Md. Rafiz Uddin Ahmed vs The State Of Assam And Anr
2022 Latest Caselaw 2176 Gua

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GAHC010134492021




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


                                I.A.(Crl.)/345/2021

         MD. RAFIZ UDDIN AHMED
         S/O- MD. ENAM UDDIN AHMED (ENA) @ ENAM UDDIN ALI
         VILL.- TULSIBARI
         P.S. RANGIA
         DIST.- KAMRUP
         ASSAM
         PIN- 781354.


          VERSUS

         THE STATE OF ASSAM AND ANR.
         REP. BY THE P.P.
         ASSAM

         2:MISS MINARA BEGUM
         D/O- MD. MINNAT ALI
          R/O- VILL.- CHIKNIBARI
          P.S. TAMULPUR
          DIST.- BAKSA (BTAD)
         ASSAM
          PIN- 781367.
          ------------
         Advocate for : MR. M A SHEIKH
         Advocate for : PP
         ASSAM appearing for THE STATE OF ASSAM AND ANR.
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                                  BEFORE
                    HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                         ORDER

Date : 24-06-2022

Heard Mr. MA Sheikh, learned counsel for the petitioner and Mr. BB Gogoi, learned Additional Public Prosecutor, Assam for the State respondent. The office note, dated 11.03.2022, shows that the notice issued to the respondent No.2 by registered A/D post was delivered on 24.11.2021. None appeared for the respondent No.2.

This interlocutory application under Section 389 CrPC is filed by the applicant/ appellant in Criminal Appeal No. 142/2021 praying for suspension of sentence pending the aforesaid appeal and to release him on bail.

It may be mentioned that applicant is convicted under Section 4 of the POCSO Act and sentenced to suffer rigorous imprisonment for a period of 7 (seven) years and to pay fine of Rs.10,000/- in default to suffer simple imprisonment for a term of 6(six) months by the learned Special Judge, (POCSO) Baksa, Mushalpur in Special POCSO Case No.74/2018. Being aggrieved, the applicant has preferred the connected appeal being Criminal Appeal No.142/2021 and presently serving out the sentence. Mr. MA Sheikh, learned counsel appearing for the applicant, submits that while holding the applicant guilty of the offence, the learned trial court erroneously took recourse to Section 29 and violating Section 30 (2) of the POCSO Act. Mr. Sheikh submits that despite there was no iota of evidence to hold him guilty of the offence and also without computing the age of the victim girl in the light of the well settled principle, has convicted and sentenced him erroneously. Further, Mr. Sheikh submits that the applicant has been serving out the sentence for 333 days and as such, he may be directed to be released on bail pending the appeal.

Opposing the application, Mr. BB Gogoi, learned Addl.Public Prosecutor, submits that as the relevant case record is received and the appeal is ready for hearing, the instant application may be rejected.

I have considered the above submission made by the learned counsel of both sides and Page No.# 3/3

perused record including the grounds of appeal and the impugned judgment and order. The medical evidence of PW-5 shows that at the time of examination of the victim girl (PW-1) no injury was found on her person and held the opinion 'not consistent with recent sexual intercourse or assault' and further that 'the skeletal age from radiological evidence is estimated above 18 years.' It is noticed from the evidence of PW-1, the alleged victim girl that at the time of occurrence, she was aged 17 years 4 months and prior to the alleged incident there was talk of the proposal for marriage between her family and the applicant's family. The alleged occurrence took place at her parental home. The margin of error in radiological examination is two years on either side.

A perusal of the grounds cited in the appeal, it appears that there are prima facie some good grounds for adjudication on merit in the appeal.

Therefore, without going deep into the merit of the evidence on record and subject to a detailed hearing of both sides, this Court is of the opinion that pending disposal of the appeal, the applicant may be released on bail.

Accordingly, the sentence passed against the applicant/appellant, namely, Md. Rafiz Uddin Ahmed is hereby suspended pending the connected Criminal appeal No. 142/2021 and he is directed to be released on bail of Rs.40,000/- (Forty Thousand) with one surety to the satisfaction of the learned Special Judge (POCSO Act), Baksa, Mushalpur.

With the above directions, the interlocutory application stands disposed of.

JUDGE

Comparing Assistant