Page No.# 1/7 vs The State Of Assam And Anr. B
2025 Latest Caselaw 5617 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And Anr. B on 23 June, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                                                       Page No.# 1/7

GAHC010288672023




                                                                 2025:GAU-AS:8315

                            THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : I.A.(Crl.)/1268/2023

           AFAZUDDIN ALI @ AFAJ UDDIN
           S/O- HASMOT ALI, R/O- CHOTO ALLIA, P.O. ALLIA, P.S. GHOGRAPARA,
           DIST. NALBARI, ASSAM



           VERSUS

           THE STATE OF ASSAM AND ANR. B
           REPRESENTED BY THE P.P., ASSAM

           2:AKLIMA KHATUN
            D/O- ABDUL RAHMAN
            R/O- NO. 1 ARAARA
            P.O. ALLIA
            P.S. GHOGRAPARA
            DIST. NALBARI
           ASSA

Advocate for the Petitioner : MR Z KAMAR, MR H BARUAH,MR P P PHUKAN,MRS. H
THAKURIA,MRS. M TALUKDAR,MR. S Z RAHMAN,MR. N I KHAN,F K R AHMED

Advocate for the Respondent : PP, ASSAM,




            Linked Case : Crl.A./478/2023

           AFAZUDDIN ALI @ AFAJ UDDIN
           S/O- HASMOT ALI
           R/O- CHOTO ALLIA
           P.O. ALLIA
           P.S. GHOGRAPARA
                                                                                    Page No.# 2/7

             DIST. NALBARI
             ASSAM


             VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE P.P.
            ASSAM

            2:AKLIMA KHATUN
            D/O- ABDUL RAHMAN
             R/O- NO. 1 ARAARA
             P.O. ALLIA
             P.S. GHOGRAPARA
             DIST. NALBARI
            ASSAM
             ------------
            Advocate for : MR Z KAMAR
            Advocate for : PP
            ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                     BEFORE
                   HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                            ORDER

23.06.2025 Heard Mr. Z Kamar, learned Senior counsel assisted by Mr. N I Khan, learned for the applicant/appellant. Also heard Mr. B Sharma, learned Additional Public Prosecutor, Assam for the State respondent No. 1 and Ms. Manisha Karen Brown, learned Amicus Curiae for the respondent No. 2/informant.

2. Learned Special Judge (POCSO), Nalbari by judgment of conviction dated 27.10.2023 and sentence dated 31.10.2023 passed in Special (POCSO) Case No. 45/2021 arising out of Ghograpar Police Station Case No. 490/2021, corresponding to G.R. No. 2052/2021 convicted the applicant/appellant under Section 363 IPC read with Section 4 of the POCSO Act and for that purpose sentenced the appellant with three years Simple Imprisonment with fine of Rs. 3,000/- under Section 363 IPC, in default Simple Imprisonment for two months with further Simple Imprisonment for ten years with fine of Rs. 5,000/-, in default Simple Imprisonment for three months under Section 4 of the POCSO Act, where both the sentences to run concurrently, setting Page No.# 3/7

off the period of detention already undergone during the investigation and trial of the said case.

3. Against the said impugned judgment of conviction dated 27.10.2023 and sentence dated 31.10.2023 passed in Special (POCSO) Case No. 45/2021, the applicant/appellant preferred the connected appeal, which was already admitted by order dated 22.12.2023.

4. Along with the said appeal, the applicant/appellant has preferred this Interlocutory Application under Section 389(2) of the CrPC being I.A.(Crl) No. 1268/2023, praying for suspension of the sentence and to allow him to go on bail pending disposal of the criminal appeal.

5. The applicant/appellant in his said bail application contended that the FIR was lodged against six accused persons with specific allegations, but after completion of the investigation charge-sheet was filed against the applicant/appellant and the trial Court passed the impugned judgment of conviction dated 27.10.2023 and sentence dated 31.10.2023. It is submitted that the entire case of the prosecution is built up in weak foundation and that the prosecution failed to prove the case beyond the iota of doubts and therefore, the applicant/appellant submitted that he is entitled for bail.

