Page No.# 1/7 GAHC010272072024 2025:GAU-AS:2023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3928/2024 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:SIMANTA SAIKIA S/O LATE KUKHESWAR SAIKIA R/O AMGURICHUK CHAWDANG PATHAR PS. MERAPANI DIST. GOLAGHAT ASSA Advocate for the Petitioner : MR. B D GOSWAMI, 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. 104/2023, under Section 10 of POCSO Act, pending before the Court of learned Special Judge (POCSO), Golaghat (arising out of Merapani Police Station Case No. 55/2023, under Section 354 of the Indian Penal Code read with Section 10 of POCSO Act). 3. Scanned copy of the case record of Spl. (P) Case No. 104/2023 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 3 (three) numbers of prosecution witnesses, including the vital witnesses, are already been examined. He further submitted that though the case is charged under Section 10 of the POCSO Act, but there is no evidence to implicate the present accused/petitioner as charged against him. More so, the victim also denied for his medical examination. The accused is behind the bar for last 17 months and hence, considering his length Page No.# 3/7 of detention also, his prayer may be considered. As the vital witness of the prosecution 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. 107/2023, 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. 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 Page No.# 4/7 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. 107/2023, it is seen that the accused/petitioner is a habitual offender and he used to molest minor girl 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, Page No.# 5/7 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 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. 107/2023. More so, the learned Special Judge, POCSO, Golaghat, while passing the order dated Page No.# 6/7 09.01.2024 in Spl. (P) Case No. 104/2023, has observed as under: “It is pertinent to mention here that there is another case pending in this Court itself, being Special POCSO Case No. 107/23, against the same accused person, in which also a bail petition is filed, in which the allegation against the accused person is that he used to call the other victim girl, aged below 12 years, who used to keep going to his shop to purchase necessary articles, to select potato and onion, on that pretext he made physical contact with the victim girl inside his shop, tried to rape her and threatened her not to disclose it to anyone. On the day of occurrence, when the victim went to purchase nimki from his shop, he pushed her inside, gagged her mouth and raped her. It is seen that the accused person, who is over 50 years of age, has the same modus operandi of committing sexual offences against children, especially girls aged between 11-12 years, as seen from these two cases.” 11. So, from the order passed by the learned Special Judge, POCSO and the other circumstances of this case, it is seen that the present accused/petitioner is a habitual offender and has the same modus operandi of committing sexual offences with the minor children. 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 Page No.# 7/7 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