Aynal Haque vs The State Of Assam And Anr
2023 Latest Caselaw 4768 Gua

Gauhati High Court

Aynal Haque vs The State Of Assam And Anr on 29 November, 2023

                                                                          Page No.# 1/9

GAHC010113942023




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

                                 Case No. : I.A.(Crl.)/445/2023

            AYNAL HAQUE
            S/O LATE TUTU MIYA, VILL.- BHOGRANDA, P.S.- BARPETA, DIST.-
            BARPETA, ASSAM.



            VERSUS

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

            2:MAJIBAR RAHMEN
             S/O LATE SONA ULLAH

            VILL.- KHABLAR VITHA

            P.S. AND DIST.- BARPETA
            ASSAM

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM




             Linked Case : Crl.A./186/2023

            AYNAL HAQUE
            S/O LATE TUTU MIYA

            VILL.- BHOGRANDA
                                                                          Page No.# 2/9

          P.S.- BARPETA

          DIST.- BARPETA
          ASSAM.


           VERSUS

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

          2:MAJIBAR RAHMEN
          S/O LATE SONA ULLAH

          VILL.- KHABLAR VITHA

          P.S. AND DIST.- BARPETA
          ASSAM.
           ------------
          Advocate for : MR H R A CHOUDHURY
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                BEFORE
              HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                     ORDER

Date : 29.11.2023

1. Heard Mr. A. Ahmed, learned counsel for the applicant/appellant. Also

heard Ms. S. Jahan, learned Additional Public Prosecutor for the State

respondent as well as Mr. J. Islam, learned counsel for the informant.

2. This application under section 389 of the Code of Criminal Procedure,

1973, has been filed by the applicant/appellant, namely, Aynal Haque, praying

for suspension of sentence and his release on bail during the pendency of Page No.# 3/9

connected appeal, which has been registered as Criminal Appeal No. 186/2023.

3. By preferring the said appeal, the present applicant/appellant has

impugned the judgment and order dated 12.05.2023, passed by learned

Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta in Special

POCSO Case No. 16/2022, whereby the present applicant/appellant has been

convicted under Section 376 (1) of the Indian Penal Code and has been

sentenced to undergo rigorous imprisonment for 10 years, and also to pay a fine

of Rs. 10,000/- and in default of payment of fine, to undergo further simple

imprisonment for 2 years.

4. The facts relevant for consideration of the instant interlocutory

application, in brief, are as follows:

(i) On 11.04.2021, one Mujibur Rahman Ali lodged an FIR, wherein it

has been alleged that the present applicant/appellant had forceful

physical relationship with the daughter of the first informant. It is

further alleged that though the incident occurred on 15.02.2020 at

9.30 PM and after the incident, the victim informed about the incident

to the mother of the applicant/appellant. However, she asked her not

to disclose it to anyone and assured her that some action would be

taken. However, nothing happened and later on, the victim was Page No.# 4/9

threatened of dire consequences.

(ii) On receipt of the said FIR, the police registered a case i.e., Barpeta

P.S. case no. 824/2021 under section 120B/376/506 of the Indian

Penal Code read with section 4 of the POCSO Act, 2012 and after

completion of the investigation, laid the charge-sheet against the

present applicant/appellant only under Section 376 of the Indian Penal

Code.

(iii) During the trial the learned Trial Court framed charges under Section

376 of the Indian Penal Code, read with Section 6 of the POCSO Act,

2012, against the present applicant/appellant to which he pleaded not

guilty and claimed to be tried.

(iv) During the trial, the prosecution side examined seven prosecution

witnesses, including the Medical Officer and the Investigating Officer.

During his examination under Section 313 of the Code of Criminal

Procedure, 1973, the present applicant/appellant pleaded his

innocence. However, he did not adduce any evidence in defence. After

culmination of the trial, by the judgment which has been impugned in

the connected appeal, the present applicant/appellant was convicted

and sentenced in the manner as already described herein before.

