Page No.# 1/4 GAHC010012402024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/69/2024 BABUL ALI S/O AMZAD ALI, VILL. AND P.O.- BANDARKHOWA, P.S.- SORBHOG, DIST.- BARPETA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE P.P., ASSAM. 2:KOD BHANU W/O LATE KAMAL HOQUE VILL. AND P.O.- BALABHITA P.S.- BARPETA ROAD DIST.- BARPETA ASSAM Advocate for the Petitioner : MR. R ALI, MR H A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 04.06.2025 [M. Choudhury, J] Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. A.M. Ahmed, learned counsel for the applicant-appellant; Ms. B. Bhuyan, learned Page No.# 2/4 Senior Counsel & Additional Public Prosecutor for the opposite party no. 1- respondent no. 1, State of Assam; and Ms. S. Khataniar, learned Legal Aid Counsel for the opposite party no. 2-respondent no. 2. 2. The instant application under Section 389, Code of Criminal Procedure, 1973 is preferred seeking suspension of execution of the sentence passed against the applicant-appellant and for his release on bail. 3. The applicant as the appellant has preferred the accompanying criminal appeal, Crl.A. no. 18/2024 to assail a Judgment and Order dated 06.01.2024 passed by the Court of learned Additional Sessions Judge-cum-Special Judge [POCSO], Barpeta [‘the Special Court’, for short] in Special POCSO Case no. 132/2023. By the Judgment and Order dated 06.01.2024, the learned Special Court finding the applicant-appellant guilty of the offence under Section 4[2] of the Prevention of Children from Sexual Offences Act, 2012, has sentenced him to undergo rigorous imprisonment for twenty years and to pay a fine of Rs. 10,000/-, in default of payment of fine, to undergo simple imprisonment for two years. 4. Mr. Choudhury, learned Senior Counsel appearing for the applicant-appellant has submitted that the incident of sexual assault had been alleged to have occurred on 25.05.2023 and the complaint was lodged before the Court only on 03.06.2023. Thereafter, the Medical Examination of the victim was done on 06.06.2023. The applicant-appellant had denied the incident which was alleged to have taken place in his house, by taking the plea of alibi. The Medical Examination Report did not reveal anything adverse against the applicant- appellant. There are number of inconsistencies in the prosecution evidence, which are on material points. He has further questioned the age of the alleged Page No.# 3/4 victim. 5. On the other hand, Ms. Bhuyan, learned Senior Counsel and Additional Public Prosecutor as well as Ms. Khataniar, learned Legal Aid Counsel have objected the prayer for bail of the applicant-appellant by submitting that evidently, the victim was child on the date of the alleged incident and she was found to be consistent on the issue of sexual assault. 6. In order to consider the prayer for suspension of execution of sentence, we have gone through the evidence/materials available in the case record of Special POCSO Case no. 132/2023 to have prima facie consideration as regards the merits of the submissions made on behalf of the applicant-appellant. 7. During the course of the trial, a Birth Certificate issued by the Department of Health Services, Government of Assam was produced as a material exhibit. As per the Birth Certificate, the date of birth of the victim was 02.03.2008. Therefore, on the date of the alleged incident, 25.05.2023, the victim was below 16 years. Having gone through the contents of the complaint lodged on 03.06.2023 and the statement of the victim recorded under Section 161, CrPC as well as under Section 164, CrPC and her testimony as P.W.2 before the Court, prima facie the victim was found to be consistent on the material points as regards commission of sexual assault. As medical examination was conducted on 06.06.2023, it cannot be accepted that there would be any clinching evidence relating to the alleged sexual assault. There was explanation regarding the reasons for approaching the Court with delay. 8. It is settled that while considering the application for suspension of the execution of the sentence at the stage under Section 389 CrPC, what is to be Page No.# 4/4 looked into is whether there is something palpable or apparent on the face of the record on the basis of which the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court while considering an application under Section 389, CrPC. is not supposed to reappreciate the evidence meticulously to pick up few lacunas or loopholes here and there in the case of the prosecution. 9. Having gone through the evidence/materials on record, this Court is of the considered view that the applicant-appellant has not been able to made out a prima facie case for suspension of execution of the sentence passed against him and for his release on bail. Resultantly, the instant application is rejected. 10. It is, however, made clear that the observations made hereinabove are only for the purpose of considering the prayer for suspension of execution of the sentence and grant of bail to the applicant-appellant and the same shall not be construed as observations made with regard to the merits of the connected appeal. JUDGE JUDGE Comparing Assistant