Utpal Bezbaruah vs The State Of Assam Anr Anr
2022 Latest Caselaw 911 Gua

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GAHC010046532021




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

                                 Case No. : I.A.(Crl.)/163/2021

            UTPAL BEZBARUAH
            S/O- SRI DEBEN BEZBARUAH @ SHEEL, R/O- VILL.- SARIAHTOLI, P.O.
            MILANPUR, P.S. AND DIST.- NALBARI, ASSAM, PIN- 781337.


            VERSUS

            THE STATE OF ASSAM ANR ANR.
            REP. BY THE PUBLIC PROSECUTOR, ASSAM

            2:HARIKANTA BEZBARUAH
             S/O- LATE PRANESWER SHEEL
             R/O- VILL.- KHUDRA- KATLABORKUCHI
             P.O. MILANPUR
             P.S. AND DIST.- NALBARI
            ASSAM
             PIN- 781337

Advocate for the Petitioner   : MR. P P DAS

Advocate for the Respondent : PP, ASSAM




                                     BEFORE
                    HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

                                           ORDER

Date : 15-03-2022

Heard Mr. PP Das, learned counsel for the applicant/appellant as well as Mrs. SH Borah, learned Additional Public Prosecutor appearing for the Page No.# 2/3

State respondent No. 1.

None appears for the respondent No. 2 inspite of service of notice upon him in the connected criminal appeal. Such fact of service of notice has been reflected in the order passed today in the connected criminal appeal.

This interlocutory application has been filed seeking suspension of the sentence imposed upon the applicant/appellant vide the impugned judgment and order, dated 06.02.2021 passed by the learned Special Judge (POCSO), Nalbari in Special (P) Case No. 32/2015, convicting the applicant/appellant under Section 354 of the IPC and sentencing him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 10,000/- with a default clause. There is a further prayer in this application to grant bail to the applicant/appellant pending disposal of the connected Criminal Appeal No. 77/2021.

I have perused the LCR, the evidence of the witnesses as well as the impugned judgment as available in the case diary.

The victim/PW2 has deposed that the applicant/appellant had touched her vagina with his penis while nobody was there in her house. According to her, her elder brother (PW3) saw the victim and the applicant/appellant coming out of the bedroom when he came back to his house. The evidence also reveals that the PW2/victim was shown pornography by the applicant/appellant before the occurrence. The victim did not state that the applicant/appellant had touched her vagina, as aforesaid, in her statement under Section 164 of the Cr.PC. The fact that PW2/elder brother of the victim had noticed the victim as well as the applicant/appellant coming out of the bedroom was also not stated to the Investigating Police Officer in his statement under Section 161 of the Cr.PC. The evidence of PWs 2 and 3, i.e. the victim and her elder brother although found to Page No.# 3/3

be inconsistent in certain respect yet the basic fact of commission of an offence has not been negated by such evidence. However, the material so far available does not disclose a penetrative sexual assault. The applicant/appellant is also not held guilty under the POCSO Act by the learned court below.

Considering the fact that the applicant/appellant has not been punished by the learned court below for an offence under the POCSO Act and taking into account the fact that he is convicted under Section 354 of the IPC and the quantum of punishment and the fact that the applicant/appellant has been in custody for more than a year after conviction was recorded, this Court is of the view that the applicant/appellant has made out a case for grant of bail during the pendency of the connected criminal appeal.

Accordingly, the applicant/appellant, namely, Sri Utpal Bezbaruah, shall be released by the court of the learned Special Judge, under the POCSO Act, Nalbari on his furnishing bail bond of Rs. 20,000/- with a suitable surety of the like amount to his satisfaction and on conditions to be imposed by it.

In view of grant of bail to the applicant/appellant, the sentence imposed upon him, as indicated above, is kept in abeyance till the connected criminal appeal is disposed of.

With the above observations and directions, this interlocutory application stands disposed of.

JUDGE

Comparing Assistant