Pankaj Hazarika v. The State of Assam and Anr

ORDER

16.03.2023 Heard Mr. P. Kataki, learned Counsel for the applicant. Also heard Mr. P. Borthakur, learned Public Prosecutor for the State respondent No. 1 and Mr. D. Chakraborty representing for the respondent No.2/victim.

This is an appeal filed under Section 389 (2) of the Code of Criminal Procedure, 1973 praying for suspension of sentence by challenging the judgment and order dated 23.04.2020, passed by the learned Special Judge, Sivsagar, in Special POCSO Case No.27/2018, convicting the applicant under Section 4 of the POCSO Act, and sentencing him to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 10,000/-(rupees ten thousand) in default to undergo further R/I for a period of 6(six) months.

It is submitted by the learned counsel for the applicant, Mr. P. Kataki, that the accused/applicant is innocent and he has not committed any offence as alleged in the First Information Report(FIR). The learned Special Judge has passed the order of conviction without considering the fact that the prosecution has adduced cogent evidence and also not decided the fact as whether the victim was a minor at the time of the incident. Thus, the learned Trial Court. Further, the learned counsel for the applicant has submitted that the FIR was lodged only due to some misunderstanding. Thus, he accordingly prays for suspension of sentence and he is ready to co-operate with the further investigation of his case, as and when required. Page No.# 3/4

In this regard, Mr. P. Borthakur, learned Public Prosecutor has submitted that in the instant case although the case of the prosecutrix is not supported by the other evidence and circumstances of the case. Moreover, the case in hand being under the POCSO Act, the accused/applicant has also a duty to rebut the legal presumption under Section 29 of the POCSO Act. And accordingly, raised objection in the prayer made by the applicant.

On the other hand Mr. D. Chakraborty, learned counsel for the respondent No.2/victim has raised no objections on the ground of granting bail to the accused applicant till disposal of the Criminal Appeal being No.Crl.A./120/2021.

After hearing the submissions made by the learned Advocates of both sides, as well as upon seeing the applicant was granted bail and he faced the trial without any default. In the meantime, it is also seen that the respondent No.2, her engaged counsel has not raised any objections on the prayer made by the applicant till disposal of the criminal appeal. So considering the entire submissions made by the parties as well as considering the conduct of the accused/applicant, I find it appropriate to grant the bail to the applicant at this stage. Accordingly, it is provided that the accused/applicant, namely Pankaj Hazarika be enlarged on bail on his executing a bond of Rs. 20,000/- (Rupees twenty thousand) only with one surety of like amount to the satisfaction of the learned Special Judge, Sivsagar, till disposal of the present criminal appeal.

Page No.# 4/4 With above observations, this interlocutory applications stands dispose of. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010089842021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Crl.)/273/2021o PANKAJoHAZARIKA S/OoSRIoRAMNATHoHAZARIKA oR/OoVILL-o1oNO.oUDAIPUR oUNDERoDEMOWoPOLICEoSTATION oDIST-SIVASAGAR oASSAM oVERSUS THEoSTATEoOFoASSAMoANDoANR. REPRESENTEDoBYoTHEoPUBLICoPROSECUTOR oASSAM 2:MSoJANMONIoDAS D/OoSRIoHARESWARoDAS oR/OoVILLoNO.o1oUDAIPUR oUNDERoDEMOWoPOLICEoSTATION oDIST-SIVASAGAR oASSAM oPIN-785697 o------------ oAdvocateoforo:oMRoPoKATAKI Advocateoforo:oPP oASSAMoappearingoforoTHEoSTATEoOFoASSAMoANDoANR. ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/4 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA