Page No.# 1/6 GAHC010039852025 2025:GAU-AS:4783 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./566/2025 HAZRAT ALI S/O HAYDER ALI ADDRESS-AMINPARA, P.S.DHEKIAJULI PIN-784508, DIST. UDALGURI, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:JOHIRUL ISLAM S/OMD.SAMSUL HOQUE ADDRESS- BHAKUAMARI P.S. DHEKIAJULI PIN-784110 DIST.SONITPUR ASSA Advocate for the Petitioner : SWATI B BARUAH (TG), MR I AHMED Advocate for the Respondent : PP, ASSAM, MS M BORAH (R-2),MR M R ADHIKARI (R-2),MR. R P SARMAH (R-2) Page No.# 2/6 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK 22/04/2025 Heard Ms. S B Baruah, learned counsel for the petitioner and Mr. B Sarma, learned Additional Public Prosecutor, Assam for the State respondent No.1. Also heard Mr. R P Sarmah, learned Senior counsel assisted by Ms. M K Sarma, learned counsel for the informant/respondent No. 2. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Hazrat Ali, son of late Maidan Ali, resident of Bhakuamari, P.S. Dhekiajuli, District-Sonitpur, on 24.02.2025, seeking bail in Special (POCSO) Case No. 45/2023 arising out of Dhekiajuli Police Station Case No. 337/2022 corresponding to G.R. No. 2120/2022 in which charge under Sections 376(3)/302 IPC read with Section 6 of the POCSO Act was framed against the petitioner on 07.06.2023 and the matter is now pending before the Court of learned Special Judge (POCSO), Sonitpur, Tezpur in the trial stage. 3. It is submitted by the petitioner that he was arrested in connection with said Dhekiajuli P.S. Case No. 337/2022 on 16.11.2022 and since then, he is in custody for more than 2 years 5 months. 4. It is also submitted by the petitioner that recording of evidence of the prosecution witnesses is almost complete and considering his detention in custody since 16.11.2022 and the stage of the trial, the Court may consider the bail of the petitioner in said Special (POCSO) Case No. 45/2023 and if he is not released on bail, there is all possibility that he will not be able to defend his case properly, thereby he shall not have any fair trial in the said Special (POCSO) Case No. 45/2023. 5. Placing the evidence of some of the prosecution witnesses including the informant of the case, Ms. Baruah, learned counsel for the petitioner submitted that there are discrepancies in the evidence adduced by the prosecution and as such, he is entitled for bail. 6. Both Mr. B Sarma, learned Additional Public Prosecutor, Assam as well as Mr. R P Sarmah, learned Senior counsel appearing for the informant/respondent No. 2 submitted that prima-facie there are sufficient incriminating materials against the petitioner with regard to his involvement in the alleged crime and that at this stage of the trial, petitioner’s bail should not be considered. Page No.# 3/6 7. By order dated 03.03.2025, the Court called for the scanned copy of the records of Special (POCSO) Case No. 45/2023 along with the records of Dhekiajuli P.S. Case No. 337/2022. 8. From the records of the case, it is seen that the learned Trial Court, i.e., the Court of learned Special Judge (POCSO), Sonitpur, Tezpur, have already recorded the evidence of 20 nos. of witnesses adduced by the prosecution as well as 3 nos. of Court witnesses who were thoroughly cross-examined by the defence. 9. Perused the postmortem report of the deceased dated 15.11.2022 and the forensic reports including the finger print reports submitted by the Directorate of Forensic Science, Kahilipara, Assam. 10. From the records, it is also seen that on 15.11.2022 in the morning around 7:10 am, police in the Dhekiajuli Police Station received a telephone call that a girl was found dead inside her house. The said information was accordingly registered as Dhekiajuli P.S. G.D. Entry No. 387 dated 15.11.2022. On recording of such G.D. Entry, police personnel from Dhekiajuli Police Station visited the place of occurrence. 