Page No.# 1/6 vs The State Of Assam And Anr
2025 Latest Caselaw 1941 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And Anr on 4 August, 2025

                                                                         Page No.# 1/6

GAHC010215982024




                                                                   2025:GAU-AS:10065

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

                                Case No. : I.A.(Crl.)/1001/2024

            UTTAM DAS
            S/O. LATE GOBINDO CHANDRA DAS, A RESIDENT OF MISSION PARA,
            TINSUKIA, P.O. AND P.S. TINSUKIA, DIST. TINSUKIA, ASSAM, PIN-786125.



            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY THE PP, ASSAM.

            2:RIYA BARMA
             D/O. SRI LAXMI PRASAD BARMA
             R/O. VILL. PENGIRI CHARIALI
             P/O AND P/S PENGIRI
             DIST.- TINSUKIA
            ASSAM
             PIN-786174

Advocate for the Petitioner   : MR. B K DAS, H P NEOG,MR. S D PURKAYASTHA,MR H P
GUWALA

Advocate for the Respondent : PP, ASSAM,

                                                 In
                                       Crl.A. Case No. 349/2024




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Page No.# 2/6

04.08.2025

1. Heard Mr. S.D. Purkayastha, the learned counsel for the petitioner. Also heard Mr. K.K. Parasar, the learned Additional Public Prosecutor appearing for the State of Assam, as well as Mrs. P.B. Bordoloi, the learned Legal Aid Counsel appearing for the respondent No. 2.

2. This application under Section 430 of the BNSS, 2023, has been filed by the applicant, Sri Uttam Das, praying for suspension of sentence during the pendency of the connected Criminal Appeal, No. 349/2024, as well as praying for bail of the present applicant.

3. The applicant was convicted under Section 376 of the Indian Penal Code, 1860 and was sentenced to undergo rigorous imprisonment for 10(Ten) years, and to pay a fine of Rs. 10,000 (Rupees Ten Thousand only), and in default of payment of fine, to undergo further simple imprisonment for 6 (six) months by the Court of the learned Additional Sessions Judge, (FTC-2), Tinsukia in Sessions Case No. 13(T) of 2021.

4. On 29.05.2019, the father of the victim-girl had lodged an FIR before the Officer-in-Charge of Tinsukia Police Station, inter alia, alleging that it is because of the present applicant, who had cohabited with her minor daughter, she became pregnant and was carrying pregnancy of 5(five) months at the time of lodging of the FIR.

5. On the basis of the said FIR, the investigation was initiated and ultimately charge sheet was laid against the above-named applicant. After laying of the charge sheet, the charge under Section 376 of Indian Penal Code, 1860, was claimed against the present applicant. When the said charge was read over and explained to him, he declined and claimed to be tried.

6. During trial 4(four) prosecution witnesses were examined by the Page No.# 3/6

prosecution side to bring home the charge against the applicant. The applicant was examined under Section 313 of the Indian Penal Code, 1860, after completion of prosecution witnesses, during which he denied the truthfulness of the prosecution witnesses and pleaded his innocence. However, no defence evidence was adduced by the defence side.

7. Ultimately, by the judgment dated 13.09.2024, passed by the learned Additional Sessions Judge, (FTC-2), Tinsukia, in Sessions Case No. 13(T) of 2021, the applicant was convicted and sentenced in the manner as already described in the following paragraphs.

8. The applicant has impugned the aforesaid judgment by filing the connected Criminal Appeal, i.e., Criminal Appeal No. 349/2024, which is pending before this Court.

9. The learned counsel for the applicant has submitted that the applicant is innocent and has been falsely implicated in this case. He submits that there is every likelihood of the connected appeal filed by the applicant resulting in a favourable order of acquittal and therefore, during pendency of the connected appeal, he prays for suspension of the sentence imposed on him and allowing him to go on bail.

10. He submits that in this case, there has been an unexplained delay of 5(five) months in lodging of the FIR, which itself shows the falsity of the accusation made against the present applicant.

11. He also submits that during the trial, the applicant was also deprived of confronting the contradiction of prime witnesses to the Investigating Officer as the Investigating Officer was not examined as a prosecution witness by the prosecution side.

12. He submits that on that count, he is entitled to get the benefit. He also Page No.# 4/6

submits that though the place where the alleged offence was committed was the house of the present applicant, where his family members were present, when the alleged offence was committed, like his wife, daughter and son, however, none of them were examined as prosecution witnesses.

13. He also submits that the FIR does not make any direct accusation of rape on the present applicant.

14. He submits that from the evidence, it is apparent that the victim named the applicant only when she was scolded by her father, i.e., the informant and therefore, there is a doubt as to whether she was proposing truly before the Trial Court. He, therefore, submits that there is every possibility of the applicant getting a favourable order in the connected appeal and therefore, prays for suspension of the sentence during the pendency of the said appeal.

15. On the other hand, the Additional Public Prosecutor, Mr. K.K. Parasar, as well as the Legal Aid Counsel, representing the respondent No. 2, Mrs. P.B. Bordoloi, has vehemently opposed the prayer made in the interlocutory application by the applicant.

16. They submit that in this case, the victim has categorically implicated the applicant of subjecting her to forceful sexual intercourse.

17. The learned Additional Public Prosecutor also submits that merely because the Investigating Officer has not been examined, may not be accounted for discarding the testimony of other witnesses, if same are otherwise relied upon.

18. He also submits that there are rulings of the Apex Court in this regard, which he intends to rely during the hearing of the main appeal.

19. He also submits that this is not a case, where there is no evidence and prima facie, the applicant appears to be innocent. Rather, in this case, the victim Page No.# 5/6

has categorically implicated and the Trial Court has denied the testimony of the victim-girl in coming to the finding of guilt of the present applicant.

20. The learned counsel for the respondent No. 2 as well as the learned Additional Public Prosecutor also submits that the applicant has been sentenced to undergo rigorous imprisonment for 10(ten) years and this is not a case, where he has already completed half of the punishment imposed on him.

Rather, he has been detained behind the bars only since 13 th of September, 2024, which is even less than a year. Both the counsel have, therefore, submitted that the interlocutory application filed by the applicant may be dismissed.

21. I have considered the submissions made by the learned counsel for both sides and have gone through the records of Trial Court which were requisitioned in connection with this case.

22. While considering an application under Section 430 of BNSS, (2023) for suspension of sentence during the pendency of the connected Criminal Appeal, this Court is not supposed to go into depth of the case and come to the finding of guilt or otherwise by examining the materials of record meticulously, while disposing of the interlocutory application. If prima facie, from the materials available on record, this Court comes to a finding that the applicant has a good case in the appeal.

23. There may be ground for suspending the sentence imposed on him. However, in the instant case, considering the fact that the victim-girl has specifically implicated the applicant of having committed the offence with which the applicant has been convicted, this is not a case where prima facie material are there showing the innocence of the applicant. Whether the testimony of the victim-girl is reliable or not in light of the fact that the applicant was not Page No.# 6/6

afforded an opportunity of contradicting the same, by confronting it with the testimony of Investigating Officer is a question to be decided in appeal after full hearing. Same question may not be decided in this Interlocutory Application as any decision on the same question, either in affirmative or in negative, would have a bearing on the pending appeal itself.

24. This Court is, therefore, of the considered opinion that this is not a case, where the sentence imposed on the applicant may be suspended during the pendency of the connected appeal. The applicant, however, would be at liberty to file a separate application praying for expeditious hearing of the connected appeal.

25. For the appropriate reasons, this Interlocutory Application is dismissed.

JUDGE

Comparing Assistant