Allowed

Md. Akkash Ali v. the State of Assam

Gauhati HC8 Aug 2022I.A.(Crl.)/135/2022

Case brief

AI extract

What is this about?

The Gauhati High Court granted bail to an applicant convicted under Section 4 of the POCSO Act pending appeal. The court noted fundamental issues regarding the victim's age and medical evidence but held they could be considered for bail purposes. The applicant was directed to maintain distance from the prosecutrix.

What did the court decide?

Applicant enlarged on bail by furnishing PR Bond of Rs.50,000 with surety bond of like amount to the Special Judge, Darrang, to ensure no contact with the prosecutrix.

Md. Akkash Ali Vs the State of Assam — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010055192022

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

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Case No. : I.A.(Crl.)/135/2022

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MD. AKKASH ALI

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S/O- MD. KHALEK ALI, VILLAGE NO. 1 DHALPUR, P.O. NO. 1 DHALPUR, PIN- 784145, P.S. SIPAJHAR, DIST. DARRANG, ASSAM

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VERSUS

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THE STATE OF ASSAM REPRESENTED BY P.P. , ASSAM.

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Advocate for the Petitioner : MR S BORTHAKUR

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Advocate for the Respondent : PP, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE N. KOTISWAR SINGH HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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ORDER

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Date : 08-08-2022

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(N. Kotiswar Singh, J.)

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Heard Mr. S. Borthakur, learned counsel for the applicant. Also heard Ms. B. Bhuyan, learned Senior counsel as well as Additional Prosecutor, Assam.

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2. The present application has been filed for enlarging the applicant on bail during the pendency of Criminal Appeal No.01/2022 by which the applicant has been convicted under Section 4 of the POCSO Act by the learned Special Judge, Darrang, Mangaldai in Special (POCSO) Case No.17 of 2018.

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Page No.# 2/3

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3. It has been submitted that the proof of minority of the prosecutrix is absolutely essential to bring the offence within the scope of POCSO Act and if the same cannot be said to have been proved beyond reasonable doubt, the stringent provisions of the POCSO Act could not have been invoked.

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4. It has been further submitted that there are sufficient grounds to doubt the occurrence. In this regard, learned counsel for the applicant has referred to two aspects. Firstly, that the statement of the victim herself was not reliable inasmuch she had admitted during the cross-examination that after the applicant forcefully had sex with her, blood came out and she did not submit the blood-stained clothes to the police. Though the said statement came in course of the cross-examination of the victim, the said statement is not at all corroborated by the medical evidence, which shows that her hymen was intact and there was no injury found on her private parts. Moreover, the medical examination was conducted after six days of the occurrence.

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5. Secondly, according to learned counsel for the applicant, the prosecution has not been able to prove that she is a minor inasmuch as the prosecution had relied on a school certificate, which was issued in the year 2019 but the said certificate was not proved.

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6. We have gone through the records, which have been requisitioned.

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7. Ms. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor, Assam, on the other hand, submits that the statement of the prosecutrix herself is sufficient to sustain the conviction and it cannot be said that her statement is inconsistent.

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8. We have given our anxious consideration to the contentions advanced by the learned counsel for the applicant as well as by the learned Senior counsel as well as Additional Public Prosecutor, Assam. We have also minutely gone through the records specifically the crossexamination of the prosecutrix and the medical evidence.

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9. Without making any further observation into the issues raised, we are of the view that these issues are of fundamental in nature, which require proper consideration by this Court but we are also of the view that for the purpose of grant of bail to the applicant, the said issues can be also considered for grant of benefit of bail to the applicant.

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10. Accordingly, we allow this application.

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11. The applicant may, accordingly, be enlarged on bail on furnishing of PR Bond of Rs.50,000/- with surety bond of like amount to the satisfaction of the learned Special Judge, Darrang, Mangaldai.

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12. We, however, make it clear that since the applicant resides in the neighbourhood of the prosecutrix, he shall ensure that he will not make any attempt whatsoever to come near the vicinity of the prosecutrix and also make any attempt to reach out to her in any manner, directly or indirectly, and violation of these conditions would entail recalling of this bail order.

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The IA is, accordingly, disposed of.

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JUDGE JUDGE

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Comparing Assistant

Md. Akkash Ali v. the State of Assam

Case brief

What is this about?

What did the court decide?

Md. Akkash Ali v. the State of Assam

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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