11. As per the written FIR dated 16.11.2022 lodged by the informant/respondent No. 2 elder brother of the deceased minor victim girl, the case is that on 15.11.2022 in the morning around 05:00 am, while the father of the informant proceeded to the Mosque for Jumma prayer, he called upon his daughter, i.e., the deceased and woke her up. After about 45 minutes when the father of the informant returned home, he found the minor sister of the informant dead inside her house. Police were accordingly informed by the neighbours and they arrived at the place of occurrence. Initially, on suspicion police apprehended the petitioner and during enquiry, the petitioner admitted that in absence of any person in the house, he committed rape on the minor sister of the informant and thereafter, killed her by strangulation. The said FIR of the informant/respondent No. 2 dated 16.11.2022 was accordingly registered as Dhekiajuli P.S. Case No. 337/2022 under Sections 376(3)/302 IPC read with Section 4 of the POCSO Act. 12. The postmortem report of the deceased indicated injuries (bite marks) on both the breast of the deceased, fingertip abrasions including fingernail abrasion on both the sides of the neck of the deceased and contusion over lateral aspect of the right side of the neck of the medial to right acromion process below to posterior to right ear lobule, which were ante-mortem manual strangulation by hand (throttling). 13. The Court witnesses, the personnel of Dog Squad also indicated as to how the concerned dog Page No.# 4/6 of the Dog Squad behaved indicating about the involvement of the accused petitioner in the alleged crime. The finger print experts as prosecution witnesses in their evidence indicated that the finger prints of the accused petitioner was matched with the finger prints found inside the house of the informant where the deceased was found dead. 14. It is already noted above that the prosecution have adduced evidence of 20 nos. of its witnesses and the Trial Court have also recorded evidence of 3 nos. of Court witnesses. 15. Ms. Baruah, learned counsel for the petitioner has relied on a judgment of the Hon’ble Supreme Court in the case of Javed Gulam Nabi Sheikh Vs. State of Maharashtra and Another reported in [2024] 7 S.C.R. 992 equivalent to 2024 INSC 645, wherein at paragraphs 18, 19 and 20, it provided as follows :- “18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations. 19. If the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. 20. We may hasten to add that the petitioner is still an accused; not a convict. The over- arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.” 16. On perusal of the said judgment of the Hon’ble Apex Court in the case of Javed Gulam Nabi Sheikh (Supra), it is seen that the concerned accused in the said case was taken into custody as 1193 nos. of counterfeit Indian currency notes of denominations of Rs.2000/- were recovered from his bag and he remained as an under trial prisoner for a period of 4 years where the Trial Court did not even Page No.# 5/6 proceed to frame charge and the concerned prosecution intended to examine not less than 80 witnesses. Considering such materials, the Hon’ble Supreme Court in the said case of Javed Gulam Nabi Sheikh (Supra) granted him bail. 17. However, in the present case, the petitioner was arrested in the evening of 16.11.2022. Charge-sheet was submitted on 07.06.2023 and the concerned Trial Court as on 21.08.2024 have recorded evidence of 20 nos. of prosecution witnesses and 3 nos. of Court witnesses and 01.04.2025 was the date fixed for recording of the evidence of the Investigating Officer of the case. 18. The Hon’ble Apex Court in the case of X -Vs.- State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC have held that — In serious offences like rape, murder, dacioty etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court should be loath in entertaining the bail application of an accused of the case.” 19. Their Lordships in said X -Vs.- State of Rajasthan further held that — “Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.” 20. From the above, it is seen that in the case in hand the right of the accused petitioner to have a speedy trial of said Special (POCSO) Case No. 45/2023 has not been infringed. 21. Considering such materials in the case records and for the reasons above, the Court is of the view that it is not a fit case to grant bail to the petitioner, Hazrat Ali, in said Special (POCSO) Case No. 45/2023 arising out of Dhekiajuli P.S. Case No. 337/2022 considering his detention in custody since 16.11.2022, which is for about two years and five months. Page No.# 6/6 22. Accordingly, this bail application of the petitioner, Hazrat Ali, in said Special (POCSO) Case No. 45/2023 arising out of Dhekiajuli P.S. Case No. 337/2022 stands rejected. JUDGE Comparing Assistant