Page No.# 1/7 GAHC010272062024 2025:GAU-AS:2022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3914/2024 BOLURAM BORAH @ BOLURAM BORA S/O LATE BHUBAN CHANDRA BORAH R/O AMGURICHUK CHAWDANG PATHAR P.S. MERAPANI DIST. GOLAGHAT, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:DIPTI THENGAL BORA D/O LATE LAKHIRAM BORA R/O AMGURICHUK CHAWDANG PATHAR P.S. MERAPANI DIST. GOLAGHAT ASSA Advocate for the Petitioner : MR. B D GOSWAMI, MR. J M GOGOI Advocate for the Respondent : PP, ASSAM, MS. B SARMA (Amicus Curiae, R-2),MS. B SARMA (LEGAL AID COUNSEL FOR R-2) Page No.# 2/7 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 27.02.2025 Heard Mr. B. D. Goswami, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent and Ms. B. Sarma, learned Amicus Curiae for the respondent No. 2. 2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Spl. (P) Case No. 107/2023, under Sections 376AB/506 (Part-II) of the Indian Penal Code read with Sections 6/10 of the POCSO Act, pending before the Court of learned Special Judge (POCSO), Golaghat (arising out of Merapani Police Station Case No. 56/2023). 3. Scanned copy of the case record of Spl. (P) Case No. 107/2023 has already been received. Perused the same. Heard both sides. 4. It is submitted by Mr. Goswami, learned counsel for the petitioner, that the case has already been charge-sheeted and out of 6 (six) numbers of prosecution witnesses, all the vital witnesses are already been examined including the informant and the victim of this case and the case is pending for recording the statement of I.O. and M.O. only. He further submitted that the medical evidence of the doctor does not support the case of the prosecution and there found no sign of recent sexual intercourse while examining the victim Page No.# 3/7 nor there found any injury mark on her private parts. Though the case is charged under Sections 6 & 10 of the POCSO Act read with Section 376 IPC, but there is no evidence to implicate the present accused/petitioner as charged against him. The accused is behind the bar for last 17 months and hence, considering his length of detention also, his prayer may be considered. As the vital witness of the prosecution, i.e. the informant and the victim, are already been examined in this case, there is no probability of any hampering or tampering with the evidence of the vital witnesses if the accused is enlarged on bail. More so, the accused, being the permanent resident of his addressed locality, there is no chance of absconding. Rather, the accused will regularly appear before the learned Trial Court below on each and every date to be fixed by the Court. 5. Mr. Goswami further submitted that the earlier bail application of the present petitioner was rejected by this Court vide order dated 27.06.2024, which was filed prior to the recording of the vital witnesses of the prosecution. But, at present, all the vital witness of the prosecution has already been examined and hence, there is no question of tampering with the evidence of the vital witnesses. He further submitted that another F.I.R. is also lodged against the present petitioner with similar kind of allegation and from the evidence recorded in Spl. POCSO Case No. 104/2023, it reveals that the informant of both the cases are relative and only with a view to harass the present petitioner, the F.I.R. has been lodged with false and concocted allegations. The actual fact is that the informant purchased some grocery items from the shop of the accused/petitioner without any payment and there is a dispute between the informant and the accused/petitioner regarding the payment of those grocery Page No.# 4/7 items and only with a view to harass the present petitioner, the case has been lodged by the informant which reveals from the evidence of the PW-3, as recorded by the Court. 6. Mr. Lahkar, learned Additional Public Prosecutor, submitted in this regard that the period of long incarceration cannot be a good ground for considering the bail application and from the evidence of the victim and her statement recorded under Section 164 Cr.P.C., it is seen that the same are also found to be consistent and hence, there cannot be any reasonable ground of believe that the accused/petitioner may be acquitted from the present case. In that context, he also relied on a decision of Hon’ble Apex Court passed in the case of Kalyan Chandra Satkar Vs. Rajesh Ranjan Alias Pappu Yadav & Anr. [(2005) 2 SCC 42], wherein the Hon’ble Apex Court had expressed the view that the accused cannot be granted with bail solely on the ground of period of incarceration undergone by the accused. It was further held that the sole ground of delay in conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of prima facie case, gravity of the offence and the allegation of tampering with the witnesses by threat and inducement when on bail. 7. Mr. Lahkar further submitted that the victim girl is still under mental shock and agony and from the order passed by the learned Trial Court below also, it is seen that she is under mental pressure and that the accused may commit same kind of offence with her or may harm the victim as well as her family members if the accused is released on bail. More so, from the present case record as well as from the record of Spl. POCSO Case No. 104/2023, it is seen that the accused/petitioner is a habitual offender and he used to molest minor girl Page No.