Sorhab Ali vs The State Of Assam
2025 Latest Caselaw 6918 Gua

Gauhati High Court

Sorhab Ali vs The State Of Assam on 2 September, 2025

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GAHC010261862024




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

                            Case No. : I.A.(Crl.)/1256/2024

           SORHAB ALI
           S/O - LT CHAND ULLAH SHEIKH
           R/O - AIRONJONGLA PART-III
           P.S. - DHUBRI
           DISTRICT - DHUBRI
           PIN - 783323

           VERSUS

           THE STATE OF ASSAM
           REP. BY THE PP
           ASSAM.

           ------------
           Advocate for : MS S JAIN
           Advocate for : PP
           ASSAM appearing for THE STATE OF ASSAM



                                 BEFORE
               HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                       ORDER

Date : 02.09.2025

1. Heard Mr. B. D. Konwar, learned senior counsel assisted by Ms. H. Baishya, learned counsel for the applicant/appellant. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor, appearing for the State respondents.

2. This interlocutory application has been filed by the applicant, namely, Sorhab Ali under Section 430 of the BNSS praying for suspension of the execution Page No.# 2/5

of sentence imposed on the applicant by the judgment and order dated 27.09.2024, passed by the learned Additional Sessions Judge, Dhubri in Sessions Case No. 159/2016, whereby the applicant was convicted under Section 326 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.3,000/- and in default further rigorous imprisonment for three months. He was also convicted under Section 307 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for eight years and also to pay a fine of Rs.3,000/- and in default further rigorous imprisonment of three months.

3. The applicant has impugned the aforesaid judgment by filing a criminal appeal i.e., Criminal Appeal No. 169/2025 which has already admitted for hearing.

4. The facts relevant for consideration of the instant interlocutory application, in brief, are that one Sarbesh Ali had lodged an FIR before the In- charge of Bazar TOP under Dhubri Police Station, inter alia, alleging that on 10.12.2013 at around 8 p.m. when his uncle Sahid Ali was coming to his house after closing his tea shop, as soon as he reached in front of the house of the accused Anowar Bepari, accused Kalam suddenly hit him with sharp object and thereafter accused Kalam also hit the victim on his head and abdomen as a result of which he sustained serious injuries.

5. It is also alleged that when the other persons/neighbours came there to protect the victim they were also assaulted by the accused persons. The victim Sahid Ali was taken to Guwahati Medical College in Guwahati wherein he expired. On receipt of the said FIR, Dhubri P.S. Case No. 1127/2013 was registered and investigation was initiated. Ultimately, in completion of the investigation, charge- sheet was laid against 11 numbers of accused persons including the present applicant under Sections 147/148/149/447/323/324/326/307/302 of the Indian Penal Code. The charges under Sections 324/326/307/302/149 of the Indian Penal Page No.# 3/5

Code were framed, on 22.11.2018, the applicant pleaded not guilty and claimed to be tried.

6. During trial, prosecution side twelve witnesses and the applicant was examined under Section 313 of the Cr.P.C. during which he pleaded his innocence. It is pertinent to mentioned herein that out of ten persons against whom charge- sheet was laid in this case. Four of them were discharged by the Trial Court. It is pertinent to mentioned herein that one accused person, namely, Sona Ullah Seikh died during the course in the trial and the case was abated against him. Whereas, four other accused persons were discharged by the Trial Court. Ultimately, by the judgment which has been impugned in the connected appeal, the applicant was convicted under Section 324 and 307 of the Indian Penal Code and was sentenced in the manner as discussed in the foregoing paragraphs.

7. The learned senior counsel for the applicant has submitted that in the connected appeal filed by the applicant, there is every possibility of getting a favorable order. He submits that the Trial Court convicted and sentenced the applicant on the basis of contradictory evidence on record as regards the applicant is concerned. He submits that the appellant was convicted mainly on the basis of the testimony of the PW-7, however, the same has been contradicted by the defence side during his cross-examination which cast doubt on the veracity of the PW-7. It is also submitted by the learned senior counsel for the applicant that the weapon of assault allegedly used by the applicant was a spear, however, no such spear was recovered or seized in connection with the aforesaid case. He further submits that the injuries sustained by the PW-7 i.e., fracture of ulna is not life threatening injury and does not justify conviction under Section 307 of the Indian Penal Code.

8. The learned senior counsel for the applicant has submitted that there is no corroboration of the testimony of the PW-7 during which he had implicated the Page No.# 4/5

present applicant regarding his complicity in the alleged offence. He submits that as there is every likelihood of getting favourable order in the connected appeal, the execution of sentence imposed on the applicant may be stayed during the pendency of the connected appeal and the applicant may be allowed to go on bail.

9. On the other hand, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the applicant and also opposed the prayer for suspension of the execution of sentence during the pendency of the connected appeal in as much as he submits that in the instant case, the main victim succumbed to his injury and there are sufficient incriminating materials against the applicant in the record. He also submits that at this stage when considering an application under Section 430 of BNSS, this Court is not supposed to meticulously examine the evidence on the record and arrive at an opinion which would ultimately affect the outcome of the appeal.

10. I have considered the submissions made by the learned counsel for both sides and have gone through the records meticulously.

11. In the instant case, though the applicant has been convicted only under Sections 326 and 307 of the Indian Penal Code. However, ultimately the prime victim had succumbed to his injuries and the main accused persons were also convicted under section 302 of the Indian Penal Code.

12. In offence of such nature, which had ultimately resulted into the death of one of the victim, this Court is of considered opinion that the benefit of suspension of sentence may be granted only when something is very apparent or gross on the face of record, which may lead to a prima facie satisfaction that the conviction may not be sustained. There are a catena of rulings of the Apex Court to the effect that at this stage of considering an application under Section 389 of the Code of Criminal Procedure 1973, (which was the corresponding provision to Section 430 of BNSS in the earlier Criminal Procedure Code, 1973) the Appellate Court should not Page No.# 5/5

re-appreciate the evidence and try to pick up lacunae here and there in the case of persecution. The Apex Court has also observed that the principle of "presumption of innocence" and "bail is the rule and jail is the exception" may not be applicable to the appellate who has suffered a conviction after full trial.

13. The nature of contentions raised by the learned counsel for both sides shows that for appreciation of the same, it requires an in depth scrutiny of the evidence available on record and detailed consideration of the rival submissions made by the learned counsel for both sides at the time of final consideration of the connected appeal and not at the stage of consideration of an application under Section 430 of the BNSS.

14. This case, in the considered opinion of this Court, does not fall within the category where something very gross or apparent on the face of the record which makes it into a category of exceptional case justifying the suspension of sentence imposed on the applicant in this stage.

15. For the reasons discussed herein above, this interlocutory application for suspension of sentence of the applicant fails and same is accordingly dismissed.

16. However, considering the ground taken in the connected appeal by the applicant, he shall be at liberty to make separate prayer for out of turn listing and expeditious hearing of the connected appeal.

17. With the above observation, this interlocutory application is accordingly disposed of.

JUDGE

Comparing Assistant