Sri Budheswar Hazarika vs The State Of Assam And Anr
2023 Latest Caselaw 3144 Gua

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GAHC010155392022




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

                         Case No. : I.A.(Crl.)/702/2022


         SRI BUDHESWAR HAZARIKA.
         S/O- LATE SISON HAZARIKA
         R/O- ADHAR SATRA TINIALI
         P.O.
         P.S. AND DIST.-GOLAGHAT
         PIN- 785702
         ASSAM


          VERSUS

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

         2:SRI ATULYA KRISHNA DAS
         S/O- LATE AMULYA KRISHNA DAS
          R/O- KUMARPATTY NEAR NAMGHAR
          P.O. AND P.S. GOLAGHAT
          DIST. GOLAGHAT
          PIN- 785621
         ASSAM


         ------------
         Advocate for : MS S SHARMA
         Advocate for : PP
         ASSAM appearing for THE STATE OF ASSAM AND ANR
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                                     BEFORE
                   HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                      HONOURABLE MRS. JUSTICE MALASRI NANDI

                                              ORDER

Date : 16-08-2023 (M. Zothankhuma, J)

Heard Ms. S Sharma, learned counsel for the applicant, who submits that this application under Section 389 Cr.PC should be allowed and the sentence awarded to the applicant/appellant should be suspended. Also, the applicant/appellant be released on bail.

2. The applicant/appellant has been convicted by the court of the learned Special Judge, POCSO, Golaghat in Special POCSO Case No. 18/2021, vide judgment dated 09.03.2022 under Section 6 of the POCSO Act, for having raped his daughter, who was 13 years of age and was thereafter sentenced to suffer rigorous imprisonment for life with a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for 3 (three) months vide sentence dated 11.03.2022.

3. The applicant's counsel submits that the case against the applicant/appellant is fabricated and that there are good grounds of defence in favour of the applicant/appellant. She also submits that the applicant/appellant has a minor son, who he has to look after. She also submits that the evidence does not prove that the applicant/appellant had committed rape upon his daughter.

4. The applicant's counsel further submits that the learned Trial Court did not ask relevant questions to the prosecutrix prior to recording her evidence, to find out if she was capable of giving answers or understanding the questions to be put to her.

5. Ms. B Bhuyan, learned Additional Public Prosecutor on the other hand Page No.# 3/3

submits that the evidence of the prosecutrix points to the fact that the applicant had raped the prosecutrix, which resulted in pregnancy. She accordingly submits that the application should be rejected.

6. We have heard the learned counsels for the parties.

7. This is a case where the prosecutrix has been raped by her own father. The mother of the prosecutrix had apparently left the family a long time ago. It is also in evidence that the prosecutrix became pregnant because of the rape committed by her own father.

8. On considering the above facts, we are not inclined to suspend the sentence passed by the learned Trial Court. Consequently, the prayer for bail is also rejected.

9. Interlocutory application stands disposed of accordingly.

                                           JUDGE             JUDGE




Comparing Assistant