Page No.# 1/4 vs The State Of Assam And Anr
2021 Latest Caselaw 2243 Gua

                                                                        Page No.# 1/4

GAHC010295732019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : I.A.(Crl.)/416/2020

            SRI PADUM NAYAK @ BIKASH AND ANR
            S/O- SRI BANARSHI NAYAK,
            R/O- ETA BHETA LINE, MELENG TEA ESTATE, P.S.- TIOK, P.O.- MELENG
            T.E., DIST- JORHAT, STATE- ASSAM. PIN- 785700.

            2: SUNIL TANTI @ PIPA
             S/O- LATU TANTI

            R/O- ETA BHETA LINE
            MELENG TEA ESTATE
            P.S.- TIOK
            P.O.- MELENG T.E.
            DIST- JORHAT
            STATE- ASSAM. PIN- 785700

            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP, ASSAM.

            2:GORIAMONI TANTI
             S/O- LATE SARATHI TANTI

             MELENG TEA ESTATE
             P.S.- TIOK
             P.O.- MELENG T.E.
             DIST- JORHAT
             STATE- ASSAM. PIN- 785700

Advocate for the Petitioner   : MR D K MEDHI

Advocate for the Respondent : PP, ASSAM
                                                                                Page No.# 2/4


                                     BEFORE
                      HONOURABLE MR. JUSTICE SUMAN SHYAM
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

Date : 16-09-2021

Suman Shyam, J

Heard Mr. D.K. Medhi, learned counsel for the applicants. We have also heard Ms.

B. Bhuyan, learned Addl. P.P. Assam appearing for the State/ respondent No. 1. None has

appeared for the informant.

2. By the judgment and order dated 30-10-2018 passed by the learned Special Judge,

Jorhat in Special Case No. 41/2017, the two applicants herein were convicted under

Section 376D of the IPC for committing rape upon the prosecutrix and sentenced to

undergo rigorous imprisonment for 20 years each and also to pay fine of Rs. 20,000/-

with default stipulation. Since then, they are in jail.

3. Assailing the impugned judgment dated 30-10-2018 passed by the learned trial

court, Crl. Appeal No. 174/2020 has been preferred by the applicants, which is pending

disposal before this Court. The instant I.A. has been filed under Section 389 Cr.P.C. with a

prayer to suspend their jail sentence during the pendency of the appeal and to release

the applicants on bail.

4. Mr. Medhi has primarily relied upon the discrepancy in the statement of the

prosecutrix recorded under Section 164 Cr.P.C. and in her deposition before the court to

submit that the version of the prosecutrix is not credible. Under the circumstances, the Page No.# 3/4

learned trial court was not justified in convicting the appellants solely on the basis of the

testimony of the prosecutrix. He also submits that the medical evidence available on

record does not support the prosecution case. Hence, the applicants be allowed to go on

bail.

5. Ms. Bhuyan, learned Addl. P.P; on the other hand, submits that there is no

contradiction in the deposition of PW-1, i.e. the prosecutrix and the defence side has also

not proved such contradiction in accordance with law. Ms. Bhuyan further submits that

there is a possibility of typographical error in mentioning the time of occurrence. Having

regard to the bulk of evidence available on record, mere discrepancy as regards, the time

of occurrence cannot be a ground to set aside the conviction of the applicants. As such,

the present is not a fit case for granting bail.

6. After perusing the materials available on record, we are of the view that the

arguments advanced by the applicants' counsel are on merit and can be considered only

at the stage of final hearing of the appeal. For now, we prima facie do not find any

ground to draw presumption of innocence of the applicants by ignoring the finding of

facts recorded by the learned Special Judge based on evidence brought on record.

7. Consequently, the prayer made in this I.A. stands rejected.

8. However, taking note of the request made by Mr. Medhi seeking expeditious

disposal of the appeal and considering the fact that the applicants are in jail since the

date of judgment, we are inclined to allow out of turn hearing of the appeal.

9. Since the LCR has been received, office to expedite preparation of paper book and Page No.# 4/4

make an endeavour to complete the same within 04 weeks from today. The applicants'

counsel may also render necessary assistance in that regard.

The connected appeal be listed immediately after the paper book is made ready, for

fixing a date of hearing.

With the above observation, this I.A. stands disposed of.

                            JUDGE                    JUDGE
GS




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