Mithun Rajbongshi vs The State Of Assam And Anr
2022 Latest Caselaw 1054 Gua

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GAHC010061632021




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


                            I.A.(Crl.)/199/2021

         MITHUN RAJBONGSHI
         S/O SRI GAMBHIR RAJBONGSHI
         R/O VILLAGE KALBARI
         PO AND PS GORESWAR
         DIST. BAKSA
         ASSAM
         PIN-781366


          VERSUS

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

         2:MANESWAR RAJBONGSHI
         S/O SRI RAMESH RAJBONGSHI
          R/O VILLAGE KOLBARI
          PO AND PS GORESWAR
          DIST. BAKSA
         ASSAM
          PIN-781366
          ------------
         Advocate for : MR. A PAUL
         Advocate for : PP
         ASSAM appearing for THE STATE OF ASSAM AND ANR.
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                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                            ORDER

Date : 25.03.2022

Heard Mr. A. Paul, learned counsel for the applicant-appellant and Mr. R.J. Baruah, learned Additional Public Prosecutor for the respondent State of Assam.

2. This interlocutory application under Section 389, CrPC has been filed seeking suspension of the sentence passed against the applicant-appellant by the judgment and order dated 30.01.2021 by the learned Special Judge, Baksa, Mushalpur ['the trial court', for short] in Special [POCSO] Case no. 08/2018. The connected appeal, Criminal Appeal no. 94/2021 has been preferred against the said judgment and order dated 30.01.2021.

3. Mr. Paul, learned counsel for the applicant-appellant has submitted that by the said judgment and order dated 30.01.2021, the applicant-appellant has been convicted under Section 4 of the POCSO Act, 2012 and he has been sentenced to undergo rigorous imprisonment for a period of 10 [ten] years and to pay a fine of Rs. 10,000/-, in default, to undergo further simple imprisonment for a term of 1 [one] month.

4. It is the contention of Mr. Paul that the learned trial court ought to have taken into consideration the ratio of the decision of the Hon'ble Supreme Court of India in Jaya Mala vs. Home Secretary, Government of Jammu & Kashmir reported in AIR 1982 SC 1297. It is his submission that the statement of the victim recorded under Section 164, CrPC and the deposition made before the learned trial court are at variance. It is his further submission that there was delay of 7 days in lodging the FIR and the medical report did not indicate commission of any sexual assault.

5. Mr. R.J. Baruah, learned Additional Public Prosecutor has submitted that the victim is consistent in her versions in the sense that the victim had clearly mentioned that there was forcible sexual assault upon her by the accused. Though there could be minor discrepancies Page No.# 3/4

between the versions of the victim at the stage of recording the statement under Section 164, CrPC and before the learned trial court, those discrepancies are trivial in nature. Mr. Baruah has further referred to the provisions of Section 29 and Section 30 of the POCSO Act, 2012.

6. I have considered the submissions of the learned counsel for the parties and have also perused the materials available on record.

7. The allegation in the First Information Report [FIR] was that on 24.01.2017, the applicant-appellant forcefully subjected the victim to sexual intercourse. The FIR was lodged on 29.01.2017 when a village meeting called for the purpose in the meantime, did not bring the desired result. In the statement recorded under Section 164, CrPC, the victim had clearly implicated the accused stating that the applicant-appellant had committed forceful sexual assault upon her. The victim was consistent in her deposition before the learned trial court in saying that it was the applicant-appellant who had committed the sexual assault upon her. It is the creditworthiness of the version of the victim which is of paramount consideration. The victim as well as the parents of the victim had deposed that the victim was minor at the time of the commission of the alleged offence. The doctor after medical examination of the victim, had opined that the age of the victim was below 18 years at the time of examination on 01.02.2017. The learned trial court, in its judgment and order dated 31.01.2021, had considered the decision in Jaya Mala [supra] and had recorded its reasons, in paragraph 26 of the judgment, for not following the ratio in Jaya Mala [supra] in the fact situation obtaining in the case in hand.

8. The presumptions under Section 29 as well as under Section 30 gets more strengthened against an accused on deliverance of a judgment and order of conviction and sentence passed by the trial court. The offence against the applicant-appellant is heinous in nature. The learned trial court had discussed the medical evidence and the aspect of delay in lodging the FIR in its judgment. The applicant-appellant is undergoing sentence of rigorous imprisonment for a period of 10 [ten] years after being convicted under Section 4 [penetrative sexual assault] under the POCSO Act, 2021. In such view of the matter, this Court is not inclined to allow the prayer for suspension of sentence of the applicant-appellant Page No.# 4/4

under Section 389, CrPC at this stage. The interlocutory application stands accordingly, dismissed.

JUDGE

Comparing Assistant