Page No.# 1/7 GAHC010239302024 2025:GAU-AS:2224 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3534/2024 MUKSIDUR RAHMAN S/O MR. AMJAD ALI R/O VIL- SAGUNBAHI, WARD NO. 10, MOIRABARI P.O. SHAGUNBAHI P.S. MOIRABARI DIST. MORIGAON, ASSAM PIN-782126 VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:MOFIJA KHATUN (INFORMANT) W/O JAHIRUL ISLAM R/O VILL- SAGUNBAHI WARD NO. 10 MOIRABARI DIST. MORIGAON ASSAM PIN-78212 Page No.# 2/7 Advocate for the Petitioner : MR Z KAMAR, MR S J CHOUDHURY,MR. BISWAJIT TALUKDAR Advocate for the Respondent : PP, ASSAM, DR. P AGARWAL, AMICUS CURIAE (R-2) BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 04.03.2025 Heard Mr. Z Kamar, learned Senior counsel assisted by Mr. S J Choudhury, learned counsel for the petitioner and Mr. M P Goswami, learned Additional Public Prosecutor, Assam for the State. Also heard Dr. Pooja Agarwal, learned Amicus Curiae appearing for the respondent No. 2/informant of the case. 2. The petitioner, namely, Md. Muksidur Rahman, son of Mr. Amjad Ali, resident of village-Sagunbahi, Ward No. 10, P.S.-Moirabari, District-Morigaon has filed this application under Section 483 BNSS, praying for his bail in Special POCSO Case No. 55/2024 arising out of Moirabari Police Station Case No. 31/2024 under Sections 448/376 AB IPC read with Section 6 of the POCSO Act, presently pending before the Court of the learned Special Judge (POCSO), Morigaon, in which he was arrested on 08.03.2024 and is in custody since then. 3. Mr. Z Kamar, learned Senior counsel for the petitioner submitted that the informant and the petitioner are neighbours and they are having land/boundary dispute and as their relation is inimical therefore, the informant by filing a false case implicated the petitioner. He further submitted that the medical evidence of the victim girl indicates that the accusations made against the petitioner are false. 4. Mr. M P Goswami, learned Additional Public Prosecutor, Assam submitted that the matter is presently pending for recording of evidence of the prosecution witnesses, Page No.# 3/7 particularly, the doctor concerned who medically examined the victim girl and the concerned Investigating Officer of the case and in the meanwhile, prosecution has adduced evidence of 5 of its witnesses who were also cross-examined by the defence. Mr. Goswami, learned APP, Assam as such submitted that at this stage the accused petitioner need not be enlarged on bail. 5. Dr. Pooja Agarwal, learned Amicus Curiae appearing on behalf of the informant of the case adopting the submissions of the learned APP, Assam has submitted that the victim girl and the accused petitioner are neighbours and that if at this stage the accused petitioner is released on bail, there will be a threat perception on the victim girl and her family members. 6. Perused the records of the case that was called for by the Court earlier on 22.11.2024. 7. As per the FIR of the case dated 27.02.2024 lodged before the Officer-in-Charge of Moirabari Police Station by the informant/respondent No. 2, the case is that the informant/respondent No. 2 lives with her three children in her residence at village- Shagunbahi, Ward No. 10 under Moirabari Police Station, District-Morigaon and her husband lives in Kerala for business purpose. On 25.02.2024 at around 01:00 PM while the informant was busy in farming in her paddy field and when her minor daughter aged about 6 years was playing with two of her friends, the accused petitioner who is also a resident of the same village and ward came to her house, took the victim minor girl inside a room and closed the door, made her sleep on the bed, removed her cloths and tried to rape her by putting his fingers in her private parts. On the next day morning, i.e., 26.02.2024, the minor victim girl experienced abdominal pain and had difficulties in urination and in the evening she told the informant about the incident. Thereafter, the informant informed the same to the family members of the accused petitioner and the family members of the accused petitioner requested the informant not to disclose the incident to others, saying that they will take the responsibility for the medical expenses of the victim girl. 8. Said FIR dated 27.02.2024 of the informant was accordingly registered as Moirabari Police Station Case No. 31/2024 under Sections 448/376 AB IPC read with Section 4 of the POCSO Act. 9. The petitioner was arrested on 08.03.2024 and was produced before the Court of the Page No.# 4/7 learned Chief Judicial Magistrate, Morigaon on 09.03.2024. 