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Gauhati High Court
Sushil Das vs The State Of Assam And Anr on 26 August, 2025
Page No.# 1/8
GAHC010008562025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/92/2025
SUSHIL DAS
S/O SRI RATUL DAS
RESIDENT OF VILLAGE RUPAHI GAON, PO AND PS GHILAMARA, DIST
LAKHIMPUR ,ASSAM 787053
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP ASSAM
2:SMTI PRIYADHANI RAY
W/O BIPLAB RAY
RESIDENT OF VILLAGE RUPAHI GAON
PO AND PS GHILAMARA
DIST LAKHIMPUR
ASSAM 78705
Advocate for the Petitioner : MR. M K NEOG, MR. S K SINGHA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
26.08.2025
Heard Mr. B. K. Mahajan, learned counsel for the applicant/appellant. Also
heard Mr. R. J. Baruah, learned Addl. P. P., Assam appearing for the State and
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Mr. S. Khound, learned counsel representing the respondent No.2.
2. This is an application filed by the applicant under Section 430 of the
BNSS, 2023 for granting of bail to the applicant in connection with the
conviction and sentencing order dated 24.12.2024 passed by the learned
Special Judge (POCSO), Lakhimpur in Special (POCSO) Case No.125/2019 by
which the applicant was convicted under Section 4 of the POCSO Act and
sentenced to undergo rigorous imprisonment for 10 years with fine and default
stipulation.
3. The fact of the case is that on 21.12.2019 the mother of the victim lodged
an ejahar at Ghilamara Police Station alleging that on 09.11.2019 at around
10:00 P.M. the applicant called her 14 years old daughter over phone in a
garden and raped her there. It was also stated by the informant that the
applicant had enticed her by showing his love towards her. On receipt of the
F.I.R. the police registered the case under Section 376(3) of the IPC read with
Section 4 of the POCSO Act and on completion of the investigation the police
submitted charge-sheet under the aforesaid provisions of law and thereafter on
fulfillment of other requirements, the charges were framed against the applicant
and the trial was conducted and on completion of the trial the applicant was
punished as stated above.
4. Mr. B. K. Mahajan, learned counsel appearing for the applicant submits at
the very outset that the age of the victim was not conclusively proved in the
instant case. He submits that although it is in the evidence that birth certificate
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of the victim was seized but the same was not exhibited by the Investigating
Officer whereas the mother of the victim had stated during her deposition that
the victim was 14 years of age. However, he had also placed that the mother of
the victim in her cross-examination stated that she does not remember the date
of her marriage nor the date of her daughter’s birth. Mr. Mahajan further
submits that in absence of any documentary evidence relating to the age of the
victim, the medical evidence may be relied upon and in the instant case the
doctor has opined that the age of the victim would be between 15 to 17 years
and by giving the margin of 2 years on either side as held by the Apex Court in
a number of decisions the age of the victim would be 19 years by giving 2 years
on the higher side to the benefit of the accused person as has been held by the
Apex Court. As such, he submits that the age of the victim would be 19 years
and she is a major not a minor which, however, was not considered at all by the
learned Trial Court. To substantiate his argument, Mr. Mahajan has placed the
following judgments (1) Jaya Mala Vs. Home Secretary, Government of
Jammu & Kashmir and others reported in (1982) 2 SCC 538, (2) Utpal
Debnath Vs. State of Assam reported in (2023) 3 GLT 816 and (3)
Mithun Rajbongshi Vs. State of Assam and another [delivered by Gauhati
High Court in Criminal Appeal No.94/2021].
5. Mr. Mahajan also submits that the statement of the victim was not
consistent before all the authorities inasmuch as she had not stated about the
applicant gagging her mouth during the occurrence before the Trial Court which
she had stated before the Magistrate and the police. Mr. Mahajan also submitted
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that in case the sentence is given for a fixed period, bail should be a rule and
rejection of the same is an exception. To substantiate this argument he has also
relies on Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat
reported in (1999) 4 SCC 421.
6. On the other hand, Mr. R. J. Baruah, learned Addl. P.P., Assam by filing
written objection has submitted that it is clearly stated by the doctor in his
evidence that the age of the victim would be between 15 and 17 years and that
the mother had also stated that the victim was 14 years of age and as such it is
proved that the victim was minor. He also submits that the Trial Court had relied
on Ext-4 i.e. the report of the doctor in order to establish the said fact. He also
submits that the statement of the prosecutrix is consistent before all the
authorities as to the core spectrum of the incident is concerned. As such, he
prayed that no bail may be granted.
