Page No.# 1/7 GAHC010272812024 2025:GAU-AS:2400 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3893/2024 MD HASAN ALI S/O- LATE SAMSUL HOQUE, R/O- 1 NO- BHANDARA GAON, P.S- MANIKPUR, DIST- BONGAIGAON, ASSAM, VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:MANESWARI MUSHAHARY W/O- BIJU MUSHAHARY R/O- NAMPHAI GFOREST GAON DIST-TINSUKIA ASSA Advocate for the Petitioner : MR NAZRUL ISLAM KHAN, MR. N I KHAN,MR. S RANA,MR. S MUNIR Advocate for the Respondent : PP, ASSAM, MS. R CHOUDHURY (Amicus Curiae, R-2) Page No.# 2/7 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 06-03-2025 Heard Mr. S. Munir, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the State, opposite party No.1. Also heard Ms. R. Choudhury, learned Amicus Curiae for the informant/opposite party No.2. 2. The petitioner, namely, Md. Hasan Ali, son of late Samsul Hoque, resident of 1 No. Bhandara Gaon, Police Station-Manikpur, District-Bongaigaon, Assam has filed this application under Section 483 BNSS, 2023, praying for his bail in Special (POCSO) Case No. 138/2024 arising out of Lekhapani Police Station Case No.56/2024 registered under Section 65(1) BNS, 2023, read with Section 4 of the POCSO Act, 2012, in which he was arrested on 02.10.2024 and is in custody since then. 3. As per the FIR dated 01.10.2024 lodged by the informant before the Jagun Police Out post, the case is that on 29.09.2024, her minor daughter went to the resident of her elder sister, situated at Dharmendra Ita Bhata, but did not return home. On being enquired, it came to know that she around 01:00 pm on 29.09.2024 left with the accused petitioner in his motorcycle, who works as an Assistant at Jugli Ita Bhata and kept the victim girl for two days with him in his rented house and raped her during her stay with him. The said FIR was received as Jagun Outpost GD Entry No. 17 dated 01.10.2024 and on being forwarded to Lekhapani Police Station, it was registered as Lekhapani P.S. Case No. 56/2024 under Sections 65(1) BNS, 2023 read with Section 4 of the POCSO Act, 2012 corresponding to G.R. No.35/2024. 4. The Court by order dated 19.12.2024 called for the relevant record. 5. On perusal of the records, it is seen that the family members of the victim girl along with local people rescued the victim girl from the rented house of the petitioner and assaulted both of them, during which both of them sustained minor injuries. Page No.# 3/7 6. It is seen that the victim girl was produced before the concerned Medical Officer of Margherita First Referral Unit, Tinsukia on 01.10.2024 for her medical examination. On 02.10.2024 the statement of the victim girl under Section 183 BNSS was recorded by the learned SDJM(S), Tinsukia. In her statement before the learned Magistrate recorded under Section 183 BNSS, the victim girl implicated the petitioner of committing sexual intercourse with her while he kept her as his captive in his rented house. Subsequent to that, the victim girl was forwarded to the Tinsukia Medical College and Hospital for her medical check up on 02.10.2024. 7. The petitioner was taken into custody on 02.10.2024 and was produced before the learned Special Judge (POCSO)-cum-Additional Sessions Judge, Tinsukia. 8. During the investigation of the case police seized the original Birth Certificate of the victim girl issued by the Registrar of Birth and Death, Jonai on 27.08.2012 indicating the date of birth of the victim girl as 02.02.2011. 9. After completion of investigation, police on 29.10.2024 submitted the charge-sheet in said Lekhapani P.S. Case No. 56/2024 under Section 65(1) BNS, 2023, read with Section 4 of the POCSO Act. 10. On receipt of said charge-sheet, said Lekhapani P.S. Case No. 56/2024 was registered as Special (POCSO) Case No. 138/2024, before the Court of learned Special Judge (POCSO)- cum-Additional, Sessions Judge, Tinsukia, in which, cognizance of the offence under Section 65(1) BNS, read with Section 4 of the POCSO Act was taken against the petitioner on 06.11.2024. The said Court of learned Special Judge (POCSO)-cum-Additional, Sessions Judge, Tinsukia on 27.11.2024 framed charge under Section 64(1) BNS, read with Section 6 of the POCSO Act against the petitioner. 11. It is seen from the records of the case that out of ten named prosecution witnesses in the charge sheet, prosecution as on 22.01.2025 has adduced the evidences of three of its witnesses including the victim girl, the informant and the concerned Doctor, who medically examined the victim girl on 01.10.2024 at Margherita First Referral Unit, Tinsukia. 12. Mr. Munir, learned counsel for the petitioner submitted that considering the detention Page No.# 4/7 of the petitioner in custody since 02.10.2024 and as the evidence of the victim girl, the informant as well as the Doctor, who medically examined the victim girl have already been recorded, further detention of the petitioner is not warranted and he should be considered for bail in said Special (POCSO) Case No. 138/2024. 13. Mr. B. Sarma, learned Additional PP, Assam submitted that the victim girl in her statement under Section 183 BNSS before the learned Magistrate as well as in her deposition before the learned Special Judge (POCSO)-cum-Additional Sessions Judge, Tinsukia implicated the petitioner of committing sexual intercourse with her, while she was kept in captive in the rented house of the petitioner for two days on 29.10.2024 and 30.09.2024. 