Md. Abdul Noor vs The State Of Assam And Anr
2021 Latest Caselaw 234 Gua

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GAHC010031252020




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : I.A.(Crl.)/208/2020 in Crl.A./91/2020

            MD. ABDUL NOOR
            S/O- LATE IDRIS ALI, VILL.- HILCHAR, P.O. SRIGOURI, P.S. BADARPUR,
            DIST.- KARIMGANJ, ASSAM, PIN- 788806.

            VERSUS

            THE STATE OF ASSAM AND ANR
            TO BE REP. BY THE PUBLIC PROSECUTOR, ASSAM.

            2:MD. ABDUL HAKIM
             S/O- LATE WAID ALI
            VILL.- HILCHAR, P.O. SRIGOURI, P.S. BADARPUR
             DIST.- KARIMGANJ, ASSAM, PIN- 788806

Advocate for the Petitioner    : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM


                                    BEFORE
                     HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                      HON'BLE MR. JUSTICE SOUMITRA SAIKIA

                                             ORDER

27.01.2021 [N. Kotiswar Singh, J.]

Heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by Mr. A. Ahmed for the

applicant/appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam,

appearing for the respondent No.1.

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2. The present application has been filed for enlargement of the applicant/appellant on

bail during the pendency of the appeal.

3. Learned Senior counsel for the applicant has stated that there is a genuine doubt

about the age of the victim girl as to whether she was minor or not when the alleged offence

took place. According to the learned Senior counsel for the applicant, as per the radiological

examination report, the age of the victim was found between 16 and 17 years and as such

there is a distinct possibility that she would be above 18 years by adding a margin of error of

2 years.

4. Further, as regards the DNA profiling to determine the paternity of the child born by

the victim girl, it has been submitted that there are discrepancies in the manner in which the

blood samples were collected. However, these discrepancies were not considered by the

learned Trial Court. Further, it has been submitted that as regards the Exbts.-26 and 27, which

are the so called school certificates issued, these were issued only after the charge-sheet was

framed and as such their authenticity cannot be taken for granted.

5. Learned Senior counsel for the applicant relying on the decision of the Hon'ble

Supreme Court in Anil Ari Vs. State of West Bengal1, submits that since the appellant is

71 years old, the applicant may be released on bail.

In Anil Ari (supra), the appellant therein was 70 years old and was released from jail

by the Hon'ble Supreme Court on being convicted by the Trial Court under Section 342, 302

and 201 read with Section 34 of the IPC. It has also been submitted that in the said case, the

appellant had been in jail for nearly one year and he was on bail during the trial. In the

1 (2009) 11 SCC 363 Page No.# 3/5

present also, the appellant was on bail during the trial and he has remained in jail for about a

year.

6. On the other hand, Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam has

submitted that direct evidence of the victim girl clearly indicates that the appellant was the

perpetrator of the crime and the date of birth certificate has not been disproved to be

incorrect.

7. Heard learned counsel for the parties and also perused the impugned judgment and

order.

8. Perusal of the impugned judgment and order clearly indicates that the Trial Court had

duly considered the probity of the Exbts.-26 and 27 in the court and the Trial Court held that

the applicant did not dispute the genuineness of Exbt.-27 and that it did not mention the

correct date of birth of the victim. Accordingly, since the applicant had failed to impeach the

genuineness of the Exbt.-27 and its contents, the learned Trial Court held the same to be

proved.

9. As regards radiological examination report, the Trial Court took a view that it

corroborates the minority of the victim girl as indicated in Exbts.-26 and 27. As regards the

inconsistencies submitted by the learned Senior counsel for the applicant, this Court finds that

the said issue was duly considered by the learned Trial Court specifically in paragraph 6 of the

judgment.

10. We are of the view that these pleas raised at this stage can be duly considered at the

final hearing of the connected appeal, but we are not inclined at this stage to accept the said

pleas to be sufficient for enlarging the applicant on bail in view of the findings arrived at by Page No.# 4/5

the learned Trial Court.

11. As far as the decision in Anil Ari (supra) referred to is concerned, the matter relates to

conviction under Section 342, 302 and 201 read with Section 34 of the IPC, where as many

as 16 persons were charged but in the present case, the matter relates to conviction under

POCSO Act of which the applicant is the lone accused, who had been convicted by the Trial

Court on the basis of the evidence on record including the testimonial evidence of the victim

girl.

12. In the said case of Anil Ari (supra), the Hon'ble Supreme Court considering the

peculiar facts of the case and considering the age of the appellant directed for his release.

13. However, we have also noted that in Anil Ari (supra), the Hon'ble Supreme Court

referred to a decision in Vijay Kumar Vs. Narendra2, that while considering the prayer for

bail in the case involving serious offence like murder punishable under Section 302 IPC, the

court should consider the relevant factors like the nature of accusation made against the

accused, the manner in which the crime is alleged to have been committed, the gravity of the

offence and the desirability of releasing the accused on bail after they have been convicted

for committing the serious offence of murder.

14. In the present case, what we have noted is that the victim girl had categorically stated

that when she had gone to fetch water from the pond of the appellant, the appellant had

called her inside his house and thereafter, as soon as she entered his house, he locked the

door from inside and took her inside his bedroom and he grabbed her mouth and removed

her clothes forcibly and thereafter committed sexual intercourse with her and the appellant

2 (2002) 9 SCC 364 Page No.# 5/5

warned her not to speak of the incident. She also testified that the applicant committed

sexual intercourse with her for 4/5 times thereafter as well. According to her, after several

days her mensuration stopped and when she informed the applicant, he told her that he

would give her some medicine.

15. Without going into the evidence in detail at this stage, which shall be considered at the

time of hearing, what appears is that the victim girl had clearly identified applicant/appellant

to be the perpetrator of the crime and as such we are of the view that the facts in the

aforesaid case of Anil Ari (supra) are different from the present case and hence, the said

decision may not be applicable in the present case. Accordingly, we are not inclined to allow

this application for bail and the same stands dismissed.

16. However, considering the plea of the applicant that he is about 71 years old now, an

attempt will be made to dispose of the connected appeal at the earliest, for which the

Registry shall prepare the paper book and list for hearing after a month.

               Sd/- Soumitra Saikia                Sd/- N. Kotiswar Singh
                         JUDGE                                JUDGE




Comparing Assistant