Gauhati High Court
Esahaque Ali vs The State Of Assam And Anr on 10 August, 2022
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GAHC010113582021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
I.A.(Crl.)/329/2021
ESAHAQUE ALI
S/O- LATE HAKIM ALI
R/O- VILL.- BARAMARA
P.S. AND DIST.- BARPETA
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PUBLIC PROSECUTOR
ASSAM
2:AFAZ MIAH
S/O- LATE SULTAN MIAH
R/O- VILL.- BARAMARA
P.S. AND DIST.- BARPETA
ASSAM
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Advocate for : MR. J AHMED
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 10.08.2022
Heard Mr. J Ahmed, learned Counsel for the applicant and Mr. RJ Baruah, learned Addl.Public
Prosecutor for the State opposite party.
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By this interlocutory application under Section 389 (1) of CrPC, the applicant has prayed for
suspension of the sentence vide Judgment and order dated 20.03.2021 passed by the learned
Special Judge ( POCSO Act), Barpeta in Special (POCSO) Case No. 29/2018 whereby the
applicant has been convicted and sentenced to undergo rigorous imprisonment for 7 years
and to pay fine of Rs.10,000/- only in default to undergo SI for 6 months under Section 4 of
the POCSO Act and to undergo RI for one year in default to undergo SI for one month and to
allow him to go on bail.
The case record as called for in the connected Criminal Appeal No. 138/2021 is placed before
the Court.
Mr. J Ahmed, learned counsel for the appellant/applicant, submits that the applicant
has been languishing in jail for about 01 (one) year 08(eight) months despite being innocent.
Mr. Ahmed submits that the applicant is more than 73 years old and he is sick. Further, Mr.
Ahmed submits that the learned trial court convicted him relying on the evidence of PWs 1, 2,
3, 4, 5 and 10 overlooking the evidence of PWs 7, 8 and 9 and also the fact of the boundary
dispute, which led to filing of the case against him.
` Opposing the application, Mr. RJ Baruah, learned Additional Public Prosecutor, submits
that the evidence shows that the victim girl is aged 05 to 07 years and she in her statements
under Sections 161 and 164 CrPC has implicated the applicant. Therefore, Mr. Boruah submits
that as the case record is received, the matter be directed to be listed for hearing.
The prosecution case, in a nutshell, is that on 08.08.2017, at around 6 pm, taking
advantage of the absence of family members of the informant, the accused petitioner
trespassed into his house and committed rape on his five years old minor daughter.
On perusal of the evidence of PWs 1, 2, 3, 4, 5 and 6 along with the findings of PW-8,
the Medical Officer, it prima facie appears that it cannot be said that the applicant was
innocent, subject, of course, to a detailed final hearing on the connected appeal.
Therefore, this Court is of the opinion that despite the appellant/ applicant has passed
the aforesaid detention period, the sentence passed against him cannot be suspended and he
cannot be released on bail as prayed.
Accordingly, the interlocutory application stands rejected.
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This disposes of the interlocutory applicant stands disposed.
JUDGE
Comparing Assistant