6. The applicant/appellant also stated that case of the prosecution is purely manufactured and stands on falsehood and the prosecution tried to make up a case implicating him only with a view to take revenge against him dragging him into criminal proceeding when he along with his family members refused to marry the victim girl.

7. The Trial Court without evaluating the evidences available on record in its proper perspective and in total non-application of mind ignoring the contradictions passed the impugned judgment of conviction dated 27.10.2023 and sentence dated 31.10.2023.

8. It is submitted that there is every chance of his acquittal in appeal on the basis of the grounds taken by him against the impugned judgment of conviction dated 27.10.2023 and sentence dated 31.10.2023.

9. It is submitted that on receipt of summons from the Trial Court, the applicant/appellant appeared before the said Court and on his such appearance he was taken into judicial custody and during the course of the trial on his application the learned Trial Court being satisfied allowed him to go on bail. While he was on bail during the trial he did not misuse the liberty granted to Page No.# 4/7

him. At the time of the impugned judgment of conviction dated 27.10.2023 he was taken into custody and since then, he is undergoing the sentence. For all such reasons he has prayed for his bail till disposal of the criminal appeal filed by him against the impugned judgment of conviction dated 27.10.2023 and sentence dated 31.10.2023.

10. The State has filed its objection against the bail of the applicant/appellant, stating that the applicant took the victim girl to a house in Nilpur on the pretext of outing where he committed the offence upon her. From some time back the applicant/appellant continued with such offence repeatedly just on the pretext of having love affair with her and also threatened her if she do not come to his house, he will commit suicide. Later the applicant ended his relation with the victim girl after committing such offence.

11. In the objection filed by the prosecution, placed the evidences of the PW-1, informant of the case/mother of the victim, PW-2, the victim herself, PW-3, an independent witness, PW-6, the Doctor concerned, PW-8, the concerned Investigating Officer of the case and statement of the minor victim under Section 164 CrPC as well as the original Birth Certificate of the victim girl, which indicates that at the time of the incident the victim was 16 years 9 months old, i.e., a minor as defined under the POCSO Act.

12. It is submitted by Mr. Sharma, learned APP, Assam that the victim was a minor and the accused appellant kidnapped the victim girl from her lawful guardian and took her to a house in Nilpur where he committed rape on her with a promise to marry her.

13. Relying on the testimonials of PW-1, PW-2, PW-3, PW-6, PW-8, Section 164 CrPC statement of the victim girl/PW-2 and the Birth Certificate of the victim, Mr. Sharma submitted that the prosecution could prove beyond reasonable doubt that on the date of occurrence the victim girl was a minor who was kidnapped by the accused appellant and that the accused appellant committed rape upon her after kidnapping her from her lawful guardian and thereby prosecution proved that the accused is guilty under Section 363 IPC read with Section 4 of the POCSO Act. Therefore, Mr. Sharma, learned APP, Assam submitted that applicant is not entitled for his bail and prayed for rejection of his bail application.

14. Ms. M K Brown, learned Amicus Curiae for the informant/respondent No. 2 submitted that the prosecution proved the accusation against the applicant/appellant and accordingly he has been sentenced and convicted under Section 363 IPC read with Section 4 of the POCSO Act. The Page No.# 5/7

victim was a minor at the time of the incident when the applicant/appellant kidnapped her and committed rape on her with a promise to marry her, which indicate that inducing the minor victim girl the applicant/appellant committed the heinous crime. In the pretext of having love relation with the victim girl the applicant/appellant forcefully had intercourse with her promising her to marry but later he refused to marry her.

15. Considering the date of the incident on 22.07.2021 and the date of birth of the victim girl as 10.10.2004, the victim girl was only 16 years 9 months on the date of the alleged crime and was a minor as defined under the POCSO Act, Ms. Brown, learned Amicus Curiae submitted that the accused applicant/appellant has rightly been convicted under Section 363 IPC read with Section 4 of the POCSO Act by the learned Special Judge (POCSO), Nalbari in said Special (POCSO) Case No. 45/2021 arising out of Ghograpar P.S. Case No. 490/2021. It is also seen that as per his birth certificate the applicant/appellant was born on 02.02.2003 and on the date of the incident on 22.07.2021, the accused applicant/appellant was 18 years 5 months and in the charge-sheet of the case he was shown as 19 years old.

