Gauhati High Court
Biswajit Doley @ Debaram vs The State Of Assam And Anr on 10 January, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
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GAHC010197242024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/929/2024
in
Crl.A./318/2024
BISWAJIT DOLEY @ DEBARAM
S/O. PRODIP KUMAR DOLEY
R/O. NO.1
MECHAKI TANGANI
DIST.- DHEMAJI
ASSAM-786110
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP
ASSAM
2:SMTI. BALA PAIT
W/O.- PRAFULLA PAIT
R/O. VILL.- HALDIBARI
UNDER SILAPATHAR POLICE STATION
IN THE DIST. OF DHEMAJI
ASSAM.
------------
Advocate for : MR. M K DAS
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
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10.01.2025
(S.K. Medhi, J.)
Heard Shri M.K. Das, learned counsel for the applicant. Also heard Ms. S.
Jahan, learned Additional Public Prosecutor for the State of Assam and Shri D.
Talukdar, learned counsel for the respondent no. 2 - Informant.
2. This interlocutory application under Section 430(2) of BNSS, 2023 /
Section 389(2) of the CrPC has been filed by the applicant, namely, Biswajit
Doley @ Debaram praying for suspension of execution of sentence and stay of
realization of fine imposed on the applicant by the judgment and order dated
07.08.2024 passed by the learned Special Judge, Dhemaji in Special (POCSO)
Case No. 02/2017 whereby the applicant has been convicted under Section
366 / 34 of the Indian Penal Code and was sentenced to undergo rigorous
imprisonment for 5 years and to pay a fine of Rs.5,000/- and in default of
payment of fine to undergo rigorous imprisonment for another three months
and RI for one year and fine of Rs.1,000/- for offence under Sections 344 / 34
of the IPC in default RI for one month and further, RI for 20 years and to pay a
fine of Rs.10,000/- for offence under Section 4 of the POCSO Act in default of
payment of fine RI for another six months. The applicant has impugned the
aforesaid judgment in the connected appeal i.e., Criminal Appeal No. 318/2024
which has already been admitted.
3. Shri Das, learned counsel for the applicant has submitted that though the
judgment is concerning three accused persons, the instant application is for the
appellant no. 1. He submits that the allegation, as such were made by the
mother of the alleged victim in the Ejahar lodged on a misconception of fact. It
is submitted that while the alleged incident was of 06:30 PM of 24.03.2016, the
FIR was lodged more than a month later on 25.04.2016. He submits that there
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is no plausible or acceptable explanation for the said delay and it is also not the
prosecution case that any attempt was made to search for the alleged victim.
4. It is submitted that the evidence of the Medical Officer (PW-3) does not
support the versions of the prosecutrix - both in her statement under Section
164 of the CrPC as well as PW-1. The evidence of the mother as PW-5 also does
not support the allegation made against the applicant and there is no mention
of any sexual assault. PW-7 - the brother-in-law, PW-8 and PW-9 had deposed
of the victim's elopement with the applicant. The PW-10 had also deposed of
hearing that the victim got married. The age of the alleged victim has also been
questioned by the learned counsel while referring to the deposition of PW-11.
5. On the other hand, Ms. Jahan, learned Additional Public Prosecutor has
submitted that the stand of the prosecutrix is consistent and the conviction
being under the POCSO Act, even if the aspect of elopement is there, the same
would be irrelevant.
6. Shri Talukdar, learned counsel for the respondent no. 2 has however
submitted that he is not opposing the grant of bail to the applicant. By drawing
the attention of this Court to the affidavit dated 18.11.2024, the learned counsel
has submitted that the police case was lodged upon a misunderstanding and the
matter has been amicable settled. He has also referred to the affidavit executed
before the Notary at Dhemaji on this aspect which is also annexed to the
affidavit filed in this proceeding.
7. The rival submissions have been duly considered.
8. For adjudication of an application filed under Section 430(2) of the BNSS,
2023 / Section 389(2) of the CrPC, only a prima facie view is to be gathered
based upon the materials placed.
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9. The learned counsel for the applicant has tried to bring in inconsistencies
in the allegations and also the aspect of delay and elopement. On the other
hand, the learned APP has submitted regarding the consistency in the versions
of the prosecutrix. This Court has however noticed that the respondent no. 2,
who is the Informant in her affidavit has categorically stated regarding
misunderstanding of the situation. For ready reference, the relevant part of the
affidavit is extracted hereinbelow-
"6. That due to certain misunderstanding the aforesaid silapathar
P.S case was registered and now the entire issue has been amicably
settled. Further I hereby declare that I do not want to proceed
legally against Sr. Biswajit Doley @ Debram in connection with
Special (POCSO) Case No. 02 (DH)/2017 and I do not have any
objection whatsoever if the Hon'ble Court allows the present
interlocutory application enlarging Sri Biswajit Doley @ Debram on
bail or acquit him from the charges in Criminal Appeal No. 318/2024
arising out of Special (POCSO) Case No. 02 (DH)/2017. Be it to
mention herein that stating all the aforesaid facts I executed an
Affidavit before the Office of the Notary Public, Dhemaji."
10. Though in a matter involving the POCSO Act, the stand of the Informant
not to proceed may not have much of relevance, considering the same for the
purpose of adjudication of this application, this Court is of the opinion that
pending consideration of the appeal on its merits, the sentence against the
appellant is required to be suspended.
11. Accordingly, the instant application is allowed by suspending the sentence
in the judgment and order dated 07.08.2024 passed by the learned Special
Judge, Dhemaji in Special (POCSO) Case No. 02/2017 against the applicant. The
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applicant, namely, Shri Biswajit Doely @ Debaram is to be released on bail on
furnishing a bail bond of Rs.30,000/- (Rupees Thirty Thousand) only with a
surety of like amount subject to the satisfaction of the learned Sessions Judge,
Dhemaji in connection with Special (POCSO) Case No. 02/2017.
12. It is made clear that the present order is passed only on a prima facie
view and primarily on the stand of the respondent no. 2 in her affidavit. The
present order however would not cause any prejudice to the parties at the time
of consideration of the appeal which would be done strictly in accordance with
law.
13. The I.A. accordingly stands allowed.
JUDGE JUDGE
Comparing Assistant
