Bishudim Kisku vs The State Of Assam And Anr
2022 Latest Caselaw 2796 Gua

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GAHC010090242021




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

                                 Case No. : I.A.(Crl.)/270/2021

            BISHUDIM KISKU
            S/O. SRI SRIMAT KISKU, R/O. VILL. KEMBOLPUR JLY. E.M. P.S.
            GOSSAIGAON, DIST. KOKRAJHAR, ASSAM



            VERSUS

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

            2:RUBIN TUDU
             S/O. LATE SUTAR TUDU
            VILL. CHANDRAPUR
             P.S. GOSSIGAON
             DIST. KOKRAJHAR
            ASSA

Advocate for the Petitioner   : MR. A LAL

Advocate for the Respondent : PP, ASSAM




             Linked Case : Crl.A./81/2021

            BISHUDIM KISKU
            S/O- SRI SRIMAT KISKU
            VILL.- KEMBOLPUR JLY. E.M. POLICE STATION GOSSAIGAON
            PIN- 783360
            DIST.- KOKRAJHAR
            ASSAM.
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           VERSUS

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

          2:RUBIN TUDU
          S/O- LATE SUTAR TUDU
          VILL.- CHANDRAPUR
           P.S. GOSSIGAON
           PIN- 783360
           DIST.- KOKRAJHAR
          ASSAM.
           ------------
          Advocate for : MR. A LAL
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                BEFORE
                  HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                    ORDER

06.08.2022

Heard Mr. A. Lal, learned counsel for the appellant/applicant. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor, Gauhati High Court.

By this interlocutory application u/s 389 Cr.P.C. the appellant/applicant who is convicted vide the impugned Judgment and Order, dated 22.01.2021, passed in Special Case No. 20/2017 by the learned Special Judge, Kokrajhar and sentenced to undergo R.I. for 10(ten) years and payment of fine of Rs.1,00,000/-, in default, to undergo further imprisonment of 2 years, has prayed for suspension of sentence and to allow him to go on bail.

The case record as called for in the connected Crl. Appl. No. 81/2021 is Page No.# 3/4

placed before the Court.

Mr. A. Lal, learned counsel appearing for the appellant/applicant submits that the convicted applicant has been in jail serving out the sentence for last 549 days on misappropriation of evidence of both sides. Mr. Lal further submits that the prosecution story alleged of commission of rape of two minor girls and on the other hand, the most material witness No.9 cited in the charge-sheet was deliberately kept out of the witness box. It is also noticed, Mr. Lal submits, the learned trial court completely ignored the evidence of DW-1, who rendered evidence in detail establishing innocence of the appellant/applicant. Further, Mr. Lal submits that the learned trial court also overlooked the glaring material contradictions on evidence. Therefore, Mr. Lal submits that till the connected appeal is disposed of, the sentence may be suspended and the applicant may be directed to be released on bail.

Opposing the application, Ms. S. H. Bora, learned Additional Public Prosecutor, submits that on a cursory reading of the evidence of both sides, it is abundantly clear that the accused appellant/applicant committed the alleged offences as held by the learned trial court assigning sufficient satisfactory reasons. Ms. Borah, therefore, emphatically submits that the convicted accused appellant/applicant herein may not be granted bail merely on the ground of long detention.

The prosecution case in brief is that on 02.09.2016, the father of the victim lodged an FIR at Grahampur Police Outpost alleging that his daughter/the victim has reported him that while she was studying in JLY EM School, the accused appellant/applicant committed rape on her and also threatened her not to disclose the matter to anyone.

Page No.# 4/4

On scrutiny of the evidence of both sides, it transpires that the case involves commission of a serious offence against two minor girls by the appellant/applicant, who was their teacher during night hours.

It is noticed that the defence has not elicited any fact from the prosecution witnesses, which indicates that due to enmity a false case was filed against the accused appellant/applicant.

The above prima facie findings are, of course, subject to a detail hearing of both sides and indepth scrutiny of the evidence on record.

Having considered the nature of offence the appellant/applicant allegedly committed and the manner in which the same was allegedly committed, this Court is of the opinion that the suspension of sentence cannot be allowed and the appellant/applicant cannot be granted the liberty of bail.

Accordingly, the Interlocutory Application stands rejected.

As LCR is received, Registry will list the connected Criminal Appeal for hearing on its own turn.

This disposes of the Interlocutory Application.

JUDGE

Comparing Assistant