The failure of the prosecution to highlight crucial evidences and legal provisions during the bail hearing can lead to a miscarriage of justice and may justify the cancellation of bail.

JUDGMENT :

The Court proceedings have been conducted through Video-Conference.

2. I have heard Mr. S.B. Rahman, learned counsel for the applicant/ complainant. Also heard Mr. N.J. Dutta, learned Additional Public Prosecutor, Assam, appearing for the respondent No.1 and Mr. H.R.A. Choudhury, learned senior counsel, appearing for the respondent No.2/accused.

3. Ahammad Ali Mandal, the complainant of Goalpara Police Station Case No.583/2019 under Section 376 IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”), has filed this application for cancellation of pre-arrest bail granted to Mujahidur Rahman Mondal by virtue of order dated 06.01.2020 while dealing with A.B. No.4173/2019 (Mujahidur Rahman Mondal -Vs- The State of Assam). I have taken judicial notice of the fact that the complainant or the victim were not impleaded as respondents by the accused when Anticipatory Bail Application (supra) was filed.

4. Before a reference to the order granting bail is made, I would like to make a reference to the gist of the accusations, and the evidences collected in the course of investigation, which are available with the Case Diary, in context of which the application for anticipatory bail under Section 438 Cr.PC was required to be considered by the Court.

5. Ahammad Ali Mandal vide written complaint accused Mujahidur Rahman Mondal while saying that on 21.09.2019 at about 12 Noon when his minor daughter “Ms. F” aged years was sleeping in her house, the accused entered the house silently, gagged her mouth and committed rape forcibly, against her will and fled the place of occurrence.

6. It appears that in the course of investigation, statement of the victim was recorded under Section 164 Cr.PC, as is ordinarily done in cases of rape. The statement is available on the investigation file/with the Case Diary, which was produced before the bail Court.

In the statement of the victim recorded under Section 164 Cr.PC dated 23.09.2019, it was stated by the victim that she is a student of Mahatma Gandhi School. On last Saturday, after going home from the school, the victim was sleeping after having meal. The victim sensed that someone was there in the bed room. The victim saw Mujahidur Rahman Mondal in the room, who gagged her. The accused put pressure on her chest and forcibly committed rape. The victim could not raise her voice. The sound produced in the room cannot be heard in the other room. Mujahidur Rahman Mondal threatened the victim that she should not disclose the matter to anybody. Being frightened, the victim kept lying in the room. When the elder sister of the victim came to the room, the incident was narrated to her. The sister told the victim that she would inform the parents about the incident. After a while she left. The victim got depressed and cut her hand with a blade. After a while, the sister came back to the room and saw that the victim had cut her hand with a blade and blood was oozing. Her elder sister informed everybody about it, as also the elder brother. Victim was taken to the hospital and the case was lodged.

7. Since the complainant claimed that the victim was a minor, in the course of investigation, certificate issued by Board of Secondary Education, Assam was taken, which reflects the date of birth of the victim as 05.02.2004.

Birth Certificate issued by the Department of Health Services, Government of Assam under Sections 12/17 of the Registration of Births and Deaths Act, 1969 and Rules 8/13 of the Assam Registration of Births and Deaths Rules, 1999 was also taken by the investigating agency, which also reflects the date of birth of the victim as 05.02.2004.

By virtue of the 2(two) documents, the age of the victim would be 15(fifteen) years approximately on the date of the incident.

8. It appears that the accused filed A.B. No.4173/2019. Case Diary was called for, and on perusal thereof, pre-arrest bail under Section 438 Cr.PC was granted vide the order dated 06.01.2020