Page No.# 1/4 GAHC010073922025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Linked Case : I.A.(Crl.)/488/2025 AFAZ ALI S/O-LATE ELIOT ALI R/O-VILL JAJORI KAMALAPATTI P.S-MIKIRBHETA DIST-MORIGAON ASSAM-782105. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE PP ASSAM. 2:HANNAN ALI S/O-LT.RAHMAT ALI R/O- VILL- HALADHIBARI UNDER MORIGAON POLICE STATION IN THE DISTRICT OF MORIGAON ASSAM-782105 ------------ Advocate for : MR A ATREYA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Date : 07-05-2026 Heard Mr. A. Atreya, learned counsel for the applicant. Also heard Mr. K. Page No.# 2/4 Baishya, learned Addl. P.P for the State and Ms. S. Borpujari, learned Amicus curiae appearing for the respondent No. 2/informant. The applicant is invoking the provisions of Section 430 of BNSS, 2023. The applicant/appellant seeking suspension of sentence with regard to the judgment & order dated 07-02-2025 passed by Special Judge, POCSO, Morigaon in POCSO Case No. 70 of 2023. The said case arose out of Morigaon P.S Case No.29 of 2023 in which the applicant as accused, faced trial and after upon after completion of the trial he was convicted under Section 376 AB/506 r/w Section 6/18 & 10 of POCSO Act. He was sentenced to RI for 10 years and fine of ₹10,000/- in default, RI for three months. The main appeal has been admitted for hearing and original record has also been received. The learned counsel for the applicant submits that the petitioner has been in custody so far for about two years, four months. He submitted that he is around 77 years old. It is submitted by the learned counsel for the applicant that there are some discrepancies with regard to the age of the victim and as per the medical certificate she is aged more than 12 years. Medical report shows that she is aged more than 12 years. While the certificate adduced in evidence by the prosecution in the trial indicate the lesser age of the victim. It is also submitted that the age of the victim has also not been proved in accordance to Section 94 of the J.J Act, 2015. Another contention of the learned counsel for the applicant is that though the applicant has been convicted for attempt to commit penetrative sexual assault but from the testimony of the victim, the ingredients of the same does not seem to be made out. The prosecution has filed a written objection and supporting the same, the learned Additional P.P has taken the Court through the deposition of the victim and Page No.# 3/4 contended that she has implicated the applicant and that there is no infirmity in the conviction. It is also submitted that the birth certificate adduced in evidence, cogently proves that the age of the victim was about 9-10 years and therefore, below 12 years, so as to attract the aggravated provisions of POCSO. The learned Amicus curiae representing the informant supports the contention of the prosecution and submits that the victim girl is of 10 years and that at this stage she has objection to grant of bail to the applicant. It is true that as per the principles laid down by the Hon’ble Supreme Court in the case of Bhagwan Rama Shinde Gosai & Others -versus- State of Gujarat, reported in (1999) 4 SCC 421 in case of fixed sentences (i.e sentences other than life imprisonment), the question of suspension of sentence has to be interpreted has to be somehow liberally. Nevertheless, even with regard to such sentences some of the factors that the Court has to look at while considering the aspect of suspension of sentence can be noted herein below:- (i) The nature of the sentence and the possibility of absconding of the convicted/appellant. (ii) Any undue delay in disposal of the appeal. (iii) Materials to indicate some apparent or prima facie error in the judgment taking the appeal in the direction of one of acquittal or of lesser penal provisions. While adjudicating the question of suspension of sentence of bail, the Court has to be cautious not to express any opinion prejudicing the appeal. Nevertheless, upon perusing the materials on record upon perusing the materials on record, I have not found any blatant errors on the face of it regarding the minority of the victim girl or her tender age as contended by the prosecution. Page No.# 4/4 As far as the nature of the alleged offence and its ingredients thereof are concerned, I have considered the submissions of both the sides and gone through the narration of the victim's evidence reflected in the impugned judgment. The following sentence from the impugned judgment pertaining to the evidence of the prosecutrix may be reproduced herein below; “He tried to open her skirt and touched her from behind in such a way that his urine passing organ touched her waist and she could feel it.” In the context of the statement, it would be a matter of adjudication as to whether the same can be taken as an attempt to commit penetrative sexual assault or whether the overall evidence of the prosecutrix case would fall within the lesser provisions such as the sexual assault or aggravated sexual assault. The appeal is registered in the year 2025. Upon perusing the materials and considering the submissions of the learned counsel from both the sides and giving my due consideration into the matter, I am on the considered view that, at this stage, the prayer for suspension of sentence and bail should be rejected. Accordingly, in such view of the matter, the I.A(Crl.) seeking suspension of the sentence and bail with regard to the impugned judgment and sentence passed by the learned Trial Court stands rejected, at this stage. I.A(Crl.) stands disposed of. JUDGE Comparing Assistant