Omar Ali vs The State Of Assam And Anr
2022 Latest Caselaw 2690 Gua

                                                                      Page No.# 1/4

GAHC010014142021




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

                                  Case No. : I.A.(Crl.)/55/2021

            OMAR ALI
            S/O- LATE HASEN ALI, VILL.- BAMUNITILA, P.S. AND DIST.-
            BONGAIGAON, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE P.P., ASSAM.

            2:RUHUL AMIN
             S/O- LATE AFJAL SEIKH
            VILL.- BAMUNITILA
             P.O. DHANTOLA
             P.S. AND DIST.- BONGAIGAON
            ASSAM
             PIN- 783372

Advocate for the Petitioner   : MR. N UDDIN

Advocate for the Respondent : PP, ASSAM




             Linked Case : Crl.A./25/2021

            OMAR ALI
            S/O- LATE HASEN ALI
            VILL.- BAMUNITILA
            P.S. AND DIST.- BONGAIGAON
            ASSAM.
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           VERSUS

          THE STATE OF ASSAM AND ANR.
          REP. BY THE P.P.
          ASSAM.

          2:RUHUL AMIN
          S/O- LATE AFJAL SEIKH
          VILL.- BAMUNITILA
           P.O. DHANTOLA
           P.S. AND DIST.- BONGAIGAON
          ASSAM
           PIN- 783372.
           ------------
          Advocate for : MR. N UDDIN
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                BEFORE
                  HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                    ORDER

03.08.2022

Heard Mr. N. Uddin, learned counsel for the applicant/appellant as well as Mr. P.S. Lahkar, learned Addl. Public Prosecutor, Assam appearing for the State respondent.

By this interlocutory application under Section 389 Cr.P.C., the applicant/appellant, who is convicted vide the impugned Judgment and Order, dated 27.11.2020, passed by the learned Special Judge, Bongaigaon in Special (P) Case No. 15(BGN)/2018 and sentenced to undergo R.I. for 5(five) years and to pay fine of Rs.2,000/-, in default, to undergo S.I. for another 1(one) month under Section 10 of the POCSO Act, has prayed for suspension of sentence and to allow him to go on bail.

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Mr. N. Uddin, learned counsel for the applicant/appellant submits that the ingredients of the offence under Section 10 of the POCSO Act have not been established in the case, but, on erroneous appreciation of the evidence on record and undermining the vital contradiction on evidence, the learned trial Court has convicted the applicant. Mr. Uddin emphatically submits that the learned trial Court has mainly relied on the evidence of P.W. 2, the victim minor girl ignoring the hearsay evidence of the remaining prosecution witnesses.

Mr. P.S. Lahkar, learned Addl. Public Prosecutor submits that the victim is aged about 7-8 years and she, in her evidence, implicated the applicant with the alleged offence. Mr. Lahkar further submits that although the medical evidence does not support the prosecution case, it is a settled proposition of law that the evidence of the ocular testimony overrides such medical testimony and as such, in view of the positive evidence of the minor victim girl has to be relied on. Therefore, Mr. Lahkar submits that as the case record has already been received and the appeal is ready for hearing, in such a juncture, the sentence passed against the applicant/appellant may not be suspended and he may not be granted the liberty of bail in such a heinous proved crime.

It is noticed that the applicant/appellant has been in judicial custody for about 1 year 10 months in connection with the case.

On scrutiny of the pros and cons of the evidence of P.W. 2, the victim minor girl, aged about 7 years along with her statement recorded under Section 164 Cr.P.C. vide Ext.-3 and the other evidence of the prosecution witnesses and further, without recording any finding on the applicability of any of the penal provisions provided under the POCSO Act, this Court is of the considered opinion that by suspending the sentence passed against the applicant/appellant, he may be allowed to go on bail.

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Accordingly, it is provided that the operation of the sentence passed in Special (P) Case No. 15(BGN)/2018 vide the impugned Judgment and Order, dated 27.11.2020, by the learned Special Judge, Bongaigaon shall remain stayed till disposal of the connected Criminal Appeal No. 25/2021. The applicant/appellant is directed to be released on bail of Rs.30,000/- (Rupees Thirty Thousand) with 2(two) sureties of like amount to the satisfaction of the learned Special Judge, Bongaigaon.

With the above directions, the Interlocutory Application stands disposed of.

JUDGE

Comparing Assistant