Page No.# 1/4 GAHC010065962025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/710/2026 SRI KHIRESWAR SAIKIA ALIAS BOGAI S/O SRI DURNA SAIKIA R/O VILL. NO 2 NABAJYOTI PO AND PS MERAPANI DIST GOLAGHAT ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP ASSAM 2:SMT GITANJALI BORA W/O SRI SITARAM BORA R/O NO 2 NABAJYOTI PS MERAPANI DIST GOLAGHAT ASSAM ------------ Advocate for : MS. N CHOUDHURY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER 08.09.2026 (M. Zothankhuma, J) 1. Heard Ms. N. Choudhury, learned Legal Aid Counsel for the applicant/appellant. Also heard Ms. A. Begum, learned APP and Mr. D.A. Kaiyum, learned counsel for the respondent no.2. 2. This is an application under Section 430 BNSS for suspending the sentence being undergone by the applicant in relation to the impugned judgment dated 03.09.2024 passed by the Special Judge (POCSO), Golaghat, in Special POCSO Case No.54/2021, by which the applicant has been convicted under Section 6 of the POCSO Act and has been sentenced to undergo rigorous imprisonment for 20 years, with a fine of Rs.15,000/- with default stipulation. 3. The case of the applicant is that there is nothing to connect the applicant with the crime in question and with the baby that died due to a miscarriage. The counsel for the applicant also submits that the doctor's evidence shows that the victim was around 14 to 16 years, in which case there should be a benefit of + 2 years added on to the age of the victim, as per the law laid down by the Honb’le Supreme Court in many cases. She accordingly submits that when the age of the victim is to be taken as 18 years as on the date of the incident, the provisions of the POCSO Act would not be applicable. She also submits that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence should be Page No.# 3/4 considered by the Appellate Court liberally, unless there are exceptional circumstances. In this regard, she has relied upon the judgement of the Supreme Court in the case of Bhagwan Rama Shinde Gosai and Others vs. State of Gujarat, reported in (1999) 4 SCC 421. 4. On the other hand, the counsels for the respondents submit that there is nothing in the evidence to show that there was any enmity between the appellant or his family vis-a-vis the victim and her family. Further, the age of the victim having been proved by a Birth Certificate, there was no requirement of determining the age of the victim on the basis of the evidence given by the doctor, especially in light of the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. They also submit that the applicant having been in judicial custody for around 5 years, does not entitle him to any leniency, especially when he is to undergo the minimum sentence of 20 years. 5. We have heard the learned counsels for the parties. 6. As can be seen from the evidence, there is nothing to show that there was any enmity between the family of the applicant and the victim. The victim carried a child and thereafter had a miscarriage due to a fall. We are of the view that the judgement of the Supreme Court in Bhagwan Rama Shinde Gosai (supra) would not be applicable to the facts of this case, inasmuch as, this case pertains to the rape of a minor girl and the punishment for which is provided in a special statute. Further, even under Section 436A Cr.P.C, grant of bail can be given to an undertrial prisoner (UTP), when the UTP has been in Page No.# 4/4 judicial custody for half of the period of sentence that may be handed down to it. In the present case, the applicant has not completed even half the sentence after conviction. Further, Paper Book has already been provided to the applicant’s counsel and the learned APP. The counsel for the respondent no.2 is also to be handed over a copy of the Paper Book within a week and as date of hearing has been fixed on 17.11.2026, we are not inclined to allow this application at this stage. 7. The application is accordingly rejected. JUDGE JUDGE Comparing Assistant