7. Mr. S. Khound, learned counsel for the respondent No.2, however, had
taken a preliminary ground of objection in the said proceeding. He raised the
issue of maintainability of the instant application and has stated that the said
Interlocutory Application is not maintainable inasmuch as the applicant had not
prayed for suspension of the sentence in the said application and that only bail
was prayed for on behalf of the applicant. To substantiate his argument he has
placed Section 430 of the BNSS which provides that the Court may suspend the
sentence and release the applicant on bail during pendency of the appeal. He
has placed reliance on the following judgments :
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(1) Ashwani Kumar Saxena Vs. State of Madhya Pradesh
[ (2012) 9 SCC 750] wherein the Hon’ble Apex Court has observed that in case
of exact assessment of age, the court may give the benefit to the child or
juvenile by considering the age within the margin of one year.
(2) State of Madhya Pradesh Vs. Anoop Singh [(2015) 7 SCC 773]
by which the Apex Court has observed that in absence of the birth certificate or
any other certificate as provided under Rule 12 of Juvenile Justice Rules, 2007,
the ossification test may be relied on.
(3) Janardan Ray Vs. State of Bihar and another [ Judgment
delivered by Supreme Court in Criminal Appeal Nos.1892-1893 of 2025] by
which the Apex Court has held that suspension of sentence and the consequent
bail may be granted only in rare and exceptional cases. As such, Mr. Khound
submits that no bail may be granted to the applicant at this stage.
8. I have heard the learned counsel for the parties and have gone through
the materials available on record.
9. It is no res integra that while considering the application for suspension of
sentence and the consequent bail during pendency of the appeal the Court may
only see the prima facie case. It is also no res integra that the conviction under
the POCSO Act can be granted on the sole basis of the statement of the
prosecutrix provided the same is consistent before all the authorities and the
same inspires the confidence of the Court.
10. The Apex Court in a catena of judgments had observed that the
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statement of the prosecutrix right from the beginning i.e. before the police and
till her statement before the Trial Court should be consistent not only to the
core spectrum of the case but also to the sequence of the case. In Rai
Sandeep Vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 the Apex
Court has held the above observation.
11. It is noticed in the instant case that the victim had stated in her evidence
before all the authorities that she and the applicant were in relationship with
each other and on the night of occurrence the applicant had called her at a
particular place to which she went on her own volition and where she stated
that the applicant had forced her into physical intimacy and that both of them
had gone to their respective houses thereafter. She has also stated that when
she missed her menstrual cycle she got scared and she told her family members
about the incident and only then the incident came to light and the ejahar was
lodged against the applicant. In her statement before the police and the
Magistrate she stated that the applicant had gagged her mouth during the
incident and as such she could not shout. However, before the Trial Court she
did not say about the said fact. Although in one of her statement in the cross-
examination she simply stated that she could not shout because the accused
gagged her but in her examination-in-chief she did not give the consistent
sequence of this incident.
12. Further, it is a settled position of law that 2 year margin has to be given to
either side while calculating the age of the victim based on medical report. In
the instant case, the doctor reported that the age of the victim was between 15
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and 17 years and it has been held by the Hon’ble Apex Court that the benefit
should go to the accused while giving that 2 years margin. Further, although the
birth certificate was seized by the police but the same was not exhibited during
the trial and as such, the same cannot be taken into consideration in the instant
case as per law.
13. In view of the further submission of non-maintainability of the present
petition, this Court has observed that Section 430 of the BNSS provides that the
Appellate Court pending the appeal for reasons to be recorded in writing, order
that the sentence may be suspended and if the applicant is in confinement be
released on bail.
14. As such, in view of the discussions made above, this Court finds it fit to
suspend the sentence imposed upon the applicant and release him on bail
during the pendency of the connected Criminal Appeal on furnishing a bail bond
of Rs.50,000/- with two local sureties of the like amount to the satisfaction of
the learned Special Judge (POCSO), Lakhimpur, North Lakhimpur on the
following conditions :-
(1) That the applicant will not approach the victim or her family
members.
(2) That the applicant will not harass the victim or her relatives in any
manner.
15. It is made clear that the observations made herein are solely for the
purpose of disposal of the instant I.A. and the same shall not have any bearing
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on the merits at the time of final hearing and disposal of the connected appeal.
16. The I.A. stands disposed of.
JUDGE
Comparing Assistant
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