Gauhati High Court
Satish Ray (Mandal) @ Satish ... vs The State Of Assam And Anr on 25 September, 2023
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GAHC010153682023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/628/2023
SATISH RAY (MANDAL) @ SATISH MANDAL @ SATISH CH RAY
S/O ANANDA MANDAL, VILL.- KAYAKUCHI GAON, P.O.- NALIGAON, P.S.-
BARPETA, DIST.- BARPETA, ASSAM, PIN- 781352.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE LEARNED P.P., ASSAM.
2:MILAN MANDAL
W/O MUNINDRA MANDAL
VILL.- KAYAKUCHI GAON
P.O.- NALIGAON
P.S.- BARPETA
DIST.- BARPETA
ASSAM
PIN- 781352
Advocate for the Petitioner : MR. R ALI
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./267/2023
SATISH RAY (MANDAL) @ SATISH MANDAL @ SATISH CH RAY
S/O ANANDA MANDAL
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VILL.- KAYAKUCHI GAON
P.O.- NALIGAON
P.S.- BARPETA
DIST.- BARPETA
ASSAM
PIN- 781352.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE LEARNED P.P.
ASSAM.
2:MILAN MANDAL
W/O MUNINDRA MANDAL
VILL.- KAYAKUCHI GAON
P.O.- NALIGAON
P.S.- BARPETA
DIST.- BARPETA
ASSAM
PIN- 781352.
------------
Advocate for : MR. R ALI
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 25.09.2023
(Malasri Nandi, J.)
Heard Mr. R. Ali, learned counsel appearing on behalf of the applicant and Ms. B.
Bhuyan, learned Additional Public Prosecutor for the State of Assam.
2. The present interlocutory application has been filed under Section 389 CrPC, by the
accused/applicant, Satish Ray (Mandal) @ Satish Mandal @ Satish Ch Ray, seeking
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suspension of his sentence, pending Criminal Appeal No. 267 of 2023, arising out of the
Judgment and Order dated 20.06.2023, passed by the learned Additional Sessions Judge-
cum-Special Judge (POCSO), Barpeta, in Special POCSO Case No. 66/2020, convicting the
accused/applicant under Section 6 of POCSO Act and Section 376 (AB) of IPC and sentencing
him to undergo Rigorous Imprisonment for 20(twenty) years and to pay fine of Rs. 10,000/-,
in default stipulation.
3. It is submitted by the learned counsel for the applicant that the applicant cannot be
convicted under Section 6 of POCSO Act, as there was no injury mark found on the private
parts of the victim. It is also submitted by the learned counsel for the applicant that the
medical evidence did not support the case of the prosecution that she was sexually assaulted
by the applicant as on examination of the victim, the doctor did not find any evidence of
sexual intercourse at the time of examination and no evidence of the injury was also detected
on her body and the hymen was found intact. It is further submitted that the applicant has
been falsely implicated in the case, as a result of which, he was convicted by the trial court
on improper appreciation of evidence. The applicant is 50 years old person and he is suffering
from various diseases like kidney stone, asthma, etc. for which he has to take medication
regularly. Under such backdrop, the bail may be considered by suspending the sentence as
aforesaid.
4. In support of his submissions, the learned counsel for the applicant has placed reliance
on the following case laws-
(i) Md. Mohiruddin vs. The State of Assam and Anr. in I.A.(Crl.)/1/2023.
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(ii) 2021 (3) GLT 128 (Manirul Islam vs. State of Assam & Anr.)
5. In response, the learned Additional Public Prosecutor for the State submits that on the
date of incident, the victim was taken away by the applicant to his temporary house, wherein
he committed sexual intercourse with her. As a result of which, she sustained injury on her
private parts. It is also the submission of learned Additional Public Prosecutor that at the
relevant time of incident, the victim was only nine years of age. On examination of the victim,
the medical officer found redness around the hymen and tenderness on touch, which implies
that the victim was sexually abused on the date of incident. Hence, the bail payer of the
petitioner should not be considered by suspending the sentence during appeal, which is a
heinous crime against the society also.
6. In support of her submissions, the learned Additional Public Prosecutor for the State has
placed reliance on the following case laws-
(i) AIR 2022 SC(Criminal) 547 (Nawabuddin vs. State of Uttarakhand).
(ii) (2022) v.5 SCC 545 (Attorney General for India vs. Satish & Anr.).
7. We have considered the submissions of learned counsels for the parties.
8. In the case of Ramji Prasad vs Rattan Kumar Jaiswal & Anr ; reported in (2002) 9 SCC
366 and in the case of Gomti vs Thakurdas & Ors; reported in (2007) 11 SCC 160, it was held
that in heinous crimes like murder, sexual offence etc., proper application of mind to relevant
factors and recording of reasons germane to justify grant of bail by the Court, is essential.
9. As it appears from the statement of the victim that she has been sexually abused by the
applicant on the date of incident, coupled with the evidence of the medical officer that she
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found redness around the hymen of the victim and tenderness on touch, which tantamounts
to the fact that she has been sexually abused on the date of the incident.
10 We have also gone through the detailed reasons assigned by the trial Court while
convicting the accused/applicant in the heinous crime of sexual assault and the sentence
imposed on him as aforesaid.
11. In view of the above, without discussing the evidence in detail, at this stage, and
following the decisions of the Apex Court in Ramji Prasad (supra) and Gomti (supra), we
do not find it appropriate to suspend the sentence of the accused/applicant, during the
pendency of the appeal. Accordingly, the prayer of the accused/applicant is rejected.
12. Interlocutory Application stands disposed of.
JUDGE
Comparing Assistant
