Sri Mhangchonbul Chorai vs The State Of Assam And Anr
2025 Latest Caselaw 7000 Gua

Gauhati High Court

Sri Mhangchonbul Chorai vs The State Of Assam And Anr on 4 September, 2025

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GAHC010042312025




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

                                 Case No. : I.A.(Crl.)/205/2025

            SRI MHANGCHONBUL CHORAI,
            S/O. LT. RILCHUMBAI CHORAI, P/S. HAFLONG, DIST. DIMA HASAO,
            ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE PP, ASSAM

            2:LALROPUI HMAR
            W/O. LT. CHAWNGA THIEK
             R/O. VILL.- MUOLHOI
             P/S. HAFLONG
             DIST. HAFLONG
            ASSAM

Advocate for the Petitioner   : MR RITUPARNA BORA, MR. D GOGOI,MS R MEDHI,S
BARBHUYAN

Advocate for the Respondent : PP, ASSAM,




             Linked Case : Crl.A./76/2025

            SRI MHANGCHONBUL CHORAI

            LT. RILCHUMBAI CHORAI
            P/S. HAFLONG
            DIST. DIMA HASAO
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          ASSAM


          VERSUS

          THE STATE OF ASSAM AND ANR
          REP. BY THE PP
          ASSAM

          2:LALROPUI HMAR
          W/O. LT. CHAWNGA THIEK
           R/O. VILL.- MUOLHOI
           P/S. HAFLONG
           DIST. HAFLONG
          ASSAM.
           ------------
          Advocate for : MR. R BORA
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM AND ANR



                                BEFORE
              HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                    ORDER

Date : 04.09.2025

1. Heard Mr. R. Bora, the learned counsel for the applicant. Also heard Mr. K. Baishya, the learned Additional Public Prosecutor appearing for the State of Assam as well as Mr. M. Sarma, the learned counsel for the respondent No. 2.

2. This interlocutory application has been filed by the applicant, namely, Sri Mhangchonbul Chorai under Section 430 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, praying for suspension of the sentence imposed on the applicant, by the judgment dated 06.02.2025, passed by the learned Special Judge, Dima Hasao, Haflong in Special (P) Case No. 06/2020.

3. The said judgment has been impugned by the applicant by filing a connected Criminal Appeal, i.e., Criminal Appeal No. 76/2025.

4. By the impugned judgment, the applicant was convicted under section Page No.# 3/7

16 read with Section 4 (1) of POCSO Act, 2012 and was sentenced to undergo rigorous imprisonment for 10 (Ten) years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand) and in default of payment of fine, to suffer simple imprisonment of 1 (one) month.

5. The facts relevant for consideration of the instant interlocutory application, in brief, are that on Smt. Lalropui Hmar, the President of Hmar's Women Association had lodged an FIR before the Officer-in-Charge of Halflong Police Station, inter-alia, alleging that on 09.01.2020, at around 3.00 PM, a minor (victim) who was approximately of 15 years of age was invited by her friend for an outing in an auto-rickshaw. When the victim and her friend reached Jatinga, where they were taken to a secluded place, where the victim was raped. Later on, when the victim disclosed the incident to her parent, the FIR was lodged.

6. On receipt of the said FIR, the Haflong P. S. Case No. 02/2020 was registered under Section 109/120(B)/342 of the Indian Penal Code read with Section 4 of the POCSO Act, 2012 and investigation was initiated. Ultimately, on completion of the investigation, the charge-sheet was laid against the two accused persons including the present petitioner.

7. The accusation against the present petitioner is that of indulging in a criminal conspiracy and abetment to commit offence under Section 4 of the POCSO Act, 2012 as well as Section 342 of the Indian Penal Code.

8. At the beginning of the trial, the charges under Section 16 read with Section 4 (2) of the POCSO Act, 2012 as well as, in alternative, under Section 109 read with Section 376(3) of the Indian Penal Code were framed against the above noted application. When the said charges were read over and explained to the applicant, he pleaded guilty and claimed to be tried.

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9. To bring home the charges, the prosecution examined 15 witnesses, while the defence side examined only 1 defence witness.

10. During examination of the petitioner under Section 313 of the Code of Criminal Procedure, 1973, he pleaded innocence and denied the truthfulness of the prosecution witnesses. Ultimately, by the judgement which has been impugned in the connected appeal the Trial Court convicted and sentenced the applicant in the manner as already described in paragraph No. 4 of this order hereinbefore.

11. The learned counsel for the applicant has submitted that the applicant has filed the connected Criminal Appeal No. 76/2025, which has been admitted for hearing and there is every possibility of getting a favourable order in the said appeal.

