Gauhati High Court
Page No.# 1/4 vs State Of Assam And Anr on 23 November, 2021
Page No.# 1/4
GAHC010183842019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/22/2021
SRI UTPAL BORAH
S/O- KUNJA BORAH,
R/O- KUNDAR BARI, BORA CHUBURI,
P.S.- TEZPUR, P.O.- DEKARGAON, DISTRICT- SONITPUR, ASSAM, PIN-
784501.
VERSUS
STATE OF ASSAM AND ANR
REPRESENTED BY PP, ASSAM
2:JATIN SAIKIA
S/O- LATE BIHU SAIKIA
R/O- VILLAGE MILONPUR SAKIA CHUBURI
P.S.- TEZPUR
P.O.- DIPOTA
DISTRICT- SONITPUR
PIN- 784150
Advocate for the Petitioner : MR. P K DEKA
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./12/2021
SRI UTPAL BORAH
S/O- KUNJA BORAH
R/O- KUNDAR BARI
BORA CHUBURI
P.S.- TEZPUR
P.O- DEKARGAON
DIST- SONITPUR
ASSAM
PIN- 784501.
Page No.# 2/4
VERSUS
STATE OF ASSAM AND ANR
REPRESENTED BY PP
ASSAM.
2:JATIN SAIKIA
S/O- LATE BIHU SAIKIA
R/O- VILLAGE MILONPUR SAKIA CHUBURI
P.S.- TEZPUR
P.O.- DIPOTA
DISTRICT- SONITPUR
PIN- 784150.
------------
Advocate for : MR. P K DEKA
Advocate for : PP
ASSAM appearing for STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
23-11-2021
Heard Mr. P.K. Deka, learned counsel representing the appellant-applicant. Also
heard objection of Mrs. S.H. Bora, learned Additional Public Prosecutor
appearing for State respondent.
This interlocutory application, under Section 389 of the Cr.P.C., is filed for grant
of bail to the applicant-appellant and stay of the judgment and order, dated 10-
09-2018, passed by the learned Special Judge/Additional Sessions Judge (FTC),
Sonitpur, Tezpur, in Special (POCSO) Case No. 45/2017, convicting the appellant-
applicant and sentencing him to suffer rigorous imprisonment for seven years
and to pay a fine of Rs.2,000/-, with default clause for offence under Section 4
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of the POCSO Act. He was also sentenced to undergo simple imprisonment for
three years and to pay a fine of Rs.2,000/-, with default clause for offence
under Section 366-A of the IPC. The applicant-appellant was further sentenced
to undergo rigorous imprisonment for three months and to pay a fine of
Rs.500/- with default clause for offence under Section 342 of the IPC.
While referring to the evidence of six prosecution witnesses, the learned counsel
for the applicant-appellant has submitted that the prosecution has filed to make
out a case beyond all reasonable doubt. He has further submitted that from the
evidence of the victim, examined as PW3, it appears that she was a consenting
party to the alleged sexual intercourse by the applicant-appellant. However, this
Court has found from the materials on record that she was a minor of 16 years
of age at the time of occurrence and, therefore, the consent, even if is there, is
immaterial and have no legal sanction.
The PW1 and PW2, who are the informant (father and mother respectively) are
reported about the occurrence by the victim/PW3 herself. The evidence of
PW3/victim is indicative of situation, where she did not raised any alarm while
the commissions in the instant case were in process. What has been found to be
unusual in the evidence of PW3/victim is that on the next day morning, she was
taken on the same bicycle by the applicant-appellant to his house and during
that time also, she was not found to be objecting to the conduct of the
applicant-appellant.
Considering the evidence, partly indicated above, the connected appeal appears
to be one to be disposed of on merit. Although, prima facie, the applicant-
appellant is found to have make out a case for grant of bail.
This Court has also taken note of the fact that punishment imposed upon the
appellant-applicant is directed to run concurrently and as such, the maximum
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period of substantive sentence is seven years and the appellant-applicant as
already indicated above, more than 3 years.
Considering the above, this Court is of the view that since the appeal is of 2021,
it is likely to take some time to take place the hearing and disposal of the same
taking into account all these facts, the applicant-appellant is granted bail.
Accordingly, the applicant-appellant, named above, shall be released on bail in
connection with the case aforementioned on furnishing bail bond of Rs.20,000/-
with two suitable sureties each of the like amount, to the satisfaction of learned
jurisdictional Special Judge, Sonitpur, Tezpur on conditions to be imposed by the
learned Court below.
The impugned judgment and order is stayed until disposal of the connected
appeal.
This interlocutory application stands disposed of accordingly.
The connected appeal be listed in due course.
JUDGE
Comparing Assistant