# 5/7 whoever come to his shop. He accordingly submitted that the probability of harassing the minor victim cannot be denied at this stage and accordingly he raised vehement objection and submitted that it is not at all a fit case to grant bail to the present accused/petitioner. 8. Ms. Sharma, learned Amicus Curiae appearing for the respondent No. 2, also submitted that there is no statement or evidence that the F.I.R. was lodged against the present petitioner in consecutive cases for any previous enmity. More so, the accused/petitioner is an aged person more than 50 years and hence, it also cannot be held that he had committed such kind of offence at his tender age. Rather, from the statement made by the victim in both the cases, i.e. Spl. (P) Case No. 104/2023 & Spl. (P) Case No. 107/2023, it is seen that the accused is a habitual offender and used to harass/molest the minor girls. She further submitted that these 2 (two) matters have come up on the record, but there may be many other matters wherein the accused had committed sexual assault on the victim of similar ages. She further submitted that the victim is still under mental trauma and if the petitioner is released on bail at this stage, it may encourage him to do the same kind of offence and possibility of committing such kind of offence also cannot be denied at this stage. Accordingly, she raised vehement objection and submitted that it is not at all a fit case to extend the privilege of bail to the present accused/petitioner. 9. After hearing the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the case record including the statement made by the victim as well as the informant and the evidences so far recorded by the learned Special Judge (POCSO). 10. It is seen that the victim had directly implicated the present petitioner Page No.# 6/7 showing his involvement in the alleged offence. However, at the time of rejection of the earlier bail application, vital witness of the prosecution was not examined by the prosecution. But, at this stage, it is seen that the vital witness of the prosecution has already been examined including the informant and the victim. However, from the evidence and the other circumstances of this case, it is seen that the present accused/petitioner is a habitual offender and he had committed similar kind of offence with the other victim girls and on the basis of which, another F.I.R. was also lodged by the parents of the other victim, which is accordingly registered as Spl. POCSO Case No. 104/2023. More so, from the order dated 18.11.2024, passed by the learned Special Judge, POCSO, Golaghat, in Spl. (P) Case No. 107/2023, it is seen that at the time of hearing of the bail application, the learned Additional Public Prosecutor on behalf of the victim/informant raised objection and it is recorded by the learned Trial Court below that the victim still does not feel like going to school due to shock she got on account of bad deed done to her by the accused person. It is also observed that if the accused person is released on bail, the victim will get mentally affected on seeing the accused and she may not attend her school and her mental and physical health condition will also suffer and in extreme cases, she may also tried to commit suicide. The learned Special Judge, POCSO, in one of the paragraph of its order, had also made observation in regards to the statement made by the informant of this case, which is as under: “The informant then questioned that in case something happens, how can she get the victim back. The informant cried and said that the accused person may not be released on bail and if he is released, she will have to take some other measures as she will not get her daughter if the accused person is released. She will not say what other measure she will take. She also submitted that in the Court, this case may go on with trial but if something happens to her daughter, she will not get her again. The informant wept and implored that the accused person may not be released on bail.” Page No.# 7/7 11. So, from the order passed by the learned Special Judge, POCSO and the other circumstances of this case, it is seen that the release of the accused on bail at this stage may not be appropriate and safe for the victim girl who is already suffering from mental trauma and still under mental pressure. 12. The Hon’ble Supreme Court in the case of Rajesh Ranjan [(2004) 7 SCC 528], has held that mere fact that the accused has undergone certain period of incarceration by itself would not entitle the accused to be enlarged on bail nor the fact that the trial is not likely to be concluded in the near future, either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail. It is also held that while considering the bail application, the Court must consider the nature of acquisition, the severity of the punishment in case of conviction, the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge. 13. So, considering the entire discussions made above, viz-a-viz the nature of offence, this Court is of the view that this is not a fit case to grant the privilege of bail to the accused/petitioner at this stage and accordingly, the same stands rejected. 14. The bail application stands disposed of in terms above. JUDGE Comparing Assistant