Page No.# 1/8 GAHC010008562025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/92/2025 SUSHIL DAS S/O SRI RATUL DAS RESIDENT OF VILLAGE RUPAHI GAON, PO AND PS GHILAMARA, DIST LAKHIMPUR ,ASSAM 787053 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM 2:SMTI PRIYADHANI RAY W/O BIPLAB RAY RESIDENT OF VILLAGE RUPAHI GAON PO AND PS GHILAMARA DIST LAKHIMPUR ASSAM 78705 Advocate for the Petitioner : MR. M K NEOG, MR. S K SINGHA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER 26.08.2025 Heard Mr. B. K. Mahajan, learned counsel for the applicant/appellant. Also heard Mr. R. J. Baruah, learned Addl. P. P., Assam appearing for the State and Page No.# 2/8 Mr. S. Khound, learned counsel representing the respondent No.2. 2. This is an application filed by the applicant under Section 430 of the BNSS, 2023 for granting of bail to the applicant in connection with the conviction and sentencing order dated 24.12.2024 passed by the learned Special Judge (POCSO), Lakhimpur in Special (POCSO) Case No.125/2019 by which the applicant was convicted under Section 4 of the POCSO Act and sentenced to undergo rigorous imprisonment for 10 years with fine and default stipulation. 3. The fact of the case is that on 21.12.2019 the mother of the victim lodged an ejahar at Ghilamara Police Station alleging that on 09.11.2019 at around 10:00 P.M. the applicant called her 14 years old daughter over phone in a garden and raped her there. It was also stated by the informant that the applicant had enticed her by showing his love towards her. On receipt of the F.I.R. the police registered the case under Section 376(3) of the IPC read with Section 4 of the POCSO Act and on completion of the investigation the police submitted charge-sheet under the aforesaid provisions of law and thereafter on fulfillment of other requirements, the charges were framed against the applicant and the trial was conducted and on completion of the trial the applicant was punished as stated above. 4. Mr. B. K. Mahajan, learned counsel appearing for the applicant submits at the very outset that the age of the victim was not conclusively proved in the instant case. He submits that although it is in the evidence that birth certificate Page No.# 3/8 of the victim was seized but the same was not exhibited by the Investigating Officer whereas the mother of the victim had stated during her deposition that the victim was 14 years of age. However, he had also placed that the mother of the victim in her cross-examination stated that she does not remember the date of her marriage nor the date of her daughter’s birth. Mr. Mahajan further submits that in absence of any documentary evidence relating to the age of the victim, the medical evidence may be relied upon and in the instant case the doctor has opined that the age of the victim would be between 15 to 17 years and by giving the margin of 2 years on either side as held by the Apex Court in a number of decisions the age of the victim would be 19 years by giving 2 years on the higher side to the benefit of the accused person as has been held by the Apex Court. As such, he submits that the age of the victim would be 19 years and she is a major not a minor which, however, was not considered at all by the learned Trial Court. To substantiate his argument, Mr. Mahajan has placed the following judgments (1) Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir and others reported in (1982) 2 SCC 538, (2) Utpal Debnath Vs. State of Assam reported in (2023) 3 GLT 816 and (3) Mithun Rajbongshi Vs. State of Assam and another [delivered by Gauhati High Court in Criminal Appeal No.94/2021]. 5. Mr. Mahajan also submits that the statement of the victim was not consistent before all the authorities inasmuch as she had not stated about the applicant gagging her mouth during the occurrence before the Trial Court which she had stated before the Magistrate and the police. Mr. Mahajan also submitted Page No.# 4/8 that in case the sentence is given for a fixed period, bail should be a rule and rejection of the same is an exception. To substantiate this argument he has also relies on Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat reported in (1999) 4 SCC 421. 6. On the other hand, Mr. R. J. Baruah, learned Addl. P.P., Assam by filing written objection has submitted that it is clearly stated by the doctor in his evidence that the age of the victim would be between 15 and 17 years and that the mother had also stated that the victim was 14 years of age and as such it is proved that the victim was minor. He also submits that the Trial Court had relied on Ext-4 i.e. the report of the doctor in order to establish the said fact. He also submits that the statement of the prosecutrix is consistent before all the authorities as to the core spectrum of the incident is concerned. As such, he prayed that no bail may be granted. 