Gauhati High Court
Page No.# 1/5 vs The State Of Assam And Anr on 19 March, 2025
Page No.# 1/5
GAHC010204192024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
I.A.(Crl.)/867/2024
MAGRE KULI @ DEBA KANTA AND ANR
S/O. SRI. RABINDRA KULI
R/O. VILL. NO.2 MECHAKI TONGANI
P/O. AND P/S. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN-787059
2: SRI. LABAN PEGU
S/O.LT. PADMADHAR PEGU
R/O. NO.2 MECHAKI TONGANI
P/O. AND P/S. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN-787059.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP
ASSAM.
2:SMTI. BALA PAIT
W/O. LT. PRAFULLA PAIT
R/O. VILL. HALDIBARI
P/O. AND P/S. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN-787059
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Advocate for : MR. M KALITA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : --19.03.2025
Heard Mr. M. Kalita, the learned counsel for the applicants. Also heard Ms.
N.N. Das, the learned Additional Public Prosecutor for State respondent no. 1
and Mr. G.J. Goswami, learned counsel for respondent no. 2.
2. This is an application u/s 389(2) of the Code of Criminal Procedure, 1973
R/W Section 430(2) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 for
suspension of sentence passed against the present applicants vide judgment &
order dated 07.08.2024 passed by the learned Special Judge (POCSO), Dhemaji,
Assam in POCSO Case No. 02/2017, convicting the accused/appellants to
undergo Rigorous Imprisonment for 5 years each and to pay fine of Rs. 5,000/-
each for committing the offence punishable u/s 366A/34 IPC and in default of
payment of fine, to suffer Rigorous Imprisonment for 3 months each and to
suffer Rigorous Imprisonment of 1 year each and to pay fine of Rs. 1,000/- each
for committing the offence publishable u/s 344/34 IPC and in default of
payment of fine, to suffer rigorous imprisonment for 1 (one) month each.
3. It is submitted by Mr. Kalita that initially he filed the application/appeal on
behalf of two petitioners/appellants i.e. Magre Kuli @ Deba Kanta and one
Laban Pegu but it was learnt subsequently that the said Laban Pegu, applicant
no. 2 had already approached another counsel and his case is already filed by
another counsel which has already been registered as Criminal Appeal No.
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376/2024 and accordingly he submitted that the name of applicant/appellant
no. 2 Laban Pegu may be strike out.
4. It is further submitted by Mr. Kalita, the learned counsel for the applicants
that the present accused/applicant is innocent and he is no way connected with
the alleged offence though he was convicted u/s 366A/344/34 IPC. He further
submitted that from the medical evidence of the doctor it is seen that there is
no sign of injury found on the victim's private parts nor there found any sign of
recent forceful sexual intercourse while examining her. All the other PWs i.e. the
PW-7, PW-8 and PW-9 corroboratory with each other deposed that the victim
girl had voluntarily eloped with one Biswajit Doley out of love and affairs and
they stayed together accordingly. More so, the informant herself stated in her
examination that she is not aware about the contents of the FIR and rather it is
stated that the FIR was lodged only due to some misunderstanding of facts and
to that effect she also sworn in an affidavit which is also placed before this
Court through the engaged counsel Mr. G.J. Goswami appearing for the
respondent no. 2. Mr. Kalita further submitted that it was alleged that the victim
was kidnapped by three persons i.e. the present applicant along with two others
showing a dao from a jungle near to a shop. But surprisingly, the said dao was
not seized in connection with this case, as well as, the shopkeeper was also not
examined to substantiate the said fact. Accordingly, it is submitted that there is
sufficient probability of acquittal of the present applicant and succeeding in the
connected appeal. Further he has submitted that the applicant was on bail
during the entire trial and never jumped over any condition of bail and further
he is ready and willing to provide sufficient surety if he is granted the bail by
suspending the sentence imposed on him.
5. Ms. Das, the learned Additional Public Prosecutor submitted in this regard
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that from the evidence on record it is seen that the victim is consistent in every
stages of her evidence/statement and she clearly justified that she was
kidnaped by three persons showing dao and out of which the accused Biswajit
Doley committed rape on her though she did not bring the allegation of rape or
penetrative sexual assault against the present applicant. She accordingly
submitted that there are sufficient incriminating materials against the present
applicant and raised objection in allowing the accused/applicant to go on bail by
suspending the sentence imposed on him.
6. Mr. Goswami, the learned counsel appearing for the informant submitted
that the informant has no objection if the accused-applicant is allowed to go on
bail by suspending the sentence as the case/FIR was lodged by her only due to
some misunderstanding of facts. And to that effect she had already sworn an
affidavit stating that she has no objection if the applicant is allowed to go on
bail.
7. Considering the submissions made by learned counsel for both sides and
also considering the fact that the informant of this case has no objection in
granting bail to the present applicant vis-à-vis the other materials placed before
this Court and also considering the conduct of the accused-applicant during the
trial, I find it a fit case to allow the present applicant to release on bail and
accordingly the accused-applicant, namely, Magre Kuli @ Deba Kanta is hereby
allowed to go on bail of Rs. 20,000/- with one surety of like amount to the
satisfaction of the learned Special Judge (POCSO), Dhemaji, Assam.
8. The judgment and order dated 07.08.2024 passed by the learned Special
Judge (POCSO), Dhemaji, Assam in POCSO Case No. 02/2017 as stated above is
stayed/suspended till disposal of the case.
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9. With the above observations, the IA stands disposed of.
JUDGE
Comparing Assistant
