Gauhati High Court
Md. Baharul Islam vs The State Of Assam And Anr on 17 December, 2021
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GAHC010014492021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/64/2021
MD. BAHARUL ISLAM
S/O- MD. ISHAHAQUE ALI
VILL.- BARNAGAR BANEKUCHI
MAUZA- NATUN DEHAR
P.S. AND DIST.- NALBARI
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PUBLIC PROSECUTOR
ASSAM
2:MISS HUNUFA BEGUM
D/O- MD. HAMID ALI
VILL.- BARNAGAR
MAUZA- NATUN DEHAR
P.S. AND DIST.- NALBARI
ASSAM.
------------
Advocate for : MR. J I BORBHUIYA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
17.12.2021
Heard Mr. J. I. Borbhuyan, learned counsel for the applicant/appellant and
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Mr. P. Borthakur, learned Addl. Public Prosecutor, Assam as well as Mrs. B.
Hazarika, learned counsel for the respondent No. 2/informant.
By this interlocutory application under Section 389 Cr.P.C., the
applicant/appellant, who is convicted and sentenced vide the impugned
Judgment and Order, dated 27.11.2020, passed in Sessions Case No.
165/2016 by the learned Sessions Judge, Nalbari, has prayed for suspension
of sentence and to allow him to go on bail.
It is seen that vide the impugned Judgment and Order, dated
27.11.2020, passed in Sessions Case No. 165/2016, the learned Sessions
Judge, Nalbari has convicted the appellant/applicant u/s 376/420 of the IPC
and sentenced to undergo rigorous imprisonment for 10 years and to pay fine
of Rs. 25,000/-, in default, to undergo simple imprisonment for 6 months for
committing offence u/s 376 IPC and further to undergo rigorous imprisonment
for 3 years and to pay fine of Rs. 5,000/- only, in default, to undergo simple
imprisonment for 1 month u/s 420 of the IPC.
The prosecution case in a nutshell is that for about 2 ½ years prior to
filing of the complaint, dated 29.09.2015, the appellant promising to marry,
committed sexual intercourse with the victim, an unmarried woman, aged about
27 years, on several occasions. As a result, the victim conceived thrice, which
the appellant aborted by administering medicines and then he declined to marry
her despite his assurance in a village meeting. The case was registered as C.R.
Case No. 551C/2015 in the Court of learned Chief Judicial Magistrate, Nalbari
and being committed registered as Sessions Case No. 165/2016 in the Court of
learned Sessions Judge, Nalbari. The learned Sessions Judge, Nalbari framed
charges under Sections 420/376/323 of the IPC against the applicant and after
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trial, the applicant has been convicted and sentenced as stated above.
Mr. J. I. Borbhuyan, learned counsel appearing for the applicant,
submits that the learned Trial Court has convicted the applicant on wrong
appreciation of evidence on record inasmuch as the applicant out and out
rejected the allegations and it was not he but the guardians of both parties on
intervention of the villagers agreed to solemnise his marriage with the alleged
victim. Further, the complainant did not examine any doctor to prove her
pregnancy and abortion as well as any injury on her person. Mr. Borbhuiyan also
submits that the victim and the applicant are major and, as such, though not
admitted even if the allegation of sexual intercourse is presumed to be true, the
same was consensual which did not amount to any offence.
Opposing the application, Mr. P. Borthakur, learned Addl. Public
Prosecutor, submits that the evidence reveals that the applicant making false
promise of marriage indulged in sexual relationship with the victim girl and
despite assurance given in a village mel to marry her within a period of six
months, on expiry of the aforesaid period, he ran away from his obligation to
marry her.
Mr. B. Hazarika, learned counsel for the informant/respondent No. 2
reiterated the submission made by the learned Addl. Public Prosecutor.
I have given due consideration to the above submissions made by both
sides and perused the records including the impugned judgment and order.
The applicant/appellant has been in judicial custody since 27.11.2020.
Subject to final outcome in a detailed hearing in the connected appeal
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on merits, prima facie it transpires that by false promise of marriage, the
applicant had sexual intercourse with the prosecutrix on several occasions to the
extent of alleged conceiving on several occasions and then he allegedly
terminated her pregnancy thrice by administering some medicines. The
prosecutrix is a major woman and the applicant continued physical relationship
with her for a prolonged period of about 2 ½ years without any resistance.
Therefore, the sentence passed against the applicant, vide the
impugned judgment and order is herby suspended till disposal of the connected
Criminal Appeal No. 29/2021. The applicant is directed to be released on bail of
Rs. 40,000/- with one surety of like amount to the satisfaction of the learned
Sessions Judge, Nalbari.
With the above direction, I.A. stands disposed of.
JUDGE
Comparing Assistant
