Gauhati High Court
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GAHC010057902020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/254/2020
SRI SHANKAR MALAKAR
S/O- LATE SURI MALAKAR, R/O- VILL.- NAGAR SUKACHERRA, P.O.
NAGAR T.E, P.S. UDHARBOND, SUB-DIVN.- SILCHAR, DIST.- CACHAR, PIN-
788030. ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PUBLIC PROSECUTOR, ASSAM.
2:SRI MICHRILAL NUNIA
S/O- LATE BHULA NUNIA
R/O- VILL.- NAGAR SUKACHERRA
P.O. NAGAR T.E.
P.S. UDHARBOND
SUB-DIVN.- SILCHAR
DIST.- CACHAR
PIN- 788030
ASSAM
Advocate for the Petitioner : MR. R ALI
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./115/2020
SRI SHANKAR MALAKAR
S/O- LATE SURI MALAKAR
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R/O- VILL.- NAGAR SUKACHERRA
P.O. NAGAR T.E
P.S. UDHARBOND
SUB-DIVN.- SILCHAR
DIST.- CACHAR
PIN- 788030. ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PUBLIC PROSECUTOR
ASSAM.
2:SRI MICHRILAL NUNIA
S/O- LATE BHULA NUNIA
R/O- VILL.- NAGAR SUKACHERRA
P.O. NAGAR T.E.
P.S. UDHARBOND
SUB-DIVN.- SILCHAR
DIST.- CACHAR
PIN- 788030
ASSAM.
------------
Advocate for : MR. R ALI
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 02-03-2021
Heard Mr. R. Ali, learned counsel for the applicant/appellant. Also heard Mr. B.B. Gogoi,
learned Addl. Public Prosecutor, Assam appearing for the State/respondent No. 1.
This interlocutory application under Section 389 Cr.P.C. is filed by the applicant/appellant
in Crl. Appeal No. 115/2020, praying for suspension of operation of the impugned judgment
and order, dated 15.02.2020 passed in Spl. (POCSO) Case No. 30/2017 against him and for
releasing him on bail.
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It may be mentioned that by the said impugned judgment and order of conviction, the
applicant is sentenced to undergo rigorous imprisonment for a period of 10 years and to pay
a fine of Rs.10,000/-, in default to suffer simple imprisonment for 2 months under Section 6
of the POCSO Act.
The prosecution case, in brief, is that an ejahar was lodged on 06.07.2012 before the
Officer-in-Charge of Udharbond P.S. alleging that 6 months ago, the applicant/appellant
entered into the house of the informant and raped his minor daughter, aged about 17 years,
when she was alone, for which reason she carried 5 months pregnancy.
Mr. R. Ali, learned counsel for the applicant/appellant, submits that the applicant is aged
about 88 years and has been suffering from old age ailments. Mr. Ali further submits that the
applicant has been undergoing treatment for diseases like severe cough, difficulty in
respiration, irregular bowel syndrome, general weakness, frequent urination and dryness of
mouth at night and other ailments. Mr. Ali, therefore, submits that the applicant requires
urgent medical attention and care regularly and he is fully dependent on others to survive
along with regular intake of medicines as prescribed by the doctor. Referring to the evidence
on record, Mr. Ali submits that the applicant has been convicted on uncorroborated testimony
of the interested prosecution witnesses and in fact no such alleged incident had taken place
and that the entire case is a false and concocted one against him.
Mr. B.B. Gogoi, learned Addl. Public Prosecutor has vehemently raised objection against
the application, inter-alia, on the grounds that the case is established beyond reasonable
doubt to the effect that the victim was a minor girl and as a result of rape by the accused,
she carried pregnancy of about 6 months at the time of examination. Mr. Gogoi further
submits that the said incident came to light when the victim's abdomen inflated and on
suspicion of pregnancy, the family members and others interrogated her. Therefore, Mr. Gogoi
submits that the application may be dismissed.
With regard to the medical condition of the applicant, who is lodged in the Central Jail
at Silchar, Mr. B.B. Gogoi, learned Addl. Public Prosecutor informs that as per Jail doctor's
telephonic report, the applicant, who is aged about 80 years, had suffered from some
respiratory problem and after treatment, he has recovered.
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I have given due consideration to the above submissions made by the learned counsel
of both sides and perused the case record.
A perusal of the F.I.R., dated 06.07.2017 vide Ext.-1, it is seen that the same was lodged
after lapse of about 6 months, when the pregnancy of the victim girl (P.W. 1) came to the
notice of her family and neighbouring people. The victim (P.W.-1) in her evidence and
statement under Section 164 Cr.P.C. vide Ext. 4 implicated the accused as the person who
made her pregnant. Although there was no eye witness to the alleged occurrence that took
place on several days, on interrogation by P.W. 2, her father, her relatives P.W. 3, P.W. 5, the
victim disclosed the entire incident. P.W. 4, a neighbour, stated that when the victim girl held
the accused by his neck, he confessed his guilt. P.W. 6, who is the Secretary of local Mahila
Committee, stated that when the incident was reported to her, she advised to report to the
police. From the evidence of P.Ws more particularly, P.Ws 1, 2 and 7, it appears that the
accused frequently visited the house of the informant (P.W. 2) in connection with bamboo and
timber business.
Apart from the above, the medical evidence of P.W. 8 shows that on the date of
examination, the victim (P.W. 1) was aged above 16 years and below 18 years and she
carried pregnancy of about 18 weeks 3 days + one week. Thereafter, the victim delivered a
baby.
Thus, on an overall bare appreciation of the evidence led by the prosecution in the case
shows prima facie case against the accused and the same is, of course, subject to a detail
scrutiny at the time of final hearing of the connected appeal.
However, keeping in consideration of the length of detention of the accused and as the
accused has been reportedly suffering from old age ailments being aged about 87/88 years,
this Court is of the opinion that unless he is released on interim bail, he may likely to be
deprived of proper medical treatment and good care of him.
Accordingly, it is provided that the operation of the sentence passed vide the impugned
judgment and order, dated 15.02.2020 in Spl. (POCSO) Case No. 30/2017 shall remain
suspended till disposal of the connected Crl. Appeal No. 115/2020 and the accused/appellant
shall be released on bail of Rs.50,000/- (Rupees Fifty Thousand) with two sureties of
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the like amount to the satisfaction of the learned Sessions Judge-cum-Special Judge
(POCSO Act), Cachar, Silchar.
Registry to list the connected appeal for early hearing.
With the above direction, the interlocutory application stands disposed of.
JUDGE
Comparing Assistant
