Gauhati High Court
Zakir Hussain @ Jahir Hussain vs The State Of Assam And Anr on 9 March, 2021
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GAHC010233842019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/835/2019
in
Criminal Appeal No.382 of 2019
ZAKIR HUSSAIN @ JAHIR HUSSAIN
S/O- LATE NAUSAD ALI, R/O- VILL.- JULAGAON, JALUGUTI, P.O.
JALUGUTI, P.S. MIKIRBHETA, DIST.- MORIGAON, ASSAM- 782104.
VERSUS
THE STATE OF ASSAM AND ANR
THROUGH THE P.P., ASSAM.
2:MS. JERIFA WAHEED (INFORMANT)
D/O- ZAHIR HUSSAIN
VILL.- JALUGUTI
P.S. MIKIRBHETA
DIST.- MORIGAON
ASSAM- 782105
Advocate for the Petitioner : MR. A ALAM
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MR. JUSTICE HITESH KUMAR SARMA
09-03-2021
Heard Ms. R. Choudhury, learned counsel appearing on behalf of learned conducting
counsel Mr. A. Alam, for the applicant/appellant. Also heard Ms. S.H. Borah, learned Additional
Public Prosecutor, Assam, appearing for the State Respondent No.1. The Respondent
No.2/informant is represented by Mr. A.H.M.R. Choudhury, learned counsel.
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By this interlocutory application, under Section 389 of the Code of Criminal Procedure,
1973, the petitioner has sought for suspension of the sentence passed vide judgment dated
3.9.2019 in POCSO Case No.57/2018 by the learned Special Judge, Morigaon, Assam. It has
further been prayed vide this instant application that the petitioner be allowed to go on bail.
I have perused the connected criminal appeal and the impugned judgment. It appears
that a formal charge against the accused petitioner had been framed under Sections 376/511
of the Indian Penal Code read with Section 10/12 of the POCSO Act. After conclusion of the
trial, the applicant/ appellant was convicted and sentenced to rigorous imprisonment for 5
(five) years for offence punishable under Section 376/511 of the Indian Penal Code; rigorous
imprisonment for 5(five) years and to pay a fine of Rs.5,000/-, with a default clause for
offence punishable under Section 10 of the POCSO Act; and also rigorous imprisonment for
3(three) years and to pay a fine of Rs.5,000/-, with a default clause for offence punishable
under Section 12 of the POCSO Act.
Ms. Choudhury, referring to the provisions contained in Section 42 of the POCSO Act,
has submitted that the punishment could not have been imposed under all the aforesaid
provisions of law in view of the mandate of Section 42 of the aforesaid Act. On the other hand,
she has referred to the deposition of P.W.7 i.e. the investigating police officer, which shows
that the date of birth of the victim is 20.02.1997. The victim also in her evidence, recorded on
25.01.2019, stated her age to be 21 years. The date of occurrence in the instant case is
22.06.2018.
That being so, apparently the victim was a major on the date of alleged occurrence.
Therefore, prima facie, the provisions of the POCSO Act is not applicable in the instant case.
This Court has also considered the fact that the accused petitioner has been in custody since
23.06.2018 and, as such, for more than 2 years as of now.
On consideration of the entire materials, as available in the record of the learned Trial
Court including the evidence of the witnesses, this Court is of the view that the sentence
imposed on the petitioner be suspended till the disposal of the connected Criminal Appeal
No.382 of 2019 and the petitioner be granted bail.
Accordingly, the punishment imposed vide the aforesaid judgment dated 3.9.2019, in
POCSO Case No.57/2018, is stayed till disposal of the connected criminal appeal and the
learned Special Judge, Morigaon shall release the applicant/appellant on bail on his furnishing
bail bond of Rs.20,000/- with a suitable surety of the like amount to his satisfaction on
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conditions to be imposed by him.
The interlocutory application, accordingly, stands disposed of.
JUDGE
Comparing Assistant
