I.A.(Crl.)/84/2026 of SRI SURAJ GOWALA AND ANR Vs THE STATE OF ASSAM AND ANR on 25 August 2026

ORDER

Date : 26/08/2026 (Michael Zothankhuma, J)

1. Heard Mr. N.C. Das, learned counsel for the applicants/ appellants. Also heard Ms. S. H. Bora, learned APP, Assam and Ms. M. K. Brown, learned Legal Aid Counsel for the respondent no. 2.

2. This is an application under Section 430 BNSS, for suspending the sentence to be undergone by the applicants/appellants, pursuant to the impugned judgment dated 02/08/2025, passed by the Court of the learned Special Judge (POCSO), Tinsukia, in POCSO case no. 10/2021, arising out of Makum PS case no. 13/2021, by which the applicants/appellants have been convicted under Section 6 of the POCSO Act.

3. The learned counsel for the applicants/appellants submits that the testimony of the victim would go to show that the victim has only speculated and felt that the applicants had committed penetrative sexual assault upon the victim, who was around 15 to 16 years of age, as per the radiological examination conducted upon her by the Doctor, i.e. PW-7. Further, the evidence of the victim had been recorded on 14/07/2022, on which date, the victim gave her age to the learned Trial Judge as 20 years. As the incident had allegedly occurred on 13/01/2021, the victim could not have been less than 19 years on the date of the incident. He also submits that though charge had been framed against the applicants/appellants under Section 6 of the POCSO Act and under section 376 (D) IPC, the applicants have been convicted only under Section 6 of the POCSO Act and not under section 376(D) IPC. He submits that the conviction of the applicants under Section 6 of the POCSO Act has been done in view of an offence having been found to have been committed under section 5 (G) of the POCSO Act. However, the testimony of the victim and her statement made under section 164 Cr.P.C, does not prove that the victim had been gang- raped by the applicants/appellants. He accordingly submits that in view of the above reasons, the conviction of the applicants under Section 6 of the POCSO Act was not warranted or proved and as such, the sentence should be suspended till final disposal of the appeal.

4. The learned APP and the counsel for the respondent no. 2, on the other hand, submit that the case of aggravated penetrative sexual assault has been proved by the evidence given by the victim, which has been corroborated by her statement made under Section 164 Cr.P.C. and the Doctor's evidence, wherein a tear in the hymen was proved. They further submit that the Doctor in his evidence, has also stated that there were signs of recent sexual intercourse, besides there being swelling of the lower lip and tenderness on both thighs. They further submit that as the foundational facts have been proved by the Prosecution, the applicants were to discharge their burden of proving their innocence in terms of Section 29 of the POCSO Act, which was not done. Accordingly, the application should be dismissed.

5. We have heard the learned counsels for the parties.

6. The testimony of the victim is to the effect that she had been administered some liquor, due to which she lost her senses and regained the same at around 5 a.m. She found her wearing apparels in a torn condition and saw both the applicants standing near her. As such, “I felt that the accused persons committed bad act on me”. The victim then stated that the applicants dropped her in the house of her aunt. Further, the applicants also called the victim's cousin and told him about her condition.

7. As can be seen from the testimony of the victim, she believes that the applicants had committed a bad act on her. The testimony of the victim appears to be speculative. The 164 Cr.P.C. statement of the victim does not appear to corroborate her testimony. Though the Doctor's testimony and medical report shows that the hymen of the victim was torn and that there were recent signs of recent sexual intercourse, it cannot be said that the applicants were the perpetrators of the incident. Further, the statement of the victim under Section 164 Cr.P.C. does not prove that Section 5(G) of the POCSO Act has been committed, as the same can only be used for corroboration or contradiction and as the same is not admissible as evidence. There is nothing to show that Section 6 of the POCSO Act is attracted, besides speculation.

8. On considering all the above facts, we are of the view that the sentence to be undergone by the applicants should be suspended till final disposal of the appeal. The sentence is accordingly suspended.

9. Consequently, the applicants are to be released on bail, on furnishing a bond of ₹30,000/- each, with one surety of like amount to the satisfaction of the learned Trial Court.

10. Any observations or findings made in this order shall not be construed to be the final findings or observations made at the time of hearing the appeal.

11. The IA is accordingly allowed and disposed of.

JUDGE JUDGE Comparing Assistant