Page No.# 1/5 GAHC010208752025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/1064/2025 ATOR ALI SON OF LT. JUBED ALI RO VILL NO.2 SONAPUR P.S. BIHPURIA DISTRICT LAKHIMPUR PIN784161 ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP ASSAM 2:HASNARA BEGUM WO MD. WAHID ALI RO VILL 2 NO SONAPUR P.S. BIHPURIA DISTRICT LAKHIMPUR PIN784161 ASSAM ------------ Advocate for : MS A GOGOI Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 01.06.2026 1. Heard Mr. S. Gogoi, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State and Mr. S. J. Page No.# 2/5 Sarmah, learned counsel for the respondent No. 2/victim. 2. This application under Section 430 of BNSS, 2023 has been filed by the applicant, namely, Ator Ali in connection with Criminal Appeal No. 371/2025 praying for suspension of execution of sentence imposed on the present applicant by the judgment and order dated 08.07.2025, passed by the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur, in Special (POCSO) Case No. 146/2018 whereby the present applicant was convicted under Section 4 of the POCSO Act and was sentenced to rigorous imprisonment for 10(ten) years and to pay a fine of Rs.6,000/- and in default to undergo further simple imprisonment for five months. The applicant has also prayed for suspension of sentence during the pendency of the connected criminal appeal. 3. The facts relevant for consideration of the instant interlocutory application, in brief, are that on the basis of an FIR lodged by the victim girl, who was examined as PW-1 in the trial, Bihpuria P.S. Case No. 497/2018 was registered under Sections 498(A)/376/313/34 of the Indian Penal Code against the present appellant and three other persons. After registration of the said FIR, the investigation was initiated and on completion of investigation, charge-sheet was laid only against the present appellant and one Jakir Hussain. Remaining two accused persons named in the FIR were not sent up for trial. 4. The present appellant faced the trial. However, ultimately by the judgment and order which has been impugned in the connected appeal, he was convicted and sentenced by the trial court in the manner as already described hereinabove. 5. Mr. Gogoi, the learned counsel for the applicant submits that the trial Page No.# 3/5 court has erred in convicting and sentencing the present appellant in the manner as prescribed hereinabove on many counts and there is every likelihood that the appeal which has been preferred by the present appellant would result into a favorable order and the conviction and sentence imposed on the applicant would be set aside. 6. He submits that on bare perusal of the FIR, it would reveal that the FIR was lodged after about one year from the date of alleged incident. However, no clarification for belated filing on the FIR has been stated therein. He submits that belated filing of FIR is indicative of falsehood of the allegations made in the said FIR by the victim girl. He also submits that the trial court had erred also in not coming to a definite finding regarding the minority of the victim girl and the date of alleged offence before proceeding under Section 4 of the POCSO Act against the present applicant. He submits that determining the minority of the victim girl in a POCSO case is a foundational fact which is required to be established by the prosecution side. However, the prosecution side has utterly failed to relieve their burden. There are also inherent inconsistencies in the prosecution case. The stand of the victim girl at different stages of the criminal proceeding was not consistent. She has narrated a different story while her statement under Session 164 of the Code of Criminal Procedure, 1973, was recorded and has stated an entirely new fact that she was dragged from the road by the present applicant and Jakir Hussain and thereafter rape was committed on her. He submits that these facts which goes to the core of the prosecution case were ignored by the trial court and, therefore, the applicant is hopeful of getting a favorable result in the connected appeal. He further submits that the applicant has already undergone detention behind the bars for 329 days. He submits that if the applicant is not released on bail at this stage then Page No.# 4/5 in the event of getting a favourable result in the connected appeal he would be greatly prejudiced. 7. On the other hand, learned Additional Public Prosecutor fairly submits that the prosecution side has not produced any documents regarding the age of the victim girl and the stand of the victim girl regarding her age was different at different stages. 8. Mr. S. J. Sarmah, learned counsel for the victim girl has also submitted that at this stage he is not opposing the grant of bail to the present applicant. However, he submits that the connected appeal may be considered and disposed of at the earliest. 9. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on the record. 10. Any definitive opinion given by this Court at this stage may have a bearing on the final outcome of the connected appeal. Therefore, this Court is refraining itself from making any observations on the plea like failure of the prosecution side to prove the foundational fact and the contradictions in the testimony of the victim at different stages of the criminal proceeding. 11. However, considering the submissions made by the learned counsel for the applicant and considering the fact that the counsel for the victim girl has conceded to the prayer for bail at this stage, this court is inclined to suspend the execution of sentence imposed on the applicant during the pendency of the connected appeal i.e., Criminal Appeal No. 371/2025. 12. The applicant is also allowed to remain on bail during the pendency of Page No.# 5/5 the connected appeal of Rs.50,000/- (Rupees Fifty Thousand) with one surety of like amount, subject to the satisfaction of the learned Special Judge (POCSO), Lakhimpur, North Lakhimpur, with a condition that in the event of dismissal of the connected appeal, he shall surrender before the trial court to serve out the remaining part of his sentence. 13. With the above observation, this interlocutory application is disposed of. JUDGE Comparing Assistant