Page No.# 5/9

5. Learned counsel for the applicant/appellant has submitted that the

applicant/appellant and the victim were having relationship which has been

ignored by the learned Trial Court.

6. It is further submitted by learned counsel for the applicant/appellant

that the FIR was lodged after a delay of more than one year and no valid cause

has been shown for the delay in the FIR which itself falsify the prosecution case.

7. It is further submitted that learned Trial Court did not consider that the

delay in this case was not properly explained by the prosecution side. Learned

counsel for the applicant/appellant has also submitted that the victim had

suppressed her real age before the learned trial court, as is evident from the

evidence on record. She had not disclosed about her relationship with the

applicant/appellantwhich is disclosed in the testimony of PW-4 as well as PW-5.

8. Learned counsel for the applicant/appellant has submitted that the

evidence on record does not justify the conviction of the present

applicant/appellant under Section 376 of the Indian Penal Code.

9. Learned counsel for the applicant/appellant has further submitted that

there is every possibility of presentapplicant/appellant getting a verdict of

acquittal in the pending appeal and hence, he has prayed for allowing the

presentapplicant/appellant to be released on bail during the pendency of the Page No.# 6/9

appeal after suspending the sentence which has been imposed on him by the

learned Trial Court.

10. On the other hand, learned Additional Public Prosecutor has opposed the

prayer for suspension of sentence during the pendency of the connected appeal

and has submitted that the present applicant/appellant has been convicted by

the learned Trial Court after a full trial and proper consideration of evidence

against him which was available on record.

11. In the instant case, the applicant has been sentenced for a period of 10

years. In "Bhagwan Rama Shinde Gosai and others vs. State of Gujarat" reported

in (1999) 4 SCC 421, Hon'ble Apex Court has observed as follows:

"When a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to Page No.# 7/9

practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter suspending the sentence, so as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted."

12. In the instant case, the applicant/appellant has filed the statutory appeal

under Section 374 of the Code of Criminal Procedure, 1973, and though the

learned counsel for the applicant/appellant has raised certain important issues,

however, same may be considered only in the main appeal which is pending

before this Court.

13. However, this Court is also not oblivious of the practical situation, for

there is every likelihood that in normal course the connected appeal would be

coming up for hearing at a very belated stage, which would otherwise prejudice

the rights of the applicant/appellant if ultimately he is found to be innocent in

the connected appeal.

14. In view of the observations made by Hon'ble Apex Court (quoted herein

above) as well as facts of this case, this Court is of the considered opinion that

this is a fit case where the sentence imposed on the present applicant/appellant

by the Trial Court by the judgment and order which has been impugned in the

connected appeal is required to be suspended during the pendency of the

connected appeal.

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15. In view of the above discussion, the sentence imposed on the

applicant/appellant, namely, AynalHaque, by the judgment and order dated

12.05.2023 passed by Learned Additional Sessions Judge-cum-Special Judge

(POCSO), Barpeta in Special (POCSO) Case No. 16/2022, which has been

impugned in the connected Criminal Appeal No.186/2023, is hereby suspended

during the pendency of the said criminal appeal and the applicant/appellant,

namely, AynalHaque, is allowed to go on bail of Rs. 50,000/- (Rupees Fifty

Thousand only), with one surety of like amount subject to the satisfaction of

learned Additional Sessions Judge-cum-Special Judge (POCSO),Barpeta subject

to following conditions:

i. That the applicant/appellant shall not leave the State of

Assam during the pendency of Criminal Appeal No.186/2023 before

this Court without prior leave of the learned Additional Sessions

Judge-cum-Special Judge (POCSO) Barpeta.

ii. That the applicant/appellant shall not directly or indirectly

make any inducement, threat or promise to the victim girl during the

pendency of the Criminal Appeal No.186/2023.

iii. That the applicant/appellant shall not commit any offence

similar to that for which he has been convicted in the Special Page No.# 9/9

(POCSO) Case No. 16/2022.

16. With the above observations, this interlocutory application is hereby

disposed of.

JUDGE

Comparing Assistant