Gauhati High Court
Sirajul Hoque vs The State Of Assam And Anr on 7 December, 2022
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GAHC010093112022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/260/2022
SIRAJUL HOQUE
S/O MOKBUL HOQUE, RESIDENT OF VILLAGE LAKHIMARI PART II, PO
LAKHIMARI, PS GOLAKGANJ, DHUBRI, ASSAM 783334
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP, ASSAM
2:SMTI MADHU BIBI
W/O NAJRUL SK
RESIDENT OF VILLAGE LAKHIMARI PART II
PO LAKHIMARI
PS GOLAKGANJ
DHUBRI
ASSAM 78333
Advocate for the Petitioner : MR. A A R KARIM
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 07-12-2022
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Suman Shyam, J
Heard Mr. A.A.R. Karim, learned counsel appearing for the applicant. Also heard Ms.
S. Jahan, learned Addl. P.P. Assam appearing on behalf of the State.
By the judgment and order dated 18-04-2022 passed by the learned Addl. Sessions
Judge, Dhubri in Sessions Case No. 101/2018 the applicant herein was convicted under
sections 417/ 376 of the IPC. He was sentenced to undergo rigorous imprisonment for life
for committing the offence punishable under section 376 IPC and to pay fine of Rs.
15,000/- with default stipulation. Insofar as the offence committed under section 417 IPC
is concerned, the applicant was sentenced to undergo rigorous imprisonment for 01 year
and also to pay fine of Rs. 1,000/-, in default, to undergo simple imprisonment for 01
month. Since then, the applicant is in jail. Aggrieved by the impugned judgment, the
applicant has preferred Crl. Appeal No. 104/2022. The appeal has been admitted and the
same is pending disposal before this Court.
By filing the instant application under section 389(1) Cr.P.C. the applicant has
approached this Court with a prayer to suspend his sentence and also to release him on
bail during the pendency of the appeal.
By referring to the impugned judgment, Mr. Karim submits that there is no
ingredient of any of the offences under section 417/ 376 IPC in this case and therefore,
the conviction of the applicant is clearly not sustainable in the eye of law. The learned
counsel for the applicant further submits that there is a strong possibility that the
applicant might be acquitted during the final hearing of the appeal. Hence, the present is
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a fit case for releasing him on bail.
Ms. S. Jahan, learned Addl. P.P. Assam, on the other hand, submits that the victim
in this case is "deaf & dumb" and therefore, the trial court had treated it as a special case
by taking note of the victim's condition. However, whether the evidence on record is
sufficient to sustain the charge brought under sections 417/ 376 of IPC is a matter which
will require deeper scrutiny.
We have considered the submissions of learned counsel for both the sides and
have also gone through the materials available on record. The basic case of the
prosecution is that the applicant had made false promise of marriage to the victim ('X')
and on such false promise, he had physical relationship with her. When the victim had
become pregnant, the applicant refused to marry her and fled away. After about 5/6
months, the pregnancy of the victim came to light and thereafter, ejahar was lodged. The
victim ultimately gave birth to a child who did not survive for long.
It appears from the materials on record that the age of the victim was 23 years at
the time of the occurrence and she had evidently remained silent about the incident for
more than 5 to 6 months. In her deposition before the Court, which was recorded with
the help of an interpretor, the victim had also stated that she is ready to marry the
applicant, if he returns.
From the materials on record, it is apparent that there was substantial delay in
lodging the FIR and it prima facie appears that the physical relationship between the
applicant and the victim was consensual. There is neither any allegation nor any finding
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recorded by the learned trial court as regards any initial deception by the applicant insofar
as the claim of false promise to marry is concerned. Nothing has also been brought to our
notice to indicate that the law generally makes a distinction between a normal person and
a person having some form of physical disability insofar as the offence under section 376
IPC is concerned. Moreover, we find that the victim was not only capable of
understanding the implication of her acts and deeds but was also in a position to
communicate her feelings to others.
Under the circumstances, we are of the view that whether the materials available
on record are sufficient to sustain the conviction of the applicant in the facts and
circumstances of the case is a matter that would require deeper scrutiny which will be
possible only at the time of final hearing of the appeal. However, for the reasons stated
hereinabove, we are of the opinion that the applicant has made out a strong prima facie
case for suspension of sentence and also to allow him to go on bail during the pendency
of the appeal.
We, accordingly, direct that the applicant, viz. Sri Sirajul Hoque be released on bail
on furnishing a bond of Rs. 30,000/- with one local surety of like amount to the
satisfaction of the learned trial court.
The learned trial court will also be a liberty to impose any other additional
condition(s) upon the applicant for his release on bail, if so desired.
We make it clear that the observations made hereinbefore are for the limited
purpose of deciding the I.A. and the same shall not have any bearing at the time of final
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hearing of the appeal.
I.A. stands disposed of.
JUDGE JUDGE
GS
Comparing Assistant