16. It is seen from the records of the case that accused applicant/appellant during the investigation evaded arrest and absconded till filing of the charge-sheet in the case on 30.11.2021. The learned Special Judge (POCSO), Nalbari in its order dated 23.12.2021 observed that the accused applicant/appellant is an absconder and after taking cognizance of the offence under Section 376 IPC read with Section 4 of the POCSO Act on 23.12.2021 issued summons to him for his appearance. As the applicant/appellant by filing petition through his counsel took time on 05.04.2022, 02.05.2022, 03.06.2022, the Special Court on 03.06.2022 gave an ultimatum for appearance of the applicant/appellant. Ultimately the accused applicant/appellant appeared before the Special Court on 27.06.2022. Charge was framed under Sections 366/376 IPC read with Section 4 of the POCSO Act on 27.06.2022 in said Special (POCSO) Case No. 45/2021 and on the bail prayer of the applicant/appellant, he was granted bail by the Special Court on 27.06.2022 itself. Thereafter, on date of the judgment of Special (POCSO) Case No. 45/2021, i.e., 27.10.2023, the convicted applicant/appellant was taken into judicial custody and the order of sentence was passed on 31.10.2023. As such, the accused applicant/appellant is only on custody since 27.10.2023.

17. Considering that the applicant/appellant is in custody since 27.10.2023 and that he did not misuse the liberty of bail that was granted to him during the trial of the case and also considering Page No.# 6/7

that the applicant/appellant was just above 18 years 5 months on the date of the incident and that the appeal against the impugned judgment of conviction dated 27.10.2023 and sentence dated 31.10.2023 passed in Special (POCSO) Case No. 45/2021 being already admitted on 22.12.2023, the Court is of the view that in the facts and circumstances of the case, discretion is required to be exercised in favour of the accused applicant/appellant.

18. Hence, the Interlocutory Application of the accused applicant/appellant is allowed and the order of sentence imposed by the learned Special Judge (POCSO), Nalbari in Special (POCSO) Case No. 45/2021 dated 31.10.2023 shall remain under suspension till disposal of the connected Criminal Appeal No. 478/2023, subject to the execution of bond in the sum of Rs. 1,00,000/- (One Lakh Only), with two sureties of Rs. 50,000/- each, to the satisfaction of the learned Special Judge (POCSO), Nalbari, on conditions that the applicant/appellant, Afazuddin Ali @ Afaj Uddin, son of Hasmot Ali, resident of village-Choto Allia, P.S.-Ghograpar, District-Nalbari -

(i) Shall deposit his passport, if any, before the learned Special Judge (POCSO), Nalbari within a week from today;

(ii) Shall not leave the State of Assam, without prior written permission from the Court of learned Special Judge (POCSO), Nalbari;

(iii) Shall not take undue advantage of his liberty and shall also not abuse his liberty and further, shall maintain law and order;

(iv) Shall furnish latest and permanent address of his residence along with his telephone number and mobile number in writing before the Court of learned Special Judge (POCSO), Nalbari at the time of execution of the bond and shall not change his residence, telephone number, mobile number, without prior written permission of the Court of learned Special Judge (POCSO), Nalbari;

(v) Similarly, if either or both of the sureties change their addresses, they shall in writing provide his/her/their changed address with telephone number/mobile number before the Court of learned Special Judge (POCSO), Nalbari;

(vi) Shall not come into the vicinity of the victim girl or anyone from her family members;

(vii) Shall not harm/threat the minor victim girl, any one of her family members by him or by anyone acting on his behalf in any manner;

Page No.# 7/7

(viii) Shall not involve himself in any criminal activities in future.

19. Any violation of the aforesaid terms and conditions by the applicant/appellant and his sureties, the prosecution may approach this Court for cancellation of the bail of the applicant/appellant, named above, in said Special (POCSO) Case No. 45/2021.

20. With the above observation and direction, this Interlocutory Application, stands disposed of.

JUDGE

Comparing Assistant