Gauhati High Court
Md. Abdul Khaleque vs The State Of Assam And 2 Ors on 6 May, 2024
Author: Suman Shyam
Bench: Suman Shyam
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GAHC010013732024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/77/2024
MD. ABDUL KHALEQUE
S/O LATE ABDUL MANNAS, R/O CHATIANTOLI (WARD NP. 7), P.O.-
LAHARIGHAT, P.S.- LAHARIGHAT, DIST.- MORIGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE P.P., ASSAM.
2:MUSSTT. MONOWARA KHATOON
W/O MD. JAINUDDIN
R/O CHATIANTOLI (WARD NP. 7)
P.O.- LAHARIGHAT
P.S.- LAHARIGHAT
DIST.- MORIGAON
ASSAM
PIN- 782127.
3:JASMINA KHATOON
D/O MD. JAINUDDIN
REP. BY HER MOTHER MUSSTT. MONOWARA KHATOON
R/O CHATIANTOLI (WARD NP. 7)
P.O.- LAHARIGHAT
P.S.- LAHARIGHAT
DIST.- MORIGAON
ASSAM
PIN- 782127
Advocate for the Petitioner : MR. D C C PHUKAN
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Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
06.05.2024
(Suman Shyam, J)
Heard Mr. D.C.C. Phukan, learned counsel for the applicant/ appellant. Also
heard Ms. S. H. Bora, learned Addl. P.P., Assam appearing for the State. Mr. J. C.
Borah, learned counsel is present on behalf of the respondent Nos.2 and 3.
By the judgment dated 08.12.2023 passed by the learned Additional Sessions
Judge -cum- Special Judge (POCSO), Morigaon in POCSO Case No.58/2020,
the applicant herein was convicted under Section 6 of the POCSO Act and
sentenced to undergo rigorous imprisonment for a period of 20 years and to
pay a fine of Rs.10,000/- with default stipulation. Being aggrieved by the
impugned judgment dated 08.12.2023 the applicant as appellant has preferred
Criminal Appeal No.22/2024 which is pending disposal before this Court. The
applicant/ appellant is in jail.
By filing the instant I.A. the applicant is seeking suspension of his jail sentence
and also for his release on bail.
By referring to the materials on record, Mr. Phukan, learned counsel for the
applicant/appellant, has argued that there is material discrepancy in the
version of the victim girl as recorded under Section 164 Cr.P.C. as well as her
deposition recorded by the Court and the other witnesses have also not
supported the version of the victim. In support of his aforesaid argument, the
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applicant's counsel has taken us through the materials available on record
including the statement/testimony of the victim girl as well as the deposition of
PW-3. It is also the submission of Mr. Phukan that although the victim has stated
about insertion of finger in her lower part, but later on, the prosecution case has
changed to rape having been committed on the victim, thus, raising a serious
doubt on the veracity of the prosecution story. Contending that the prosecution
story is entirely concocted and have been brought forward only to extract
undue benefit from his client Mr. Phukan has prayed for suspension of jail
sentence of the applicant and releasing him on bail during the pendency of
the appeal.
Opposing the said prayer, Ms. Bora, learned Addl. P.P. has argued that there is
total consistency not only in the version of the victim but the prosecution story
has also been duly corroborated by the other prosecution witnesses. Therefore,
submits Mr. Bora, the learned Court below has rightly convicted the
applicant/appellant. Under the circumstances, submits the learned Addl. P.P.,
there is no scope for releasing the applicant/appellant on bail.
Mr. J. C. Borah, learned counsel for the respondent Nos.2 and 3 has supported
the arguments of the learned Addl. P.P.
We have considered the submissions made at the Bar and have also gone
through the materials available on record.
After examining the statements of the victim, who was aged about 10 years on
the date of the occurrence, we find that there is substantial consistency in her
statement recorded under Section 164 Cr.P.C. as well as the version recorded
before the Court. That apart, it also prima facie appears that the prosecution
story has been duly supported by the other witnesses examined by the
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prosecution. Minor discrepancies, if any, can only be examined during the
course of final hearing of the appeal so as to ascertain as to whether, the same
will have any material bearing in the outcome of the appeal. However, such an
exercise will be unwarranted at this stage, while considering the bail prayer.
The alternative submission of Mr. Phukan is that it is not a case of rape but
insertion of finger in the private parts (vagina) of the victim. Even if the said
argument of the applicant's counsel is accepted, even then, we are of the
prima facie opinion that the same would also constitute an offence under
Section 3(b) of the POCSO Act and therefore, would attract punishment under
Section 4 of the said Act. Since the appeal preferred by the applicant is
pending disposal on merit, we refrain from making any further observation in this
regard.
Having regard to the facts and circumstances of the case and in view of the
discussions made herein above, we are of the considered view that this is not a
fit case for releasing the applicant on bail. Therefore, this bail application stands
rejected.
We, however, make it clear that our observations made herein above are only
for the limited purpose of disposing of this I.A. and the same shall not have any
bearing at the stage of final hearing of the appeal.
I.A. stands disposed of.
JUDGE JUDGE
Comparing Assistant
