Page No.# 1/5 GAHC010240952023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/1034/2023 JAHIDUL ISLAM S/O LATE JAMAL UDDIN SK R/O TENGNARBHITA P.S.- GOSSAIGAON DIST.- KOKRAJHAR (ASSAM). VERSUS THE STATE OF ASSAM AND ANR. TO BE REP. BY THE P.P. ASSAM. 2:MOIJA RAHMAN S/O LATE MOZIBAR RAHMAN R/O BANGALIPARA PART-I P.S.-- BILASIPARA DIST.- DHUBRI (ASSAM). ------------ Advocate for : MR H R A CHOUDHURY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. In Crl.A./398/2023 JAHIDUL ISLAM S/O LATE JAMAL UDDIN SK, R/O TENGNARBHITA, P.S.- GOSSAIGAON, DIST.- KOKRAJHAR (ASSAM). VERSUS Page No.# 2/5 THE STATE OF ASSAM AND ANR. TO BE REP. BY THE P.P., ASSAM. 2:MOIJA RAHMAN S/O LATE MOZIBAR RAHMAN R/O BANGALIPARA PART-I P.S.-- BILASIPARA DIST.- DHUBRI (ASSAM) Advocate for the Petitioner : MR H R A CHOUDHURY, MR. I U CHOWDHURY,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 30/10/2025 (Michael Zothankhuma, J) 1. Heard Mr. A. Ahmed, learned counsel for the applicant/appellant. Also heard Ms. B. Bhuyan, learned senior counsel and APP, Assam, appearing for the State. 2. This is an application under section 389 Cr.P.C. for suspending the sentence inflicted upon the applicant/appellant, pursuant to the impugned judgement and order dated 22/09/2023 passed by the learned Special Judge (POCSO), Bilasipara, in Special (POCSO) Case No. 16/2020, under section 6 of the POCSO Act and section 366 IPC. 3. The learned counsel for the applicant submits that the prosecution case is to the effect that the applicant was alleged to have kidnapped the victim, who was 17 years of age as on 03/03/2020. After allegedly being married for some days, the victim went back to her parents’ house on 10/03/2020. Thereaffter, an FIR was lodged on 26/07/2020 i.e. more than 4 (four) months after the incident, by the father of the Page No.# 3/5 victim, alleging that there had been a case of kidnapping and rape of the daughter of the informant.’ 4. The applicant’s counsel submits that there has been no kidnapping or rape by the applicant towards the victim. He submits that there is no proof that the victim was below 18 years of age inasmuch as, the seizure list was exhibited without the Birth Certificate of the victim being exhibited. As there was no proof that the girl was below 18 years of age, there was no proof of the applicant/appellant having had sexual intercourse with a girl below 18 years of age. Further, no question was put to the applicant by the learned trial Court under section 313 C.P.C, to the effect that the applicant had sexual intercourse with a girl below 18 years of age. He submits that when the age of the victim girl could not be shown to be below 18 years of age on the date of the alleged incident, the conviction and subsequent sentence of the applicant under section 6 of the POCSO Act cannot stand. He also submits that there was no question of kidnapping, inasmuch as, if there was actually a case of kidnapping, the father of the victim would have immediately filed an FIR on 03/03/2020 instead of 26/07/2020 i.e. after more than 4 (four) months after the victim returned home. 5. Ms. B. Bhuyan, learned senior counsel and APP, Assam, submits that though the Birth Certificate of the victim girl was not exhibited, the seizure list, by which the Birth Certificate had been seized, has been exhibited. She further submits that the Birth Certificate of the victim girl shows that the age of the victim was between 17-18 years at the time of the incident. She accordingly submits that when the victim was below 18 years, there was no infirmity with the learned Trial Court convicting the applicant. She further submits that the statement of the victim under section 164 Cr.P.C. and her testimony before the learned trial Court showed that the applicant had forcibly taken away the girl. She also submits that the 4 (four) months delay in filing of the FIR after the victim had returned home, can be explained by the fact that the informant and victim were rustic villagers, who were scared of their reputation being Page No.# 4/5 tarnished in the society. The learned APP also submits that the statement of the victim under section 164 Cr.P.C. is to the effect that the applicant had kidnapped the victim and they had stayed together for 7 (seven) days. A such, when the section 164 Cr.P.C. statement points to the guilt of the applicant, it would not be proper to allow the applicant to go on bail, at this stage. Accordingly, she prays that the application should be rejected. 6. We have heard the learned counsels for the parties. 7. As can be seen from the facts of the case, the FIR had been filed 4 (four) months after the girl had returned home. Further the Birth Certificate of the victim girl has not been exhibited in the learned Trial Court and only the seizure list has been exhibited. The above shows that there is no proof with regard to the girl being below 18 years of age at the time of the incident. The very fact that the girl had been with the applicant for around 7(seven) days in March, 2020 and had returned home thereafter, prima facie implies that there was no kidnapping. Further, there is unexplained delay of more than 4(four) months in filing the FIR. 8. We have also noticed that the learned Trial Court has convicted the applicant/appellant on the ground that the applicant had committed penetrative sexual assault repeatedly on the victim. However, on a reading of the testimony of the victim, there is nothing to show that penetrative sexual assault had been committed repeatedly. In fact, the testimony of the victim girl prima facie shows that there was sexual intercourse only once. 9. In the light of the above reasons, it is not understood as to how the applicant could have been convicted under section 6 of the POCSO Act, as the violation of section 5(l) of the POCSO Act does not appear to have been proved by the prosecution. Page No.# 5/5 10. Though the learned APP has stated that the statement of the victim under section 164 Cr.P.C. clearly proves that the applicant had kidnapped the victim, we are of the view that conviction cannot be based on the statement made under section 164 Cr.P.C. alone, inasmuch as, the same can only corroborate the testimony of the witnesses. 11. On considering all the above reasons, we are of the view that the applicant, at this stage, should be allowed to go on bail. The applicant viz. Jahidul Islam is accordingly allowed to go on bail, on furnishing a bail bond of Rs. 50,000/- (Rupees fifty thousand) with 1(one) surety of like amount, to the satisfaction of the learned Trial Court. Consequently, the sentence imposed upon the applicant under section 366 IPC and section 6 of the POCSO Act, pursuant to the impugned judgement and order dated 22/09/2023 passed in Special (POCSO) Case No. 16/2020 by the learned Special Judge, Bilasipara, is hereby suspended. 12. The above being said, any observation or finding made by this Court in this order, shall not be construed to be the final observation or finding of this Court, at the time of hearing of the appeal. 13. The application is accordingly disposed of. JUDGE JUDGE Comparing Assistant