Bitopan Das vs The State Of Assam And Anr
2022 Latest Caselaw 2858 Gua

                                                                  Page No.# 1/4

GAHC010035872021




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

                                 Case No. : I.A.(Crl.)/121/2021

            BITOPAN DAS
            S/O LATE TRAILOKYA DAS, R/O METUAKUCHI, SANTI NAGAR, BARPETA
            TOWN, P.S., P.O. AND DIST-BARPETA, ASSAM


            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:HITESH DAS
             S/O LATE NOLARAM DAS
             R/O METUAKUCHI
             SANTI NAGAR
             BARPETA TOWN
             P.S.
             P.O. AND DIST-BARPETA
            ASSAM-78130

Advocate for the Petitioner   : MR. A GOYAL

Advocate for the Respondent : PP, ASSAM



             Linked Case : Crl.A./63/2021

            BITOPAN DAS
            S/O LATE TRAILOKYA DAS
            R/O METUAKUCHI
            SANTI NAGAR
            BARPETA TOWN
            P.S.
            P.O. AND DIST-BARPETA
                                                                       Page No.# 2/4

          ASSAM


           VERSUS

          THE STATE OF ASSAM AND ANR.
          REPRESENTED BY THE PUBLIC PROSECUTOR
          ASSAM

          2:HITESH DAS
          S/O LATE NOLARAM DAS
           R/O METUAKUCHI
           SANTI NAGAR
           BARPETA TOWN
           P.S.
           P.O. AND DIST-BARPETA
          ASSAM-781301
           ------------
          Advocate for : MR. A GOYAL
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                BEFORE
                  HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                    ORDER

09.08.2022

Heard Mr. A. Goyal, learned counsel for the appellant/applicant as well as Mr. P.S. Lahkar, learned Addl. Public Prosecutor, Assam appearing for the State respondent.

By this interlocutory application under Section 389 Cr.P.C., the appellant/applicant, who is convicted vide the impugned Judgment and Order, dated 18.12.2020, passed by the learned Special Judge, Barpeta in Special (POCSO) Case No. 56/2019 and sentenced to undergo R.I. for 5(five) years and to pay fine of Rs.10,000/-, in default, to undergo S.I. for another 6(six) months under Section 8 of the POCSO Act, 2012 has prayed for suspension of sentence Page No.# 3/4

and to allow him to go on bail.

The prosecution story in brief is that an F.I.R. was lodged by the informant/respondent No. 2 on 26.12.2018 alleging, inter-alia, that on 14.12.2018 at around 10 p.m., when the niece of the informant was going to her uncle's house and reached Santi Nagar Chowk, the applicant/appellant and another forcibly caught hold of her hands and by gagging her pulled her to the campus of Ramcharan High School. Thereafter, the appellant/applicant committed rape on her. The accused persons also threatened her with dire consequences if she disclosed the incident to anyone. Due to the aforesaid act of the appellant/applicant the victim girl bled profusely. On the next day, the victim girl narrated the incident to her elder sister. On 17.12.2018, the victim girl fell down on the floor due to loss of consciousness and she was taken to FAAMCH, Barpeta for treatment. Although the matter was informed to the village headman and Mahila Samity, no fruitful result came out, for which, the present F.I.R. was lodged.

A perusal of the evidence on record shows that P.W. 1, the informant and P.W. 2, the sister of the victim girl aged about 13 years, had supported the story of the incident as narrated in the F.I.R. vide Exhibit- 1. It is noticed that on 28.12.2018, the victim girl committed suicide at the house of P.W. 1, the informant/her uncle. The medical evidence of P.W. 8, the doctor, who examined the victim girl on 27.12.2018 revealed no evidence of sexual intercourse or any mark of injury on her body vide Exhibit- 6, the medical report. P.W. 7, the Addl. C.J.M., Barpeta in his evidence recognized Exhibit- 3, the statement of the deceased victim girl recorded under Section 164 Cr.P.C. A perusal of the aforesaid statement of the deceased victim girl shows that she had implicated the appellant/applicant herein with the alleged offence. The record reveals that Page No.# 4/4

the victim was a deaf and dumb girl. Prima facie, as held by the learned trial Court, this is a case of sexual assault on her by the appellant/applicant.

The appellant/applicant has been in judicial custody since the date of the impugned judgment and order, that is, 18.12.2020 (for 599 days).

Having considered the quantum of punishment awarded and the nature of the offence of sexual assault allegedly committed and further the length of detention, this Court is of the considered opinion that the sentence may be suspended and the appellant/applicant may be released on bail till disposal of the connected appeal, which is ready for hearing.

Accordingly, it is directed that the operation of the sentence passed against the appellant/applicant vide the impugned Judgment and Order, dated 18.12.2020, passed by the learned Special Judge, Barpeta in Special (POCSO) Case No. 56/2019 shall remain stayed till disposal of the connected Criminal Appeal No. 63/2021. The appellant/applicant is directed to be released on bail of Rs.50,000/- (Rupees Fifty Thousand) with one surety of like amount to the satisfaction of the learned Special Judge (POCSO Act), Barpeta.

The Interlocutory Application stands disposed of.

JUDGE

Comparing Assistant