14. The victim girl was less than 16 years of age at the time of the incident and she being a minor, question of her consent does not arise in such sexual act. 15. Mr. Sarma, learned Addl. PP in support of his argument relied on a decision of the Hon’ble Apex Court in the case of State of Rajasthan Vs. N. K. reported in (2000) 5 SCC 30=AIR 2000 SC 1812, consisting of three Hon’ble Judges of the Hon’ble Apex Court, wherein their Lordships have held that- “11. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter a criminal charge. However, if the court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. Reference may be had to a long chain of decisions, some of which are Rameswar [(1951) SCC 1213], Sidheswar Ganguly [AIR (1958) SC 143], Madhoram & Anr. [(1973) 1 SCC 533], State of Maharshtra V. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550], Madam Gopal Kaddad [(1992) 3 SCC 204], Shri Narayan [(1992) 3 SCC 615], Karnel Singh [(1995) 5 SCC 518], Bodhisattwa Gautam [(1996) 1 SCC 490] and Gurmit Singh [(1996) 2 SCC 384]. We may quote from the last of the above said decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words :- "... If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for Page No.# 5/7 some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." “18 Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. In Sheikh Zakir [(1983) 4 SCC 10], absence of any injuries on the person of the prosecutrix, who was the helpless victim of rape, belonging to a backward community, living in a remote area not knowing the need of rushing to a doctor after the occurrence of the incident, was held not enough for discrediting the statement of the prosecutrix if the other evidence was believable. In Balwant Singh & Ors.[(1987) 2 SCC 287] this court held that every resistance need not necessarily be accompanied by some injury on the body of the victim; the prosecutrix being a girl of 19/20 years of age was not in the facts and circumstances of the case expected to offer such resistance as would cause injuries to her body. In Karnel Singh [(1995) 5 SCC 518] the prosecutrix was made to lie down on a pile of sand. This court held that absence of marks of external injuries on the person of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that she was a willing party to the act of sexual intercourse. It will all depend on the facts and circumstances of each case. A Judge of facts shall have to apply common sense rule while testing the reasonability of the prosecution case. The prosecutrix on account of age or infirmity or overpowered by fear or force may have been incapable of offering any resistance. She might have sustained injuries but on account of lapse of time the injuries might have healed and marks vanished.” “………..Certainly consent is no defence if the victim has been proved to be under 16 years of age. If she be of 16 years of age or above, her consent cannot be presumed; an inference as to consent can be drawn if only based on evidence or probabilities of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable…………” 16. Ms. Choudhury, learned Amicus Curiae for the informant/opposite party No.2 submitted that on the date of the incident on 29.09.2024 considering her date of birth as 02.02.2011, the victim girl was only 13 years 8 months old and the victim girl in her statement before the learned Magistrate as well as in her deposition before the learned Special Judge (POCSO)-cum-Additional Sessions Judge, Tinsukia implicated the petitioner of Page No.# 6/7 committing forceful sexual intercourse with her inspite of her resistance. 17. 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.” 18. Their Lordships in said X Vs. State of Rajasthan further held that— “15. 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 the victim. 16. 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.” 19. Considering the above and the decisions of the Hon’ble Apex Court, the Court is of the opinion that considering the date of detention of the petitioner in custody since 02.10.2024, it cannot be said that the right of the accused petitioner to have a speedy trial of the case has been infringed. 20. For the reasons above this Court of the view that considering his detention in custody since 02.10.2024, the petitioner, named above, is not entitled for his bail in said Special (POCSO) Case No. 138/2024 arising out of Lekhapani Police Station Case No.56/2024, pending before the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Tinsukia. Page No.# 7/7 21. Accordingly, this bail application of the petitioner, Md. Hasan Ali, son of late Samsul Hoque in said Special (POCSO) Case No. 138/2024 arising out of Lekhapani Police Station Case No.56/2024, pending before the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Tinsukia, stands rejected. 22. The assistance rendered by Ms. R. Choudhury, learned Amicus Curiae in adjudicating this case is highly solicited. The Gauhati High Court Legal Services Authority shall pay the remuneration to Ms. R. Choudhury, learned Amicus Curiae, on raising a bill. 23. It is made clear that the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Tinsukia while adjudicating the said Special (POCSO) Case No. 138/2024 arising out of Lekhapani Police Station Case No.56/2024 shall not be influenced with any of the observation or finding made herein above, in this bail application. JUDGE Comparing Assistant