[Cites 4, Cited by 0]
Gauhati High Court
Bijay Das vs The State Of Assam And Anr on 28 January, 2026
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010111232023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/1155/2025
in
CRL.A(J)/68/2023
BIJAY DAS
AGEDABOUT 40 YEARS
S/O DHIRESH DAS
R/OVILLAGE - GOSHAIBORI HIRAPARA
P.S - MATIA
DISTRICT - GOALPARA
ASSAM - 783125
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM.
2:CHITRA DAS
INFORMANT
W/O LATE DINESH DAS
GOXAIBARI BIRAPARA
P.S - MATIA
DISTRICT - GOALPARA
ASSAM. PRESENTLY RESIDING AT MAHADEB PATH
DURGA SAROBAR HILLSIDE
P.S BHARALUMUKH
GUWAHATI
DIST KAMPUPM
ASSAM
------------
Advocate for : MR D BHATTACHARYA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
28.01.2026
(K. Goswami, J)
Heard Mr. D Bhattacharya, learned Legal Aid counsel for the
applicant/appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor,
Assam for the State as well as Ms. R B Bora, learned Legal Aid counsel for the
respondent No. 2.
2. This application is preferred under Section 430 of the BNSS, 2023, praying
for suspension of the sentence passed in relation to the judgment & order dated
04.02.2023 passed by the learned Special Judge, Goalpara in Special (P) Case No.
42/2021 and to release the applicant/appellant on bail during pendency of the
connected criminal appeal.
3. By the aforesaid Judgment & Order dated 04.02.2023, the learned Special
Judge, Goalpara in Special (P) Case No. 42/2021 convicted the applicant/appellant
under Section 4 of the POCSO Act and sentenced him to undergo rigorous
imprisonment for 20 (Twenty) years and also to pay a fine of Rs. 20,000/- (Rupees
Twenty Thousand) only, in default to undergo simple imprisonment for four months
and further, sentenced to undergo rigorous imprisonment for two months each
under Sections 448/342 of the IPC, setting off the period of detention already
undergone.
4. Mr. D Bhattacharya, learned Legal Aid counsel for the applicant, contended
that the FIR itself discloses that a quarrel had taken place between the mother of
the victim (PW-2)/informant and the accused over domestic issues and therefore,
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the accused has been falsely implicated out of animosity. He further contended that
the medical examination neither revealed injuries on the private parts of the victim
nor showed any signs of recent sexual activity, thereby creating doubts about the
prosecution case. He accordingly, on these grounds, prays for suspension of the
sentence.
5. Per contra, Ms. B Bhuyan, learned APP, Assam, opposes the prayer,
submitting that the victim was a minor aged about 12 years old at the time of the
occurrence, her testimony has remained consistent and cogent throughout the
proceedings and the trial Court has recorded a clear finding that she is a
trustworthy and a reliable witness. It is argued that in offences under the POCSO
Act, medical corroboration is not an indispensable requirement where the
testimony of the prosecutrix inspires confidence. Ms. R B Bora, learned Legal Aid
counsel for the respondent No. 2 similarly opposes the said prayer.
6. We have given our prudent consideration to the arguments advanced by the
learned counsels appearing for the parties and have perused the materials
available on record.
7. The scope of consideration under Section 430 BNSS, 2023, at the stage of
suspension of sentence is limited. The appellate Court is not required to conduct a
detailed re-appreciation of evidence, but to see whether a strong prima facie case
of perversity or glaring infirmity in the conviction is made out, particularly in cases
involving serious offences and long sentences.
8. In the present case, the victim was a child of about 12 years and 14 days
old. It appears that the trial Court upon appreciation of evidence, has found her
deposition to be natural, consistent and trustworthy on the core aspects of the
occurrence. It is well settled that conviction in sexual offences can be based on the
sole testimony of the prosecutrix, if the same is reliable and inspires confidence.
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9 The submission of the applicant as regards the accused being falsely
implicated out of animosity cannot by itself at this stage throw out the testimony of
the victim, who has consistently narrated the occurrence from the inception of the
prosecution till her deposition before the Court, without the accused adducing any
evidence whatsoever to prove such a defence. The trial Court, which had the
advantage of observing her demeanor, has recorded a categorical finding that her
evidence is trustworthy and inspires confidence of the Court. The conviction is thus
founded primarily on the direct testimony of the child victim, and not merely on the
statements of her mother. At this stage, this Court, cannot re-appreciate the
evidence to test the defence plea of false implication in detail. The finding of
credibility recorded by the trial Court, cannot be displaced, merely on the basis of
an asserted prior quarrel, particularly, in a case involving sexual assault on a minor.
10. As regards the absence of injuries or lack of signs of recent sexual activity, it
is equally settled that such medical findings are not decisive. Penetrative sexual
assault may occur without visible injuries and medical evidence is only
corroborative in nature. The trial Court has already weighed this aspect and still
found the prosecution's case proved.
11. The offence under Section 4 of the POCSO Act is of a grave nature,
involving sexual assault on a minor child. The sentence imposed is 20 years of
rigorous imprisonment, reflecting the seriousness of the crime.
12. At this stage, this Court does not find any prima facie perversity or patent
illegality in the findings of the trial Court warranting suspension of the sentence.
13. Hence, considering the age of the victim, the consistent and reliable
testimony of the victim, the seriousness of the offence under the POCSO Act and
the absence of any glaring infirmity in the impugned judgment, we are of the
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unhesitant view that no case for suspension is made out.
14. Accordingly, the instant interlocutory application under Section 430 of the
BNSS, 2023 for suspension of the execution of the sentence passed against the
applicant/appellant and for his release on bail stands rejected.
15. Needless to clarify that the observations made herein above are only for the
purpose of considering the applicant/appellant's prayer for suspension of execution
of the sentence passed against him and for his release on bail and such
observations shall not have any bearing on the merits of the accompanying
criminal appeal.
JUDGE JUDGE
Comparing Assistant
