Hanif Ali vs The State Of Assam And Anr
2022 Latest Caselaw 2552 Gua

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GAHC010098082022




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

                              Case No. : I.A.(Crl.)/230/2022

            HANIF ALI
            S/O ABDUL RAHIM
            VILLAGE BALIKURI N.K
            PS KALGACHIA, DIST BARPETA, ASSAM, 781319


            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY PP ASSAM

            2:USOB ALI
             S/O LATE HAZARAT ALI
            VILLAGE BALIKURI N.K
            PS KALGACHIA
             DIST BARPETA
            ASSAM
             78131

Advocate for the Petitioner : MR K BHUYAN
Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY order 28-07-2022

[N. Kotiswar Singh, J]

Heard Mr. K. Bhuyan, learned counsel for the applicant. Also heard Ms. S. Jahan, Page No.# 2/3

learned Additional Public Prosecutor, Assam.

2. The present application is filed for suspending the sentence passed by the Special

Judge, Barpeta, in Special POCSO Case No.30/2018 on 08.04.2022 by which the applicant has

been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo 12 years

(Twelve Years) Rigorous Imprisonment (R.I.) and fine of Rs.10,000/- (Ten thousand) i/d to

R.I for another one year.

3. Learned counsel for the applicant submits that the Trial Court in Para-19 of the

judgment dated 08.04.2022 has made the observation that the victim had remained

consistent all throughout right from her previous statement recorded by the I/O during the

course of investigation, her subsequent statement recorded under Section 164 Cr.P.C. and

finally her evidence in course of the trial. However, the same is not correct, inasmuch as, her

statement recorded under Section 164 Cr.P.C. and her deposition made before the Trial Court

are not consistent.

4. In this regard, learned counsel for the applicant has drawn our attention to the

statement made by the victim girl under Section 164 Cr.P.C. and also the deposition of the

victim girl before the Trial Court.

5. It has been submitted that while the victim girl in her deposition before the Trial Court

had mentioned the presence of her brother near the place of occurrence, she did not mention

his presence in the statement made under Section 164 Cr.P.C. Further, there is no eye witness

of the alleged incident and the place of occurrence at the intersection of 3 (three) villages

and as such, possibility of committing of such crime by any other person cannot be ruled out.

It has been also submitted that the conviction is based solely on the testimony of the victim Page No.# 3/3

girl and not on the basis of any other independent eye witness. Accordingly, the learned

counsel for the applicant submits that the conviction cannot be sustained and as such, the

sentence passed by the Special Judge, Barpeta on 08.04.2022 may be suspended during the

pendency of the appeal.

6. We have heard learned counsel for the parties and also gone through the records.

7. We do not apparently see any major contradiction or inconsistency in the statements

made by the victim girl under Section 164 Cr.P.C. as well as before the Trial Court.

8. We have also noted that the victim girl was about 7 (seven) years old when the

incident took place i.e. on 02.05.2018 and her evidence were recorded after about a year.

9. Accordingly, we are of the view that the matter would require proper hearing and we

do not wish to make any further observation at this stage.

10. We are not satisfied that the appellant has been able to make sufficient cause for

suspension of the sentence dated 08.04.2022. Accordingly, the present application is

dismissed.

                                            JUDGE                                      JUDGE


Comparing Assistant