Gauhati High Court
Pabitra Sarkar vs The State Of Assam And Anr on 11 August, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010066862024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/323/2024
PABITRA SARKAR
S/O LATE RAJKUMAR SARKAR, VILL.- 1 NO. BOITAMARI, P.S.- TAMULPUR,
DIST.- BAKSA, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:PHILIMON KHALKHO
S/O PASKAL KHALKHO
VILL.- 1 NO. BAITAMARI
P.O.- KUMARIKATA
P.S.- TAMULPUR
DIST.- BAKSA
ASSAM
PIN- 781360
Advocate for the Petitioner : MR S C DAS, P BURAGOHAIN,MR. C. SHIL
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 11-08-2025
Heard Mr. S.C. Das, learned counsel for the applicant-appellant; Mr. B.
Sharma, learned Additional Public Prosecutor for the opposite party no. 1, State
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of Assam; and Mr. S. Nawaz, learned Amicus Curiae for the opposite party no.
2.
2. The instant interlocutory application under Section 430[2] of the Bharatiya
Nagarik Suraksha Sanhita [BNSS], 2023 is preferred by the applicant-appellant
seeking suspension of execution of the sentence passed against him and for his
release on bail.
3. The applicant as the appellant has preferred the accompanying criminal
appeal, Criminal Appeal no. 100/2024 wherein he has assailed a Judgment and
Order dated 17.02.2024 passed by the Court of learned Sessions Judge, Baksa,
Mushalpur in Sessions Case no. 75/2019. In Sessions Case no. 75/2019, the
applicant-appellant faced charge under Section 376, Indian Penal Code [IPC].
The applicant-appellant has been convicted under Section 376, IPC and he has
been sentenced to undergo rigorous imprisonment for seven years and to pay a
fine of Rs. 5,000/-, with default stipulation.
4. During the course of the trial, the prosecution side examined 6 [six] nos.
of witnesses and the prosecutrix as the Court Witness. The prosecution side
had also exhibited a number of documentary evidence including a Medical
Report and the statement of the prosecutrix recorded under Section 164, CrPC.
In the First Information Report [FIR] lodged in connection with Tamulpur Police
Station Case no. 141/2018 on 30.04.2018, an incident occurred on 29.04.2018
was reported. As per the FIR, the applicant-appellant had committed forceful
penetrative sexual assault upon the prosecutrix after making her to consume
liquor. The prosecutrix was examined medically on 30.04.2018. The statement
of the prosecutrix was also recorded under Section 164, CrPC on 01.05.2018.
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5. Mr. Das, learned counsel for the applicant-appellant has submitted that the
applicant-appellant is serving his sentence presently and he is in incarceration
for a period of 1 year 5 months.
6. The learned counsel for the respondents have submitted that the
statement of the prosecutrix was consistent throughout and the medical
evidence has corroborated the case of the prosecutrix.
7. I have gone through the materials available in the case records of
Sessions Case no. 75/2019 in original. Upon going through the contents of the
statement of the prosecutrix recorded under Section 164, CrPC and her
testimony before the Court as C.W.1, the version of the prosecutrix is found to
be consistent one throughout. The testimony of the prosecutrix is corroborated
by the medical evidence.
8. In view of such evidence on record and also considering the period of
incarceration of the applicant-appellant, this Court is of the considered view that
the instant application under Section 430[2], BNSS [earlier 389[2], CrPC] is not
merited. Consequently, the application is dismissed at this stage.
JUDGE
Comparing Assistant
