Nekibur Rahman vs The State Of Assam And Anr
2025 Latest Caselaw 8523 Gua

Gauhati High Court

Nekibur Rahman vs The State Of Assam And Anr on 13 November, 2025

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GAHC010125122025




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

                                Case No. : I.A.(Crl.)/645/2025

            NEKIBUR RAHMAN
            S/O. LT. RUSTAM ALI, R/O. VILL.- BHETAMUKH, P/S. CHANGSARI, DIST.
            KAMRUP, ASSAM.

            VERSUS

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



Advocate for the Petitioner   : MS R BEGAM, MR. Y S MANNAN

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 13.11.2025

1. Heard Mr. H. R. A. Choudhury, learned senior counsel assisted by Mr. I. U. Chowdhury, learned counsel for the applicant. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State.

2. This application under Section 430 of BNSS, 2023 has been filed by the applicant, namely, Md. Nekibur Rahman praying for suspension of execution of sentence imposed on the applicant by the judgment and order dated Page No.# 2/6

22.05.2025 passed by the Court of learned Additional Sessions Judge (FTC), Rangia, Kamrup in Sessions Case No. 57/2018.

3. By the said judgment, the applicant was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.5000/- and in default of payment of fine to undergo further simple imprisonment for one year. The aforesaid judgment has been impugned by the present applicant by preferring the connected Criminal Appeal No. 221/2025 which has already been admitted for hearing.

4. The gist of accusation in this case is that on 09.07.2018, the victim girl had lodged an FIR before the Officer-in-charge of Changsari Police Station that on 07.07.2018, the present applicant, taking advantage of absence of parents of the victim girl in her house, at around 1:00 PM, entered there and closed the door and thereafter by threatening her committed forcible sexual intercourse with her. It is also stated in the FIR that when the victim girl made hue and cry, the neighbours came and rescued her therefrom.

5. On receipt of the said FIR, investigation was initiated and after completion of the investigation, the charge-sheet was laid against the present applicant under Section 376 of the Indian Penal Code. The applicant faced the trial remaining on bail. The Trial Court, after considering the materials on record, framed the charge under Section 376 of the Indian Penal Code against the applicant. When the said charge was read over and explained to the present applicant, he declined to plead guilty and claimed to be tried. To bring home the charges against the applicant, the prosecution side examined seven witnesses including the victim girl. The applicant was examined under Section 313 of the Page No.# 3/6

Cr.P.C., 1973, during which he denied the truthfulness of the testimony of prosecution witnesses and pleaded his innocence. He also adduced evidence of two defence witnesses in support of his claim that he has been falsely implicated in this case as he declined to marry the victim girl.

6. Ultimately, by the judgment and order which has been impugned in the connected criminal appeal, the applicant was convicted and sentenced in the manner as already described in the foregoing paragraphs of this order.

7. The learned senior counsel for the petitioner has submitted that the facts and circumstances of this case is that the prosecutrix might be the consenting party and when they were caught red handed by the neighbours, a false allegation has been made against the applicant. He further submits that though in the FIR as well as in her testimony as PW-1, the victim girl has stated that she was rescued by the villagers from her house which was locked from inside. However, none of the villagers has been examined by the prosecution side as a witness in this case. He further submits that even the medical report from the victim girl does not indicate anything regarding subjecting the victim girl to any kind of physical intercourse. He further submits that not to speak of any sign of physical intercourse, there is no injury or anything to suggest that any struggle was made during the alleged offence.

8. He further submits that the Trial Court has also overlooked the contradiction in the testimony of the prosecution witnesses which indicates that the applicant was caught red handed by the villagers and he was handed over to police. However, on perusal of the forwarding report of the petitioner before the Magistrate on his production after his arrest, it appears that he was arrested on 23.07.2018 i.e., after 16 days of alleged incident, there is no clarification Page No.# 4/6

regarding this inconsistency.

9. The learned senior counsel for the applicant submits that there is every possibility of the applicant getting a favourable order in the connected appeal and as there are a number of criminal appeals pending in this Court, unless the applicant is released on bail after suspending the execution of the sentence imposed on him by the impugned judgment, he would be highly prejudiced, as by the time his appeal may be heard, he would have served a major portion of the sentence imposed on him. In support of his submission, the learned senior counsel for the applicant has cited a ruling of the Apex Court in the case of "Amar Bahadur Singh Vs. State of Uttar Pradesh" reported in "(2011) 14 SCC 671".

10. On the other hand, learned Additional Public Prosecutor has vehemently opposed the suspension of sentence of the applicant and allowing him to go on bail at this stage. He submits that the Court of learned Additional Sessions Judge (FTC), Rangia has correctly passed the impugned order after considering the evidence available on record. He submits that the testimony of the victim girl is sufficient to convict an accused in a case involving sexual offence like rape.

11. He submits that the testimony of victim girl, as PW-1, has been corroborated by her statements which were recorded during investigation under Sections 161 and 164 of Code of Criminal Procedure, 1973. He submits that her statement remains unshaken and consistent throughout the criminal proceeding. He further submits that the statement of the victim girl has also been corroborated by the deposition of PW-2 and PW-3. He submits that there is no possibility of the petitioner getting a favourable order in the connected bail Page No.# 5/6

application filed by him and as the petitioner has not yet been completed half of the period of sentence imposed on him by the impugned judgment, he is also not entitled to get bail. He further submits that the case of the petitioner also does not fall within the category of exceptional case to entitle him to get the relief of suspension of sentence at this stage.

12. I have considered the submissions made by the learned counsel for both sides and have also gone through the materials available on record very carefully.

13. On perusal of the records of the case, it appears that the applicant has been convicted by the Trial Court primarily based on the testimony of the prosecutrix. It also appears that though the PW-1 has stated in her testimony that the door of the room in which the alleged offence took place was locked from inside and she was rescued by the villagers, however, none of the said villagers have been examined.

14. Under such circumstances, the grounds taken by the appellant in the connected appeal cannot be regarded at this stage be considered as totally devoid of any substance, same needs to be thoroughly examined after going through the materials available on record during final hearing of the connected appeal. More so, in view of the observations made by the Apex Court, under similar circumstances, in the case of "Amar Bahadur Singh Vs. State of Uttar Pradesh" (supra).

15. As there are several criminal appeals pending in this Court, it is unlikely that the connected appeal will be heard very soon. Under such circumstances, if the sentence imposed on the applicant by the impugned judgment is allowed to Page No.# 6/6

run parallelly during the pendency of the connected criminal appeal, there is a likelihood of the applicant serving out a major portion of the sentence imposed on him during such period and in such a case, in the event of getting a favourable order in the connected appeal, the applicant would be highly prejudiced. Hence, this Court is of the considered opinion that unless the execution of sentence imposed on the applicant is suspended during pendency of the connected Criminal Appeal, the appeal itself may become infructuous.

16. In view of the discussions and reasons cited in the foregoing paragraphs, the sentence imposed on the applicant by the impugned judgment is hereby suspended during the pendency of the connected Criminal Appeal No. 221/2025.

17. Accordingly, the applicant is also allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand only) with one surety of like amount subject to the satisfaction of learned Additional Sessions Judge (FTC), Rangia, Kamrup in Sessions Case No. 57/2018 subject to the condition that in event of dismissal of the connected Criminal Appeal No. 221/2025, the applicant shall surrender before the Trial Court to serve out the sentence imposed on him by the impugned judgment.

18. This interlocutory application is accordingly disposed of.

JUDGE

Comparing Assistant