10. During the investigation of the case, the concerned Investigating Officer of the case approached the learned Special Judge (POCSO), Morigaon and prayed for adding of Section 376 AB IPC read with Section 6 of the POCSO Act and to remove Section 4 of the POCSO Act in said Moirabari P.S. Case No. 31/2024. After going through the relevant case diary and considering the prayer of the concerned I.O. of the case, the learned Special Judge (POCSO), Morigaon by order dated 29.02.2024 passed in said Moirabari P.S. Case No. 31/2024 added Section 376 AB IPC as well as Section 6 of the POCSO Act and deleted Section 4 of the POCSO Act from the said case. 11. During the investigation of the case, the original Birth Certificate of the victim girl issued on 24.02.2018 by the Registrar of Birth and Death, Moirabari Community Health Centre cum First Referral Unit was seized by the police which indicates that the date of birth of the victim girl is 10.12.2017. As such, on the date of the incident the victim girl was above 6 years 2 months of age. 12. After completion of the investigation of the case, Charge-Sheet in said Moirabari P.S. Case No. 31/2024 was submitted on 31.03.2024 and thereafter, it was registered as Special POCSO Case No. 55/2024 before the Court of the learned Special Judge (POCSO), Morigaon. On 10.04.2024 the learned Special Judge (POCSO), Morigaon took cognizance of the offence under Sections 448/376 AB IPC read with Section 6 of the POCSO Act against the petitioner and on 02.05.2024 the said Trial Court farmed charge under Sections 448/376 IPC read with Section 6 of the POCSO Act against the petitioner. 13. From the records of the case, it is seen that on 27.02.2024 the victim girl was produced before the Doctor in the emergency ward of Moirabari Community Health Centre cum First Referral Unit and on examination of the minor victim girl she was prescribed with anti-inflammatory injection and anti-inflammatory syrup and antibiotics. Thereafter on 28.02.2024, the victim girl was medically examined at Morigaon STHG Civil Hospital. As per the said medical report dated 28.02.2024, the concerned Doctor did not find any injury/violence marks on the body of the victim or in her private parts and found her to be aged about 7-9 years as per the X-Ray report. Page No.# 5/7 14. It is seen that the minor victim girl in her 164 CrPC statement recorded on 22.02.2024 by the learned Additional Chief Judicial Magistrate, Morigaon as well as in her deposition before the learned Special Judge (POCSO), Morigaon implicated the petitioner of inserting his fingers in her private parts on the day of the incident inside their house in absence of her mother and other family members. 15. Though the petitioner stated that the informant and he had land/boundary dispute, it is seen that during cross-examination, the five prosecution witnesses who adduced evidence so far, including the three minor witnesses including the victim girl; maternal uncle of the victim girl as well as the informant denied any such incident of having land/boundary dispute between the petitioner and the informant. 16. It is seen that the three minor girls including the minor girl who were present at the time of the incident were thoroughly cross-examined by the defence. Out of the 11 prosecution witnesses named in the charge-sheet of the case, the Court of learned Special Judge (POCSO), Morigaon have already recorded the evidence of 5 of the prosecution witnesses as on September, 2024 and 13.03.2025 is the next date for recording of evidence of the Doctor concerned who medically examined the minor victim girl and the Investigating Officer of the case. 17. It is also seen that the accused petitioner was 39 years old on the date of the his arrest, whereas the victim girl was just 6 years 2 months old on the date of the incident. 18. The Hon’ble Apex Court in the case of X -Vs.- State of Rajasthan, reported in (2024) INSC 909 =2024 STPL 12498 SC have held that— In serious offences like rape, murder, dacioty etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court should be loath in entertaining the bail application of an accused of the case.” 19. Their Lordships in said X -Vs.- State of Rajasthan further held that — “Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of Page No.# 6/7 the victim. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.” 20. Record of the case clearly indicates that there is no such delay in the trial of the case and that the right of the accused petitioner to have speedy trial has not been infringed. 21. After considering the entire aspect of the matter and after hearing the parties, this Court is of the opinion that the detention of the petitioner in custody since 08.03.2024 cannot be considered for his bail in said Special POCSO Case No. 55/2024 arising out of Moirabari P.S. Case No. 31/2024. 22. Accordingly, this bail application of the petitioner, Md. Muksidur Rahman, son of Mr. Amjad Ali, in said Special POCSO Case No. 55/2024 arising out of Moirabari P.S. Case No. 31/2024 pending before the Court of the learned Special Judge (POCSO), Morigaon, stands rejected, at this stage. 23. The Court appreciates the services rendered by Dr. Pooja Agarwal, learned Amicus Curiae in adjudication of this bail application and the Gauhati High Court Legal Services Committee shall pay the remuneration to her, on raising a bill. 24. It is made clear that the learned Trial Court, i.e., the Court of learned Special Judge (POCSO), Morigaon while adjudicating said Special POCSO Case No. 55/2024 arising out of Moirabari P.S. Case No. 31/2024 shall not be influenced by any of the observations or findings, made hereinabove in this bail application. Page No.# 7/7 JUDGE Comparing Assistant