Bail application dismissed in rape case involving a 14-year-old minor. The Court held the victim's statement recorded under Section 164 Cr.P.C. defeating the informant's affidavit claiming misunderstanding, making it an unfit case for bail.
Bail application dismissed. No bail granted.
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GAHC010118862020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln. 1751/2020
1:ALI HUSSAIN
S/O MD. ATAR ALI SEKH @ ATOWAR ALI, R/O NEW HATIPOTA, P.S. CHAPAR, P.O. HATIPOTA, DIST. DHUBRI, ASSAM
VERSUS
1:STATE OF ASSAM REP. BY THE PP, ASSAM
Advocate for the Petitioner : MRS. B GOGOI
Advocate for the Respondent : PP, ASSAM
B E F O R E
HON’BLE MR. JUSTICE HITESH KUMAR SARMA
05-10-2020
The Court proceedings have been conducted through Video-Conference.
This is an application made under Section 439 Cr.P.C., seeking bail by the accusedpetitioner, namely, Ali Hussain , in connection with Chapar P.S. Case No.216/2019 , registered under Sections 376 of the Indian Penal Code read with Section 4 of POCSO Act.
Heard Ms. B.Gogoi, learned counsel for the petitioner. Also heard Mr. B.Sarma, learned Additional Public Prosecutor, Assam for the Respondent State.
Case diary produced has been perused including the statement of the victim recorded under Section 164 of the Code of Criminal Procedure.
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It appears from the materials in the case diary that the victim is a minor of about 14 years of age and there is material in the statement of the victim that she was raped by the petitioner in a jungle forcibly. The FIR has been registered under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act.
Ms. Gogoi, learned counsel for the petitioner has referred to an affidavit at Page-22 of the petition, wherein the informant had indicated that the lodging of the FIR is as a result of some misunderstanding. But, the fact remains that the victim in her statement recorded under Section 164 of the Code of Criminal Procedure has implicated the petitioner with the commission of rape on her person and, admittedly, she is a minor. In such a situation, the affidavit sworn in by the informant is not of relevance at this stage.
That being so, this is not a fit case for granting the privilege of bail at this stage.
The bail application stands dismissed.
Return the case diary.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether bail should be granted to the accused charged with rape of a minor under Section 376 IPC read with Section 4 POCSO.
Whether an affidavit by the informant alleging misunderstanding defeats the victim's statement implicating the accused.
4 provisions across 3 enactments
ALI HUSSAIN
STATE OF ASSAM REP. BY THE PP, ASSAM
HITESH KUMAR SARMA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
