Page No.# 1/4 GAHC010126062025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/631/2025 in CRL.A(J)/71/2025 PRAKASH BAISHYA @ BAPA S/O. SRI BALO BAISHYA R/O. VILL.- PUB KHAIRAJANGAL P/O. HATIGARH P/S. PANERI DIST. UDALGURI (B.T.R) ASSAM. VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP ASSAM 2:NABIN PANIKA S/O. LT. SAMBHU PANIKA R/O. VILL.- PUB KHAIRAJANGAL P/S. PANERI DIST. UDALGURI ASSAM PIN-784524 ------------ Advocate for : MR. A GOGOI Advocate for : ADDL PP ASSAM appearing for THE STATE OF ASSAM AND ANR BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 09.09.2026 (M. Zothankhuma, J) Heard Ms. N. Choudhury, learned counsel for the applicant/appellant. Also heard Mr. R. R. Kaushik, learned Addl. PP, Assam and Mr. B. Sharma, learned counsel for the Page No.# 2/4 Respondent No. 2. 2. The instant application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is preferred seeking suspension of execution of the sentence passed against the applicant-appellant and for his release on bail. 3. The applicant as appellant has preferred the accompanying criminal appeal against the Judgment dated 09.04.2025 and the Order of Sentence dated 11.04.2025 passed by the Court of learned Special Judge, Udalguri in Special (POCSO) Case no. 25/2024, arising out of Panery Police Station Case no. 50/2023. By the Judgment dated 09.04.2025 and the Order on Sentence dated 11.04.2025, the applicant- appellant has been convicted for the offences under Section 376(3) IPC and under Section 4 of the POCSO Act. In view of Section 42 of the POCSO Act, the applicant/appellant has been sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs. 20,000/-, with default stipulation, under Section 376(3) IPC. 4. The applicant’s counsel submits that the FIR filed by PW-1 is to the effect that the victim had become pregnant on account of being raped by the applicant. However, during her testimony, PW-1 has stated that the victim, who was her niece, was not pregnant and that it had been wrongly written in the FIR and in her 161 Cr.PC statement that the victim had become pregnant. 5. The evidence of the victim does not speak of she being made pregnant, though she has accused the applicant of having raped the victim. The evidence of PW-4 is to the effect that she conducted a pregnancy test on the victim and found her to be pregnant. The evidence of PW-7, who is the Investigative Officer, is to the effect that on 20.04.2023, he examined the victim through the Medical Officer, Udalguri Civil Hospital and opined that the pregnancy test was negative. Page No.# 3/4 6. As held by the Supreme Court in the case of Rai Sandeep @ Deepu vs. State (NCT) of Delhi reported in (2012) 8 SCC 21, the stand of a sterling witness is supposed to be consistent from the very beginning to the end. 7. In the present case, the victim in her Section 164 Cr.PC statement has stated that she was two months pregnant. Due to the above discrepancies, we are of the view that corroboration of the testimony of the victim is required. However, the victim was never taken before the Medical Officer for medical examination, though PW-7 had stated that “he examined the victim through the Medical Officer, Udalguri Civil Hospital”. 8. The above evidence of PW-7 can only be said to be hearsay evidence, as the person who allegedly conducted the medical examination, has not been examined and there is no document to prove the same. Though PW-6 has stated that the applicant had confessed before him that he had raped the victim, we find that there are a number of discrepancies in the evidence of the other witnesses. 9. It is surprising to note that while an expert was present at the time of recording the statement of the victim, who was apparently deaf and dumb, under Section 164 Cr.PC, there was no expert at the time of recording her testimony before the learned Trial Court, in terms of Section 119 IPC, though the earlier attempt of recording the statement of the victim under Section 164 Cr.PC had not taken place, due to the absence of an expert. 10. We are accordingly of the view that the applicant has made out a case for suspension of the sentence being undergone by him. Accordingly, the sentence being undergone by the applicant, pursuant to the impugned judgment dated 09.04.2025, passed by the learned Sessions Judge, Udalguri in Special (POCSO) Case no. 25/2024 is hereby suspended till final disposal of the appeal. Consequently, the applicant is Page No.# 4/4 granted bail on a bail bond of Rs.30,000/-, with one surety of like amount, to the satisfaction of the learned Trial Court. 11. The I.A. is accordingly disposed of. 12. Any finding or observation made in this order shall not be construed to be final finding and observation of this Court at the time of hearing of the appeal. JUDGE JUDGE Comparing Assistant