Page No.# 1/3 GAHC010027962026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/203/2026 in CRL.A(J)/26/2026 SRI SWAPAN SHILL S/O- LATE SURESH SHILL RESIDENT OF JYOTI NAGAR COLONY P.S. SILIGURI DISTRICT-DARJEELING. VERSUS THE STATE OF ASSAM REPRESENTED BY PP ASSAM 2:SMTI RUMI SAIKIA W/O- SRI SWAPAN SEELR/O-LALGANESH ODALBAKRA P.O.- LALGANESH P.S.-FATASIL AMBARI DISTRICT-KAMRUP M ASSAM ------------ Advocate for : SUNITA MEDHI Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 20.07.2026 (M. Zothankhuma, J) Heard Ms. S. Medhi, learned counsel for the applicant-appellant. Also heard Mr. R.R. Kaushik, learned Addl. P.P for the State. Page No.# 2/3 2. This is an application under Section 430 BNSS for suspension of sentence imposed upon the applicant-appellant vide Judgment and Sentence order dated 16.02.2023, passed by the Court of the learned Special Judge (POCSO), Kamrup(M) in Sessions Case No.154/2018 (arising out of Dispur P.S. Case No.2262/2015), convicting the applicant-appellant under Section 6 of the POCSO Act and sentencing him to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for 6 months. 3. The applicant’s counsel submits that the victim being around 9 years at the time of the incident, it is highly unlikely that the victim would know the meaning of rape or sexual intercourse. She also submits that as per the Doctor's evidence, the hymen was intact, though there was redness around the private parts of the victim. She also submits that the mother of the victim, who was sleeping with the victim at the time of the incident, did not see the incident. She submits that when the mother of the victim was sleeping alongside the victim, the mother would have known about the alleged rape. The learned counsel thus submits that prima facie no case of rape having been made out, the sentence to be undergone by the applicant-appellant due to his conviction under Section 6 of the POCSO Act should be suspended. 4. Mr. R.R. Kaushik, learned Addl. P.P, on the other hand, submits that the evidence of the victim girl read with the corroborative evidence of the Doctor clearly goes to show that there had been a forceful attempt of rape on the victim by the applicant-appellant. He also submits that the evidence would show that there was slight penetration of the victim’s private parts by the applicant’s private parts, in view of the fact that there was redness and tenderness present Page No.# 3/3 around the hymenal orifice. 5. We have heard the learned counsels for the parties. 6. A perusal of the evidence shows that the allegation of rape made by the victim, who is 9 years old, has been corroborated to a certain extent by the Doctor's evidence, even though the hymen remained intact. 7. On considering the fact that the victim girl had clearly stated that she had been raped by the applicant and in view of the corroborative evidence of the Doctor, we are not inclined to allow the application at this stage. The application is accordingly rejected. 8. Any observations and findings made by this Court in this order shall not be construed to be the final observations and findings of this Court at the time of hearing the case on merits. JUDGE JUDGE Comparing Assistant