Page No.# 1/4 GAHC040003642025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : IA(Crl)/23/2025 Tarh Tayang Age: 27 Occupation : Address:Son of Late Tarh Bagang permanent resident of Village Higa PO and PS Nyapin Kurung Kumey District Arunachal Pradesh and current resident of Village Tigdo PO and PS Doimukh Papum Pare District Arunachal Pradesh. VERSUS The State of AP and Anr Age: 0 Occupation : Address:represented by the PP of AP 2:Ms Tadar Ami Age: 0 Occupation : Address:Daughter of Tadar Mangming resident of Yan Colony PS Naharlagun Papum Pare District Arunachal Pradesh. ------------ Advocate for : Gegum Lollen Advocate for : P P of AP appearing for The State of AP and Anr: Advocate , appearing for 2, respectively. Page No.# 2/4 -BEFORE- HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY -O R D E R- 07.05.2025 1. Heard Mr. A Sharma, learned counsel for the petitioner. Also Ms. L Hage, learned Additional PP, Arunachal Pradesh and Mr. J Jini, learned counsel for the informant. 2. The present application is filed under Section 430 (1) of the BNSS, 2023, seeking suspension of sentence awarded to the applicant by way of the judgment and order dated 03.02.2025 by the learned Special Judge (POCSO) at Yupia in POCSO Case No. 24/2018, convicting the applicant under Section 6 of the POCSO Act, 2012 and sentencing him to undergo rigorous imprisonment for a term of 10 years and to pay fine of Rs. 50,000/-. 3. Mr. Sharma, learned counsel contends that the foundational fact of the age of the victim was not proved by the prosecution and therefore, on the said ground, the entire prosecution against the petitioner under POCSO is liable to be failed. He further contends that the deposition of the victim clearly shows that the relation between them was consensus and only when the petitioner avoided the victim and refused to marry, then only the FIR was lodged after one year from the date of commission of the alleged offence. Mr. Sharma further contends that the applicant was also at very vulnerable age of 19 years and the victim claimed to the aged about 16 years. Accordingly, he submits that the impugned judgment may be suspended and the petitioner may be set at liberty during the pendency of this appeal. 4. Per contra, the learned Additional Public Prosecutor submits that whether Page No.# 3/4 any foundation is laid or not is a matter of final determination by this court and therefore, in view of the clear determination made by the learned trial court holding the applicant guilty of the commission of offence under Section 6 of the POCSO Act, and taking note of the period of sentence, this court may not like to suspend the sentence. 5. The learned counsel for the informant also adopted the arguments advanced by the learned Additional Public Prosecutor. 6. This court has perused the material available on record including the deposition of the PW1. At this stage, this court cannot go into the details and nicety of the evidence laid by the prosecution. However, this court can very well appreciate whether prima-facie the foundation is laid, subject to final determination. This court after perusal of the evidence of the I/O is of the prima-facie view that the prosecution relied on xerox copy of a certificate issued by school authority ascertaining the age of the victim to be 16 years at the relevant point of time. However, admittedly the original certificate was not produced before the learned trial court, though subsequently, the original certificate was seized during trial and produced before the court. However, it is on record that the author of the certificate i.e. the Principal/ Headmaster was not brought to the witness box to prove the certificate. 7. Be that as it may, the issue remains whether the original matriculation certificate produced subsequently before the learned trial court can be a sole ground for determination of the age and whether such document is required to be proved by its author and same is to be considered at the time of taking final determination. 8. Considering the nature of evidence in this regard, and the matter in its entirety, this court is of the view that the petitioner has been able to make out a Page No.# 4/4 case for suspension of the sentence. 9. Accordingly, it is provided that the sentence awarded under the impugned judgment and order dated 03.02.2025 passed by the learned Special Judge (POCSO) at Yupia in POCSO Case No. 24/2018 shall remain suspended till the final determination that may be made. Accordingly, the petitioner be released on bail by the learned trial court subject to furnishing of a bail bond of Rs. 1,00,000/- with one surety to the satisfaction of the learned Special Judge (POCSO) at Yupia with the following terms and conditions: i) The accused petitioner shall not meet the victim; ii) The accused petitioner shall not leave the Papum Pare district without leave of the learned Special Judge (POCSO), Yupia; 10. The learned Special Judge (POCSO), Yupia may add any further condition for released of the petitioner on bail if deem fit. 11. The Application stands disposed of. JUDGE Comparing Assistant