Gauhati High Court
Md. Rana Ali @ Rana Ahmed @ ... vs The State Of Assam And Anr on 28 March, 2023
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GAHC010195822022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/581/2022
MD. RANA ALI @ RANA AHMED @ KHOLILUDDIN AHMED
RESIDENT OF SAMUGURI TINIALI (BAZAR) PS AMGURI, DIST
SIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:MS. LUCKY DAS
D/O LATE ANANTA DAS
RESIDENT OF NA PAM SAMUGURI
PS AMGURI
DIST SIVASAGAR
ASSAM 78568
Advocate for the Petitioner : MR R DAS
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 28.03.2023
Heard Mr. R. Das, learned counsel for the applicant. Also heard Ms. N.
Das, learned Additional Public Prosecutor for the State respondent.
The State respondent No. 1 has already filed their written objection in
connection with this case.
However, the respondent No. 2 did not appear, though it is submitted by
the learned counsel for the applicant that service has already been completed.
This is an application under Section 389 of the Code of Criminal Procedure
praying for suspension of sentence and granting bail to the applicant during the
pendency of the revision petition.
It is to be mentioned here that the applicant has already filed one appeal,
being Crl. A. No. 240/2022, against the judgment and order dated 30.08.2022,
passed by the learned Special Judge (POCSO), Sivasagar, in Special (POCSO)
Case No. 07/2019, convicting the accused appellant for offences under Section 6
of the POCSO Act and under Section 506 of the Indian Penal Code and
sentenced to undergo R.I. for a period of 10 (ten) years and also to pay a fine
of Rs. 10,000/- and in default to undergo further R.I. for a period of 6 (six)
months for conviction under Section 6 of the POCSO Act and also to undergo
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R.I. for a period of 6 (six) months for the conviction under Section 506 of the
Indian Penal Code.
It is submitted by the learned counsel for the applicant, Mr. R. Das, that
the present applicant is the only earning member of the family and in his
absence, his entire family is suffering and that too the wife of the applicant is
also suffering from thyroid disorder, diabetes, fatty liver and cholesterol problem
and undergoing treatment. Apart from that, the daughter of the applicant is also
suffering from depression, anger and mood swing problem. The learned counsel
for the applicant further submitted that no documents could be provided before
the learned Special Judge (POCSO), Sivasagar, for determination of the age of
the victim and in the same time, the I.O. could not furnish the DNA examination
report, though it was collected during the investigation. Further it is submitted
that the accused/applicant is a permanent resident of his addressed locality and
there is no chance of absconding if the accused is enlarged on bail by
suspending the sentence imposed on him. More so, there are good grounds of
bail and there is every chance of succeeding in the appeal and accordingly,
prayed for suspension of sentence and allowing the applicant to go on bail till
disposal of the connected appeal.
In this context, the learned Additional Public Prosecutor, Ms. N. Das, has
submitted that the present applicant has been convicted under Section 6 of the
POCSO Act and accordingly, he was sentenced to undergo R.I. for 10 years
along with fine. During the trial, the prosecution examined as many as 11
(eleven) numbers of witnesses including the M.O. and the I.O. But, the defence
did not adduce any witness in support of their defence plea. However, the
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defence duly cross-examined the witnesses and the statement of the accused
was also recorded under Section 313 Cr.P.C. On the basis of the sufficient
materials in the evidence of P.Ws., the learned Special Judge, POCSO, convicted
the present applicant under Section 6 of the POCSO Act. The learned Additional
Public Prosecutor also discussed the evidence adduced by the P.Ws., on the
basis of which, the order of conviction was passed by the learned Special Judge,
POCSO. Further, it reveals from the fact of the case that at the time of lodging
the F.I.R., the victim was 6 (six) months pregnant and subsequently, she
delivered a baby boy and thus, it reveals that there was repeated penetrative
sexual assault on her. Accordingly, it is submitted by the learned Additional
Public Prosecutor that there is sufficient evidence recorded by the learned
Special Judge and on the basis of which, the order of conviction was passed and
hence, considering the nature of offence, this is not a fit case to allow the
petition under Section 389 Cr.P.C.
After hearing the submissions of learned counsels for both sides, I have
also perused the case record of Special (POCSO) Case No. 07/2019 and it is
seen that considering the evidence recorded by the learned Special Judge
(POCSO) Sivasagar, conviction order was passed.
Considering the above aspect of the case and also considering the fact
there is an allegation of aggravated penetrative sexual assault on the victim, I
do not find it a fit case to allow the applicant to go on bail by suspending the
sentence imposed upon him vide judgment and order dated 30.08.2022, by the
learned Special Judge (POCSO), Sivasagar, in Special (POCSO) Case No.
07/2019, and accordingly, the same stands dismissed.
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The interlocutory application stands disposed of in terms above.
JUDGE
Comparing Assistant
