Gauhati High Court
Niranjan Mandal vs The State Of Assam And Anr on 6 October, 2023
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GAHC010149152023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/645/2023
NIRANJAN MANDAL
S/O LATE MANGAL MANDAL
VILL.- 2 NO. DUAMAKHA P.S.- TAMULPUR
DIST.- BAKSA, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P.
ASSAM.
2:ASHMITA BISHWAS
D/O RANJIT BISHWAS
VILL.- 2 NO. DONGARGAON
P.S.- TAMULPUR
DIST.- BAKSA
ASSAM
PIN- 781368.
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Advocate for : MR S C DAS
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
06.10.2023
(M. Zothankhuma, J)
1. Heard Mr. S.C. Das, learned counsel for the applicant. Also heard Ms. S.
Jahan, learned Additional Public Prosecutor for the State.
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2. This application has been made under Section 389 Cr.P.C. for setting aside
the sentence imposed upon the applicant, on being convicted under Section 6 of
the POCSO Act by the Court of the Special Judge (POCSO), Baksa, in Special
(POCSO) Case No.19/2023, arising out of Tamulpur P.S. Case No.14/2023.
3. The applicant's counsel submits that the age of the victim girl was above
18 years at the time of the alleged incident and as it was not proved by the
prosecution before the learned Trial Court that the girl was below 18 years of
age at the time of the incident, the applicant could not have been convicted
under Section 6 of the POCSO Act. He also submits that the applicant did not
rape the victim girl and the allegation of the applicant having committed
aggravated penetrative sexual assault is false. The learned counsel for the
applicant further submits that the child that has been born to the victim girl
cannot be the child of the applicant, as the applicant did not have any sexual
intercourse with the victim girl. He submits that the applicant is willing to
undergo a DNA test to prove that the child born to the victim girl has not been
fathered by the applicant.
4. Ms. S. Jahan, learned Additional Public Prosecutor, on the other hand
submits that the applicant had not taken any stand before the learned Trial
Court that the victim girl was 18 years and above at the time of the incident and
as such, the age of the victim was not a disputed issue to be taken up by the
learned Trial Court. She submits that the question of whether DNA
testing/profiling should be normally allowed, is still a debatable issue and as per
the various judgments of the Supreme Court, the same should not be done at
the drop of a hat.
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5. We have heard the learned counsels for the parties.
6. The prayer in the present application is for suspending the sentence and
allowing the applicant to go on bail. The evidence of the victim girl and the FIR
submitted by her is to the effect that she was below 18 years, at the time when
the rape had been committed. Thereafter, the victim girl has also apparently
given birth to a child. The learned Trial Court in paragraph-19 of the impugned
judgment dated 04.05.2023 has held that no suggestion was given to the
prosecution witnesses denying the age of the victim as 17 years, at the time of
occurrence of the crime. The learned Trial Court also states that even during
arguments, the learned Legal Aid Counsel did not challenge the evidence
pertaining to the age of the victim girl. As such, it was clearly established from
the oral evidence on record that the age of the victim girl was 17 years, at the
time of the alleged incident and thus was a child within the meaning of POCSO
Act, 2012.
7. On considering the above facts, we are of the view that no case for
suspension of the sentence has been made out by the applicant. The application
is accordingly dismissed. The above being said, the observations and decision
made in this order shall not be construed to be the final observation/decision of
this Court at the time of hearing the appeal.
JUDGE JUDGE
Comparing Assistant
