Gauhati High Court
Prabin Dutta vs The State Of Assam And Anr on 24 June, 2022
Page No.# 1/4
GAHC010112952021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/351/2021
PRABIN DUTTA
S/O- LATE SANKAR DUTTA, R/O- POLO CLUB, MORAN, P.O. AND P.S.
MORAN, DIBRUGARH.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PUBIC PROSECUTOR, ASSAM
2:SMTI. ANIMA DUTTA
W/O- SHRI PRABIN DUTTA
R/O- KHELMATI
KHATKHATIGAON
DIST.- DIBRUGARH
ASSA
Advocate for the Petitioner : MR. M B U AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 24-06-2022
(K.R. Surana, J)
Page No.# 2/4
Heard Mr. S. Borthakur, learned counsel for the applicant and Ms. B.
Bhuyan, learned senior counsel appearing as APP for the State assisted by Mr. J.
Das, learned counsel for the respondent.
2. By filing this application under section 389 of the Cr.P.C., the applicant
has prayed for suspension of sentence vide judgment dated 06.05.2021 passed
by the learned Additional Sessions Judge-cum-Special Judge, Sivasagar in
Special POCSO Case No.18/2014, by which the applicant was convicted under
section 6 of the POCSO Act and he was sentenced to undergo rigorous
imprisonment for a period of 20 years and also to pay a fine of Rs.10,000/- in
default clause. Moreover, the victim was ordered to be paid a compensation of
Rs.5 lakh.
3. The learned counsel for the applicant has referred to the evidence of
six PWs examined by the prosecution, DW-1 appearing as defence witness and
evidence of CW-1 who is the Court witness and has submitted that it is
absolutely not possible for the applicant to sexually assault his all minor
daughter, then aged about 13 years in the presence of another daughter who
was then aged about 14 years. It has been submitted that the place of
occurrence was a one room house of the applicant which contained only one
bed and three inmates, i.e. the father (applicant) and two minor daughters were
staying together. It has been submitted that from the evidence rendered by the
witnesses, it can be culled out that there was a matrimonial dispute between
the applicant and his estranged wife, who was examined as PW-1 and
accordingly, the learned counsel for the applicant has submitted that in
connection with the said matrimonial dispute, the applicant has been trapped
Page No.# 3/4
with a false allegation of committing sexual assault on the minor daughter.
4. It is further submitted that as per the medical examination report
(Ext.2), the findings were not suggestive of recent sexual intercourse and that
in the laboratory investigation, no spermatozoa was seen. Accordingly, it is
submitted that the sentence passed against the appellant be suspended and the
applicant be enlarged on bail till the disposal of the connected appeal.
5. Per contra, the learned APP has referred to the objection filed by the
State and it is submitted that the evidence on record remains unshaken about
the commission of sexual assault of the minor girl and accordingly the prayer for
suspension of sentence has been opposed by the learned senior counsel
appearing as APP for the State.
6. On a perusal of the materials available on record, the prima facie
impression on the Court is that the evidence of the PWs remains unshaken in so
far as the commission of sexual assaults on the minor victim is concerned, who
was examined as PW-5.
7. Moreover, on a perusal of the evidence of the CW-1, it cannot be said
that she had totally exonerated the applicant. In the opinion of the Court, the
evidence of CW-1 merely indicates that she was unaware if anything had
happened between the applicant and the victim, but she had admitted that the
victim had told her that during sleep, the applicant had touched her private
parts and that her clothes were opened and the applicant had committed sexual
assault for three to four days. Moreover, on a perusal of the medical report
Page No.# 4/4
(Ext.2) it prima facie appears that as per the medical opinion, the "findings were
suggestive that she was used to an act like that of sexual intercourse" and the
medical opinion was that the victim was above 13 years of age and below 17
years of age.
8. In view of the above, the Court is of the considered opinion that this
would not be an appropriate case for the suspension of the sentence in respect
of the applicant.
9. It is further clarified that the observation made herein is only for the
purpose of deciding this Interlocutory application and such observation would
not prejudice the applicant when the connected appeal is heard on merit.
10. Accordingly this application stands rejected.
JUDGE JUDGE
Comparing Assistant