12. The learned counsel for the applicant has submitted that the accusation of rape in this case has been made against the co-accused only and no accusation of subjecting the victim girl to penetrative sexual assault has been made against the present applicant.

13. The learned counsel for the applicant has also submitted that the Trial Court erred in convicting the applicant under Section 16 of the POCSO Act, 2012 read with Section 4(1) of the said Act in as much as there is no evidence in record which suggests that the applicant had either abetted the commission of penetrative sexual assault by the co-accused upon the victim girl. He submits that the Trial Court convicted the applicant without there being sufficient and cogent evidence against him justifying his conviction in the aforesaid case.

14. He also submits that the applicant is an auto-rickshaw driver and the victim girl and her friend hired the auto of the applicant on their own volition. He further submits that the applicant as well as the friend of the victim girl tried Page No.# 5/7

to prevent the co-accused from committing rape, however, they fail. He submits that the testimony of PW-1 clearly shows that the applicant tried to intervene in the attempts made by the co-accused in commission of the offence alleged in the FIR.

15. The learned counsel for the applicant has also submitted that in the instant case, the age of the victim was not ascertained as per the provisions contain in the Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Trial Court erroneously held the victim girl to be minor.

16. He also submits that the learned counsel for the applicant has also submitted that in this case the FIR was lodged belatedly, which itself raises the suspicion regarding veracity of the prosecution story.

17. He submit that as there is every likelihood of the applicant getting a favorable order in the connected appeal, hence, the execution of the sentence imposed on him may be suspended during pendency of the connected appeal.

18. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the prayer for suspension of sentence and allowing the applicant to remain on bail during the pendency of connected criminal appeal.

19. He has submitted that the Trial Court has rightly convicted the applicant for commission of the offence of abatement under Section 16 of the POCSO Act, 2012 read with Section 4 (1) of the said Act.

20. He submits that the victim girl has clearly implicated the applicant regarding his complicity in the commission of the alleged offence. He submits that the victim girl has categorically stated in her testimony, before the Trial Court, that the applicant in spite of reservation shown by the victim girl and her friend proceeded towards Jatinga and stopped the vehicle in a secluded area Page No.# 6/7

and started consuming alcohol. It is also submitted by the learned Additional Public Prosecutor that thereafter, the victim was taken by the accused person to an unknown location, where she was forcefully raped by the co-accused.

21. He submits that the contention raised by the learned counsel for the applicant can only be considered after a full hearing in the connected Criminal Appeal and not in the instant Interlocutory Application.

22. I have considered the submissions made by the learned counsel for both sides and have carefully perused the materials available on record.

23. The instant case involves a heinous offence regarding commission of the penetrative sexual offence on a minor victim girl. The Trial Court, on the basis of evidence on record, came to a finding that applicant was found aiding and abetting the alleged offence and accordingly, has been convicted under Section 16 of the POCSO Act, 2012 read with Section 4(1) of the said Act.

24. There are a number of judgments of the Apex Court, where in it has been observed that at the stage of consideration of an application under Section 389 of the Code of Criminal Procedure, 1973 (corresponding to Section 430 of BNS), the Appellate Court should not appreciate the evidence and try to pick up lacuna here and there in the case of prosecution.

25. The Apex Court has also observed that the principle " presumption of innocence" and "bail is the rule, jail is exception" may not be applicable to an appellant who has suffered the conviction after a full trial.

26. In the instant case, it appears that the victim girl has implicated the present petitioner of taking them to Jatinga in spite of objection raised by the victim girl and her friend and thereafter, he consumed liquor by keeping the victim and her friend in a secluded place.

27. This Court is of the considered opinion that the nature of contention Page No.# 7/7

raised by the learned counsel for both sides itself shows that it requires in depth scrutiny of the evidence available on record and detail consideration of rival submissions made by the learned counsel for both sides, which may only be done at the time of final consideration of the connected appeal and not at the stage of considering an application for suspension of sentence under Section 430 of BNSS, 2025.

28. Otherwise also, this Court is of the considered opinion that the materials available on record does not justify this case to be treated in the category of case where something very gross or apparent is there on face of record which may justify the suspension of the execution of the sentence imposed on the applicant at this stage.

29. For the reasons discussed above, this Interlocutory Application is, accordingly, dismissed.

30. However, considering the ground taken by the applicant in the connected appeal, he shall be at liberty to make separate prayer for the out of turn listing and expeditious hearing of the connected appeal.

31. With the above observations, this Interlocutory Application is dismissed.

JUDGE

Comparing Assistant