Gauhati High Court
Hosen Ali vs The State Of Assam And Anr on 5 February, 2025
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GAHC010195942023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/908/2023
HOSEN ALI
S/O - LATE ABDUL SK.
R/O- VILL. SAGOLCHARA PART-III, P.O.- SAGOLCHARA, P.S.- DHUBRI,
DIST- DHUBRI(ASSAM), PIN- 783324.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP, ASSAM.
2:FARHANA BEGUM(VICTIM)
D/O- LATE SOPIAR RAHMAN
R/O- VILL. SAGOLCHARA PART-III
P.O.- SAGOLCHARA
P.S.- DHUBRI
DIST- DHUBRI(ASSAM)
PIN- 783324
Advocate for the Petitioner : MR R ISLAM,
Advocate for the Respondent : PP, ASSAM, MS. R CHOUDHURY, AMICUS CURIAE FOR R-2
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 05.02.2025
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1. Heard Mr. S. Das, learned counsel for the applicant. Also heard K. K.
Das, learned Additional Public Prosecutor for the State as well as Ms. R.
Choudhury, learned Amicus Curiae appearing for the opposite party No.2.
2. This application under Section 389 of BNSS, of the code of Criminal
Procedure has been filed by applicant Mr. Hosen Ali, for suspending the
execution of sentenced imposed on the applicant by the judgment order dated
14.06.2023 passed by Learned Special Judge, POCSO, Dhubri in Special Case
No.01/2021.The applicant was convicted under section 448 of IPC and was
sentenced to undergo 1(one) year Rigorous Imprisonment and pay a fine of
Rs.1000/-(One Thousand) and in default of payment of fine, undergo further
Rigorous Imprisonment for 1(One) month. He was also convicted under section
8 of the POCSO Act and was sentenced to undergo Rigorous Imprisonment of 5
years and pay a fine of Rs.50,000/- and in default of payment of fine to undergo
Rigorous Imprisonment for 3(three) months.
3. Learned counsel for the applicant has submitted that the applicant
has impugned aforesaid Judgment by preferring the connected appeal which is
registered as Criminal appeal No.360/2023. Learned counsel for the applicant
has also submitted that there is a good chance of connected judgment of
acquittal in the connected Criminal Appeal as the trial Court has not consider
the inherent contradiction in the testimony of prosecution witnesses while
arriving at the finding of guilt of the applicant. He has also submitted that since
sentences imposed on the applicant is of short period of 5 years out of which he
has already undergone near about one year nine months and four days.
4. Learned counsel for the applicant has also submitted that the Apex
Court has laid down in the case of Kiran Kumar Vs. State of M.P reported in
2001(9 SCC 211) that when a person is convicted and sentenced to a short term
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in Criminal, the normal rule is that when his appeal is pending the sentenced
should be suspended and rejection is only by way of an exception.
5. In the instant case he submits that there is no such exception for
not applying normal rule applicable in case short sentences. Learned Additional
Public Prosecutor Mr. K. K. Das, as well as learned Amicus Curiae have fairly
submitted that since the sentenced imposed on the applicant is for short
period of 5(five) years being guideline laid down by the Apex Court for such
cases may be made applicable in this case also. 6. Considering the
submissions made by the learned counsel for the parties, the instant
Interlocutary Application is allowed. The sentenced imposed on the applicant
by the impugned judgment dated 14.06.2023 passed by Learned Special Judge,
POCSO, Dhubri in Special Case No.01/2021, is hereby suspended during the
pendency on connected Criminal Appeal No. 360/2023.
7. The above named applicant is also allowed to go on bail of
Rs.30,000/-(Thirty Thousand only) with one surety of like amount subject to the
satisfaction of learned Special Judge, POCSO, Dhubri. During the pendency of
the connected Criminal Appeal No. 360/2023 with following conditions that the
applicant, in event of dismissal of the connected appeal shall surrender before
the Court of Learned Special Judge, POCSO, Dhubri, to serve the remaining part
of his sentence. The applicant shall not in any manner take any steps which
may be untoward towards the victim girl or of the witnesses who had deposed
against him in the trial Court in which he was convicted. The above observation
in this interlocutory application is disposed of in Criminal Appeal No. 360/2023.
8. Heard Mr. S. Das, learned counsel for the appellant. Also heard Mr.
K.K. Das, learned Additional Public Prosecutor as well as Mr. R. Choudhury,
learned Amicus Curiae appearing for the claim. Since this case is ready for
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hearing, it may be listed for hearing in its usual course.
JUDGE
Comparing Assistant
