Gauhati High Court
Billal Hussain vs The State Of Assam And Anr on 8 February, 2023
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GAHC010221902022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/684/2022
BILLAL HUSSAIN
S/O SAHADAT ALI, VILLAGE TINTILA,PS AND DIST KOKRAJHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:BADSHA MANDAL
S/O LATE IMAN ALI MANDAL
VILLAGE TINTILA
PS AND DIST KOKRAJHAR
ASSA
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./288/2022
BILLAL HUSSAIN
S/O SAHADAT ALI
VILLAGE TINTILA
PS AND DIST KOKRAJHAR
ASSAM.
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VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PP ASSAM
2:BADSHA MANDAL
S/O LATE IMAN ALI MANDAL
VILLAGE TINTILA
PS AND DIST KOKRAJHAR
ASSAM
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 08-02-2023
(Malasri Nandi, J)
Heard Mr. A. Ahmed, learned counsel for the applicant. Also heard Ms. S. Jahan,
learned Additional Public Prosecutor appearing for the State.
2. The applicant has preferred an application under Section 389 Cr.P.C., 1973
for suspension of sentence and to release him on bail during pendency of the
appeal against the judgment and order dated 26.09.2022, passed by the
learned Sessions Judge, Kokrajhar in Sessions Case No. 54/2017, whereby the
accused/applicant has been convicted under Section 302 IPC and sentenced him
to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in
default stipulation.
3. The learned counsel for the applicant has contended that this is a case
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based on circumstantial evidence and the accused was not present at home
when the wife of the applicant was found dead in the morning hours. He has
further submitted that it is well settled that unless chain of circumstances is
complete and each link in the chain is proved beyond all reasonable doubt, no
accused can be convicted thereupon. He has also contended that in a case
based on circumstantial evidence, the case against the accused is to be proved
beyond all reasonable doubts without leaving any link which may be compatible
with his innocence. It is also submitted that in a case of this nature, there must
be a chain of circumstances and no conviction can be based on a single
circumstance.
4. The learned counsel for the applicant also argued that the applicant has
been awarded life imprisonment but during trial he was on bail and he had
maintained good conduct throughout; which is a relevant factor during the
period of interim suspension; he has never misused the liberty; the cases are
piling up in High Court and there is no likelihood of regular hearing of the
appeal in near future.
In support of his submission, learned counsel has placed reliance on a case law-
2022 LiveLaw(SC)503 Sabitri Samantaray vs State of Odisha.
5. On the other hand, the learned Additional Public Prosecutor for the State
has submitted that the applicant is not entitled to be released on bail after
suspension of sentence only on the ground that the appeal will take some time
to be heard and there is no misuse of liberty by the accused during trail when
he was on jail.
6. We have considered the submissions of learned counsel for the parties.
In the case of [Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi)
(2008) 5 SCC 230], it was held that-
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"while considering the application for suspension of sentence, seriousness of the
offence; nature of accusation; the gravity of the offence and the normal practice
is not to suspend the sentence. The fact that accused was on bail during trial
and he has not misused the liberty does not per-se warrant suspension of
sentence. Moreover, where the appeal is likely to be heard in measurable
distance of time, the suspension of sentence is not to be allowed."
7. In the present case, it appears that the deceased who is the wife of the
applicant was found dead inside the house of the applicant. Though, the
applicant took the plea of alibi that was not considered by the learned trial
court. It also appears that the judgment was delivered on 26.09.2022 and since
then, the applicant has been detained in jail. The appeal was filed on
04.11.2022 and not even one year has been passed from the date when the
appeal has filed. The applicant has been convicted for a serious offence of
murder.
8. We have given our anxious consideration to the rival submissions of the
parties and we have also gone through the judgment on which the sentence has
been imposed upon the applicant. We are not inclined to suspend the sentence
awarded to the present applicant at this stage. Therefore, the present
application stands rejected accordingly.
9. The I/A stands disposed of.
JUDGE JUDGE
Comparing Assistant
