No.# 2/4 Curiae had been appointed for the respondent No. 2, no one has appeared for the respondent No. 2. 2. This application has been filed under Section 430 BNSS, praying for suspension of the sentence passed by the Court of the learned Special Judge (POCSO), Lakhimpur, North Lakhhimpur, in Special (POCSO) Case No. 39/2021, pursuant to the judgment and order dated 06.08.2024, by which the applicant/appellant has been convicted under Section 366 of the IPC read with Section 4 of the POCSO Act. 3. The brief fact of the case is that the mother of the victim girl had submitted an FIR dated 24.03.2021, stating that her daughter aged about 15 years, had been forcibly taken away by the applicant/appellant. In consequence to the said FIR, North Lakhimpur P.S. Case No. 328/2021 had been registered. Charge-sheet was thereafter filed, on the ground that a prima facie case has been made out against the applicant/appellant under Section 366(A) of the IPC read with Section 4 of the POCSO Act, inasmuch as, the victim girl was around 14 years at the time when the applicant/appellant was alleged to have had a sexual relationship with the said victim. 4. The learned counsel for the applicant has taken us through the evidence of the victim (PW-5), which is to the effect that as she was late in returning home one evening, her mother had got her medically examined, besides submitting an FIR before the police and that at that time, she was 18 years of age. In her evidence, PW-5 has further stated that the applicant had not abducted her nor made her elope with him. In her statement made under Section 164 Cr.P.C., PW5 had stated that she had been in love with the appellant for a year and had Page No.# 3/4 told him on 23.03.2021 that she would elope with him. She further stated in her statement that she was taken by the applicant/appellant and kept in a friend’s house for two days in Pohumara. Thereafter, while going out for work, the applicant’s father had taken her to Lilabari P.S. In her statement, she had also stated that before eloping, the applicant and PW-5 had been having physically intimate moments at their house. 5. Learned counsel for the applicant/appellant has further taken us through the evidence of PW-7, wherein it has been stated that an ossification test for age determination had been done upon the victim and it was found that she was between 15 to 17 years of age. 6. Ms. A. Begum, learned Addl. Public Prosecutor submits that the victim is a minor and as such, no consent could be taken from the minor girl for having a sexual relationship. 7. We have heard the learned counsels for the parties. 8. The evidence of PW-5 before us shows that the victim girl claimed to be 18 years at the relevant point of time. The ossification test also shows that she was between 15 to 17 years. Besides the above, the evidence of PW-1 is to the effect that the victim has been married off to another boy by pw-1 about two months ago. The evidence of PW-1 having been taken on 12.05.2022 and the incident having occurred on or around 23.03.2021, we are of the view that the bail should be granted to the applicant/appellant, as the marriage of the victim girl would imply that she was a major. 9. Accordingly, the applicant is allowed to go on bail, on furnishing a bail Page No.# 4/4 bond of Rs.30,000/- with one surety of like amount, to the satisfaction of the learned Special Judge, Lakhimpur, North Lakhimpur, in connection with Special (POCSO) Case No. 39/2021. Consequently, the sentence passed, pursuant to the impugned judgment dated 06.08.2024 in Special (POCSO) Case No. 39/2021, is hereby suspended. 10. The I.A. is accordingly disposed of. JUDGE JUDGE Comparing Assistant