GAHC010250902023

2025:GAU-

AS:12958-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./408/2023 JINNAT ALI S/O MD. HAZRAT ALI @ HAZRAT ALI, VILL.- BECHIMARI, P.S.- DALGAON, DIST.- DARRANG, ASSAM.

VERSUS THE STATE OF ASSAM AND ANR.

TO BE REP. BY THE P.P., ASSAM.

2:SAMAR ALI S/O LATE SIRAJ UDDIN VILL.- BARUAJHARI P.S.- DALGAON DIST.- DARRANG PIN- 784514 ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY, MS R DEKA,MR. I U CHOWDHURY,MR. M A CHOUDHURY,MR. A AHMED Advocate for the Respondent : PP, ASSAM, B BARMAN (R-2),MR. H ALI(R-2)

For the Appellant : Mr. A. Ahmed, Advocate For the Respondent No.1 : Ms. B. Bhuyan, Sr. Adv. & APP, Assam For the Respondent No.2 : Mr. H. Ali, Advocate - B E F O R E -

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE ANJAN MONI KALITA Date of hearing : 15/09/2025 Date of Judgment : 19/09/2025 JUDGEMENT AND ORDER (CAV)

(Michael Zothankhuma, J)

1. Heard Mr. A. Ahmed, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned senior counsel and APP, Assam, assisted by Ms. R. Das, appearing for the State. Mr. H. Ali, learned counsel appeared for the respondent no. 2.

2. The appellant has put to challenge the judgment dated 11/10/2023 passed by the Special Judge, Darrang, Mangaldoi, in Special (POCSO) Case No. 82/2019, by which the appellant has been convicted under Section 376 of the IPC, Section 6 of the POCSO Act and Section 448 of the IPC. The appellant was sentenced to undergo rigorous imprisonment for a term of 20 years with a fine of Rs. 5,000/-, in default, simple imprisonment for 1(one) month under Section 6 of the POCSO Act. He was also sentenced to undergo rigorous imprisonment for 6 months for the offence under Section 448 of the IPC.

3. The prosecution case, in brief, is that an FIR dated 21/09/2019 was submitted by the informant/PW-1 stating that the appellant had raped the informant’s physically challenged daughter, who resultantly carried a 4 (four) month old pregnancy. Pursuant to the FIR dated 21/09/2019, Dalgaon PS Case No. 537/2019 under section 448/376 IPC was registered. After investigation of the case had been completed, a charge sheet was submitted against the appellant, as a prima facie case under section 448/376 IPC and section 6 of the POCSO Act had been found against him. The learned trial Court thereafter framed charges under section 448 and 376 IPC along with section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried.

4. The learned trial Court thereafter examined 9 Prosecution Witnesses and after examining the appellant under section 313 Cr.P.C., the learned trial Court came to a finding that the appellant had committed the offence under section 448/376 IPC and section 6 of the POCSO Act. However, in view of section 42 of the POCSO Act, 2012, where an alternative punishment which is greater in degree can be given, the learned Trial Court sentenced the appellant under section 6 of the PCOSO Act. Being aggrieved with his conviction and sentence, the appellant has approached this Court by way of the present appeal.

5. The appellant has also filed an application under section 389 Cr.P.C. seeking suspension of the sentence passed against the appellant and for his release on bail. The appellant has by way of the application under section 389 Cr.P.C. also raised a plea of juvenility, which plea had not been taken/raised by the appellant before the learned trial Court.

6. This Court having regard to the plea of juvenility raised by the appellant, had directed the learned Special Court to make an enquiry, to ascertain the age of the applicant/appellant vide order dated 08/04/2025. This Court vide the said order dated 08/04/2025 had also given a direction to the learned Session Court to go for an Ossification Test, for ascertaining the age of the applicant/appellant. Pursuant to the order dated 08/04/2025, the learned trial Court had opened a supplementary case record for ascertaining