Gauhati High Court
Johirul Islam @ Johirul Hoque @ Babu vs The State Of Assam on 14 February, 2025
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GAHC010032962024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/166/2024
JOHIRUL ISLAM @ JOHIRUL HOQUE @ BABU
S/O MOHIROT ALI @ MOHIUDDIN SK, R/O JHAGRAPAR PART-III, P.S.
DHUBRI, DIST. DHUBRI, ASSAM
VERSUS
THE STATE OF ASSAM.
REP. BY THE PP, ASSAM
2:HUZAR ALI
S/O- LATE KODAT ALI
R/O- JHAGRARPAR PART-III
P/S- DHUBRI
DISTRICT- DHUBRI (ASSAM)
Advocate for the Petitioner : MR SARFRAZ NAWAZ,
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 14.02.2025
1. Heard Mr. S. Das, learned counsel for the applicant. Also heard Mr. K.K. Das, learned Additional
Public Prosecutor.
2. This application under Section 389 Cr.P.C., 1973 for suspension of the sentence imposed on the
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applicant by the judgment and order dated 05.12.2023 passed by the learned Sessions Judge, Dhubri in
Sessions Case No.81/2018, whereby, the applicant was convicted under Section 304 IPC and was
sentenced to undergo Rigorous Imprisonment for 7 (seven) years and to pay a fine of Rs.5,000/- and in
default to undergo Simple Imprisonment for 6 (six) months.
3. Learned counsel for the petitioner has submitted that the applicant has impugned the aforesaid
judgment in a connected Criminal Appeal No.39/2024. He also submits that the conviction of the
applicant by the impugned judgment is mainly on the basis of a dying declaration of the deceased. He
further submits that there are several inconsistencies, which would diminish the value of the dying
declaration and there is every possibility of the applicant getting the order of acquittal in the connected
Criminal Appeal.
4. He also submits that in view of the observation made by the Apex Court in the case of Kiran
Kumar -vs- State of M.P reported in (2001) 9 SCC 211, where a suspension of sentence in case of
short sentence was held to be a rule and its rejection was treated an exception. Therefore, he prays for
allowing the Interlocutary Application by suspending the sentence imposed on the applicant by the
impugned judgment as well as allowing him to go on bail.
5. On the other hand, learned Additional Public Prosecutor, Mr. K.K. Das has vehemently opposes
the prayer for suspension on the ground that dying declaration, on the basis of which the applicant was
convicted has been corroborated by other witnesses.
6. I have considered the submission made by the learned counsel for both parties and also perused
the materials available on record.
7. The Apex Court in the case of Kiran Kumar (supra) has observed as follows:-
"3.This Court has held in Bhagwan Rama Shinde Gosai v. State of
Gujarat that when a person is convicted and sentenced to a short-
term imprisonment the normal rule is that when his appeal is
pending the sentence should be suspended and rejection is only by
way of exception and be put forward for such rejection. In such case
also every endeavour should be made to have the appeal posted for
early hearing and disposal. If the short-term sentence is allowed to
run out during the pendency of the appeal, the appeal itself will
become, for all practical purposes, infructuous so far as
the appellant is concerned. It does not mean that the appellate court
should suspend the sentence, if its consequence would be a danger
to the society or any other similar difficulties. "
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8. In the instant case also, the applicant has been sentenced to undergo Rigorous Imprisonment for 7
(seven) years and no exceptional reason is there for not suspending the sentence and not following the
rule of suspension of sentence in cases of short term punishment.
9. For the aforesaid reasons, the Interlocutary Application is allowed. The impugned sentence
imposed by the judgment and order dated 05.12.2023 in Sessions Case No.81/2018 is suspended during
the pendency of the Criminal Appeal No.39/2024.
10. The applicant namely Johirul Islam @ Johirul Hoque @ Babu is allowed to go on bail of
Rs.30,000/- (Rupees thirty thousand only) with one surety of the like amount to the satisfaction of the
learned Sessions Judge, Dhubri in Sessions Case No.81/2018 subject to the conditions that in the event
of dismissal of the Criminal Appeal No.39/2024, the applicant shall surrender before the Court of
learned Sessions Judge, Dhubri to serve out the remaining part of his sentence.
11. With the above observation, the Interlocutary Application stands disposed of.
JUDGE
Comparing Assistant