7. Mr. S. Khound, learned counsel for the respondent No.2, however, had taken a preliminary ground of objection in the said proceeding. He raised the issue of maintainability of the instant application and has stated that the said Interlocutory Application is not maintainable inasmuch as the applicant had not prayed for suspension of the sentence in the said application and that only bail was prayed for on behalf of the applicant. To substantiate his argument he has placed Section 430 of the BNSS which provides that the Court may suspend the sentence and release the applicant on bail during pendency of the appeal. He has placed reliance on the following judgments : Page No.# 5/8 (1) Ashwani Kumar Saxena Vs. State of Madhya Pradesh [ (2012) 9 SCC 750] wherein the Hon’ble Apex Court has observed that in case of exact assessment of age, the court may give the benefit to the child or juvenile by considering the age within the margin of one year. (2) State of Madhya Pradesh Vs. Anoop Singh [(2015) 7 SCC 773] by which the Apex Court has observed that in absence of the birth certificate or any other certificate as provided under Rule 12 of Juvenile Justice Rules, 2007, the ossification test may be relied on. (3) Janardan Ray Vs. State of Bihar and another [ Judgment delivered by Supreme Court in Criminal Appeal Nos.1892-1893 of 2025] by which the Apex Court has held that suspension of sentence and the consequent bail may be granted only in rare and exceptional cases. As such, Mr. Khound submits that no bail may be granted to the applicant at this stage. 8. I have heard the learned counsel for the parties and have gone through the materials available on record. 9. It is no res integra that while considering the application for suspension of sentence and the consequent bail during pendency of the appeal the Court may only see the prima facie case. It is also no res integra that the conviction under the POCSO Act can be granted on the sole basis of the statement of the prosecutrix provided the same is consistent before all the authorities and the same inspires the confidence of the Court. 10. The Apex Court in a catena of judgments had observed that the Page No.# 6/8 statement of the prosecutrix right from the beginning i.e. before the police and till her statement before the Trial Court should be consistent not only to the core spectrum of the case but also to the sequence of the case. In Rai Sandeep Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 the Apex Court has held the above observation. 11. It is noticed in the instant case that the victim had stated in her evidence before all the authorities that she and the applicant were in relationship with each other and on the night of occurrence the applicant had called her at a particular place to which she went on her own volition and where she stated that the applicant had forced her into physical intimacy and that both of them had gone to their respective houses thereafter. She has also stated that when she missed her menstrual cycle she got scared and she told her family members about the incident and only then the incident came to light and the ejahar was lodged against the applicant. In her statement before the police and the Magistrate she stated that the applicant had gagged her mouth during the incident and as such she could not shout. However, before the Trial Court she did not say about the said fact. Although in one of her statement in the cross- examination she simply stated that she could not shout because the accused gagged her but in her examination-in-chief she did not give the consistent sequence of this incident. 12. Further, it is a settled position of law that 2 year margin has to be given to either side while calculating the age of the victim based on medical report. In the instant case, the doctor reported that the age of the victim was between 15 Page No.# 7/8 and 17 years and it has been held by the Hon’ble Apex Court that the benefit should go to the accused while giving that 2 years margin. Further, although the birth certificate was seized by the police but the same was not exhibited during the trial and as such, the same cannot be taken into consideration in the instant case as per law. 13. In view of the further submission of non-maintainability of the present petition, this Court has observed that Section 430 of the BNSS provides that the Appellate Court pending the appeal for reasons to be recorded in writing, order that the sentence may be suspended and if the applicant is in confinement be released on bail. 14. As such, in view of the discussions made above, this Court finds it fit to suspend the sentence imposed upon the applicant and release him on bail during the pendency of the connected Criminal Appeal on furnishing a bail bond of Rs.50,000/- with two local sureties of the like amount to the satisfaction of the learned Special Judge (POCSO), Lakhimpur, North Lakhimpur on the following conditions :- (1) That the applicant will not approach the victim or her family members. (2) That the applicant will not harass the victim or her relatives in any manner. 15. It is made clear that the observations made herein are solely for the purpose of disposal of the instant I.A. and the same shall not have any bearing Page No.# 8/8 on the merits at the time of final hearing and disposal of the connected appeal. 16. The I.A. stands disposed of. JUDGE Comparing Assistant