Gauhati High Court
Lalit Borah vs The State Of Assam And Anr on 28 October, 2025
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GAHC010090852025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/437/2025
LALIT BORAH
S/O. LT. MANIK BORAH
R/O. BISHNUPUR
KAKITA GOAN
P/S. DHEMAJI
DIST. DHEMAJI
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REP BY THE PP ASSAM
2:JUNMONI SONOWAL
W/O. MR SARAT SONOWAL
R/O. VILL.- NORUATHAN
P/S. DHEMAJI
DIST. DHEMAJI
ASSAM.
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Advocate for : MD A RAHMAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
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BEFORE
HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA
ORDER
28.10.2025
This I.A. has been preferred seeking suspension of the sentence imposed
by the learned Trial Court vide Judgment & Order dated 04.04.2025 passed in
Special POCSO Case No. 11/2024 convicting the applicant under Section 10 of
the POCSO Act and sentencing him to undergo Rigorous Imprisonment for 6
years and to pay a fine of Rs. 10,000/- in default to undergo Rigorous
Imprisonment for 6 months.
2. Mr. S. Nawaz, learned counsel for the applicant submits that there are
glaring errors of law as well as on facts committed by the learned Trial Court
while convicting and sentencing the accused as accused/applicant as aforesaid.
3. It is pointed out that the defence statement under Section 313 of the CrPC
was recorded in gross-violation of the law laid down in this regard in as much as
the learned Trial Court combined all the incriminating circumstances against the
petitioner deposed to by a witness in one single question to the accused
because of which he was not able to effectively explain such circumstances and
therefore, he has been seriously prejudiced in his defence.
4. Since the POCSO Act provides that the Court shall draw an adverse
presumption against the accused upon the allegations made by the prosecution,
he ought to have been given every opportunity to rebut such presumption which
includes the opportunity to submit his defence statement in a proper and
adequate manner, which opportunity the applicant has been deprived of in the
instant case, submits learned counsel.
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5. On the other hand, the learned Addl. Public Prosecutor has submitted that
the prosecution has been able to prove the guilt of the accused beyond all
reasonable doubt.
6. The learned counsel for the petitioner has relied upon the decision of the
Hon'ble Supreme Court in Kiran Kumar Vs. State of M.P., reported in (2001) 9
SCC 211, wherein it has been held that the normal rule is that when the appeal
of a person convicted and sentenced is pending, the sentence passed on him
should be suspended unless any exceptional reason existing therein requires the
denial of the same.
7. Reference was made to Bhagwan Rama Shinde Gosai Vs. State of Gujarat ,
reported in (1999) 4 SCC 421, wherein the Hon'ble Supreme Court held that
when a person is sentenced to a short-term imprisonment, the normal rule is
that pending disposal of the appeal, the sentence should be suspended and
rejection is only by way of exception.
8. In Supreme Court Legal Aid Committee representing Undertrial Prisoners
Vs. Union of India & Ors, reported in (1994) 6 SCC 731, it was held as follows:
"15. We, therefore, direct as under:
(i) Where the undertrial is accused of an offence(s) under the Act
prescribing a punishment of imprisonment of five years or less and
fine, such an undertrial shall be released on bail if he has been in jail
for a period which is not less than half the punishment provided for the
offence with which he is charged and where he is charged with more
than one offence, the offence providing the highest punishment. If the
offence with which he is charged prescribes the maximum fine, the bail
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amount shall be 50% of the said amount with two sureties for like
amount. If the maximum fine is not prescribed bail shall be to the
satisfaction of the Special Judge concerned with two sureties for like
amount.
(ii) Where the undertrial accused is charged with an offence(s) under
the Act providing for punishment exceeding five years and fine, such
an undertrial shall be released on bail on the term set out in (i) above
provided that his bail amount shall in no case be less than Rs 50,000
with two sureties for like amount.
9. In Narcotic Control Bureau Vs. Lakhwinder Singh, 2025 INSC 190 , the
Hon'ble Supreme Court held that the above Judgment does not take away the
power of the Court to grant regular bail even if the period undergone by a
prisoner is less than what is provided in the said judgment. It was further held
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. This will be a
violation of the rights of the accused under Article 21 of the Constitution.
Moreover, it will defeat the right of appeal.
10. In the instant case, I have perused the material on record. The applicant
has been in jail since his conviction vide Judgment dated 04.04.2025 and the
sentence is for a fixed period of 6 years. There also appears to be force in the
submission of the learned counsel for the applicant with regard to the procedure
adopted by the learned Trial Court while recording the statement of the accused
under Section 313 of the CrPC.
11. Keeping in view the same and considered in the light of the decision of the
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Hon'ble Supreme Court in Kiran Kumar (Supra), I do not find any exceptional
reason requiring denial of suspension of sentence, even though the applicant
has not spent an unduly long period behind bars. Hence, I am of the considered
opinion that this is a fit case where the execution of the remaining part of the
sentence imposed by the impugned Judgment may be suspended. It is
accordingly so ordered.
12. Further, during the pendency of the connected criminal appeal, the
petitioner is allowed to go on bail of Rs. 50,000/- with one surety of like amount
subject to the satisfaction of the learned Additional Session Judge, Dhemaji in
Special POCSO Case No. 11/2024 with a condition that, in the event of dismissal
of the connected Criminal Appeal No. 159 of 2025, the petitioner shall surrender
before the Trial Court to serve out the remaining part of his sentence imposed
by the impugned judgment or as may be directed by the Appellate Court.
13. The Interlocutory Application is accordingly disposed of.
JUDGE
Comparing Assistant
