Gauhati High Court
Page No.# 1/6 vs The State Of Assam on 18 August, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/6
GAHC010175552025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
I.A.(Crl.)/884/2025
PRATAP MALAKAR AND 5 ORS.
S/O. SRI PUTUL MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGHAR
ASSAM.
2: RUPAM MALAKAR
S/O. SRI PUTUL MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
3: SWAPAM MALAKAR
S/O. SRI PUTUL MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
4: NANTO MALAKAR
S/O. SRI PUTUL MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
5: RINKU MALAKAR
Page No.# 2/6
S/O. SRI KHUDIRAM MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
6: PANTOSH MALAKAR
S/O. SRI SHANKAR MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY THE PP
ASSAM
------------
Advocate for : MR M SAHEWALLA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : I.A.(Crl.)/885/2025
PRATAP MALAKAR AND 5 ORS.
S/O. SRI PUTUL MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGHAR
ASSAM.
2: RUPAM MALAKAR
S/O. SRI PUTUL MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
3: SWAPAM MALAKAR
S/O. SRI PUTUL MALAKAR
Page No.# 3/6
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
4: NANTO MALAKAR
S/O. SRI PUTUL MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
5: RINKU MALAKAR
S/O. SRI KHUDIRAM MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
6: PANTOSH MALAKAR
S/O. SRI SHANKAR MALAKAR
R/O. IIEOKI GAON
USHAPUR NAHARKATIA
P/S. JOYPUR
DIST. DIBRUGARH
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY THE PP
ASSAM
------------
Advocate for : MR M SAHEWALLA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
18.08.2025
Page No.# 4/6
Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. K. Bhattacharya,
learned counsel for the applicants-appellants and Mr. R.R. Kaushik, learned Additional Public
Prosecutor for the opposite party-respondent, State of Assam.
2. The two applications are preferred by the applicants-appellants under Section 430 of
the Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 seeking suspension of the execution of
the sentence passed against them and for their release on bail.
3. The applicants as the appellants have preferred the accompanying criminal appeal
under Section 415[2] of the BNSS against a Judgment dated 10.07.2025 and an Order on
sentence dated 16.07.2025 passed by the Court of learned Additional Sessions Judge,
Dibrugarh ['Trial Court', for short] in Sessions Case no. 91/2018. By the Judgment and Order
on sentence, all the six applicants-appellants have been convicted for the offences under
Section 341, Section 324, Section 325, Section 326 and Section 307 read with Section 34,
Indian Penal Code [IPC]. For the offence under Section 307 read with Section 34, IPC, the six
applicants-appellants have been sentenced to undergo rigorous imprisonment for five years
each and to pay a fine of Rs. 10,000/- each with default stipulation. For the offence under
Section 326 in aid of Section 34, IPC, the six applicants-appellants have been sentenced to
undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- with default
stipulation. For the other offences, lesser terms of imprisonment have been imposed against
each of the applicants-appellants. The sentences of imprisonment have been ordered to run
concurrently, meaning thereby, the maximum term of imprisonment which each of the
applicants-appellants is to undergo is five years.
4. Mr. Sahewalla, learned Senior Counsel appearing for the applicants-appellants has
submitted that the applicants-appellants have been wrongly roped in with aid of Section 34,
IPC for convicting them under Section 307, IPC whereas the ingredients to attract the offence
under Section 307, IPC are palpably absent. It is his contention that the injuries were inflicted
not in a manner wherefrom it can be inferred that there was any intention or attempt to
commit murder.
Page No.# 5/6
5. Mr. Kaushik, learned Additional Public Prosecutor has, however, opposed to such
contentions.
6. It is already noted that the applicants-appellants have been sentenced for a maximum
term of imprisonment for five years. During the period of investigation and/or inquiry and/or
trial, the applicants-appellants were in custody for 52 days. Since the date of the Judgment
on 10.07.2025, they are in custody.
7. It has been held in Bhagwan Rama Shinde Gosai vs. State of Gujarat reported in [1999]
4 SCC 421, to the effect that when a convicted person is sentenced to a fixed period of
sentence and when he files an appeal under any statutory right, suspension of sentence can
be considered by the appellate court liberally unless there are exceptional circumstances. It
has been further observed that it would be a different matter if there is any statutory
restriction against suspension of sentence. Similarly, when the sentence is life imprisonment,
the consideration for suspension of sentence is to be approached in a different manner.
8. It has been observed in Narcotic Control Bureau vs. Lakhwinder Singh, 2025 INSC
190, that in the case of fixed-term sentences, if the Courts start adopting a rigid approach, in
a large number of cases, till the appeal reaches the stage of the final hearing, the accused
would undergo the entire sentence which would be a violation of the rights of the accused
under Article 21 of the Constitution and it would defeat the right of appeal.
9. In Omprakash Sahni vs. Jaiprakash Chaudhary and another, [2023] 6 SCC 123, the
observation made in Bhagwan Rama Shinde Gosai [supra] have been referred to.
10. Having regard to the projections made on behalf of the applicants-appellants; and the
law regarding suspension of sentence and grant of bail pending disposal of the appeal in
cases of conviction resulting in sentences for fixed-term, this Court is of the view that the
applicants-appellants have made out a prima facie case for suspension of the execution of the
sentences passed against them, pending disposal of the appeal.
Page No.# 6/6
11. It is, therefore, ordered that till disposal of Criminal Appeal no. 317/2025, which has
already been admitted today for hearing, execution of the sentence passed against the
applicants-appellants shall remain suspended and the applicants-appellants are allowed to be
released on bail subject to furnishing a bail bond of Rs. 25,000/- each with one surety each of
the like amount to the satisfaction of the Trial Court.
12. The application stands disposed of in the afore-stated terms.
JUDGE
Comparing Assistant
