Page No.# 1/4 GAHC010279372025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/55/2026 AMZAD ALI SHEIKH SO LATE SEBAT ALI, R BHARALUPAR, KATAHBARI 4 NO MASZID GALI, PS GORCHUK, DIST KAMRUP M, ASSAM, PERMANENT ADDRESS VILL PANBARI, PO PODMERALGA, PS FAKIRGANJ, DIST DHUBRI, ASSAM, PIN 783330 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:AKBAR ALI SO LATE HASEN ALI RO BHARALUPAR KATAHBARI 4 NO MASZID GALI PS AND PO GORCHUK DIST KAMRUP M ASSAM PIN 78103 Advocate for the Petitioner : MR ABDUL MOBARAQUE, MR. S P CHITTAWAT,MR. A MOBARAQUE Advocate for the Respondent : PP, ASSAM, Linked Case : Crl.A./19/2026 Page No.# 2/4 AMZAD ALI SHEIKH SO LATE SEBAT ALI RO BHARALUPAR KATAHBARI 4 NO MASZID GALI PS GORCHUK DIST KAMRUP M ASSAM PERMANENT ADDRESS VILL PANBARI PO PODMERALGA PS FAKIRGANJ DIST DHUBRI ASSAM PIN 783330 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM 2:AKBAR ALI SO LATE HASEN ALI RO BHARALUPAR KATAHBARI 4 NO MASZID GALI PS and PO GORCHUK DIST KAMRUP M ASSAM PIN 781035 ------------ Advocate for : Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date :23/07/2026 (Michael Zothankhuma, J) 1. We have heard Mr. A. Mobaraque, learned Counsel for the applicant/appellant. Also heard Mr. R. R. Kaushik, learned APP, appearing for the State. Page No.# 3/4 Mr. A. Sinha, learned counsel appears on behalf of Ms. D. Ghosh, learned counsel for the respondent no. 2. 2. The applicant has filed this application under Section 430 BNSS for suspension of the sentence to be undergone by the applicant/appellant pursuant to the impugned judgment dated 11.09.2025 and the order dated 24.09.2025, passed by the learned Additional Sessions Judge cum-Special Judge (POCSO), Kamrup (M) Guwahati, in Sessions Special Case No. 221/2024, by which the applicant has been convicted under section 4 (2) of the POCSO Act as well as under Section 65 (1) of the BNS. 3. The appellant's counsel submits that the evidence of the victim is the sole basis for conviction of the applicant/applicant, even though the evidence of the Doctor does not corroborate the testimony of the victim that she had been raped by the applicant/appellant. The appellant's counsel further submits that the entire case had been fabricated, only on account of the applicant demanding his wages from the victim's father under whom he worked as a labourer. 4. The learned APP on the other hand, submits that the testimony of the victim is consistent and the fact that there were old tears in the hymen at 3, 6 and 9 O’clock position, corroborates the testimony of the victim that she had been raped. 5. The victim has testified that she had been raped by the applicant/appellant and the testimony of the Doctor (PW-6) is to the effect that the victim’s hymen had old tears at 3, 6 and 9 o'clock position. The medical examination of the victim by PW-6 also shows that there was no injury on the private parts of the victim. 6. It is settled law that absence of injury does not mean that no rape has been committed. Further, in view of the law laid down by the Supreme Court that conviction can be based on the sole testimony of the victim and keeping in view the fact that the Page No.# 4/4 hymen of the victim has old tears, we are not inclined to allow this application at this stage. Accordingly the application is rejected. 7. Any observation or findings made in this order shall not be construed to be the final observations or findings of this Court at the time of hearing the appeal on merit. 8. IA is accordingly disposed of. JUDGE JUDGE Comparing Assistant