Allowed

Sirajul Hoque v. the State of Assam and Anr.

Gauhati HC7 Dec 2022I.A.(Crl.)/260/2022

Case brief

AI extract

What is this about?

The Gauhati High Court, while hearing an application under section 389(1) Cr.P.C. regarding an appeal against conviction under sections 417/376 IPC, observed that facts require deeper scrutiny. The court granted bail and order to suspend the sentence for the appellant.

What did the court decide?

Appellant released on bail with bond of Rs. 30,000 and one surety of similar amount; sentence suspended pending disposal of appeal.

Sirajul Hoque Vs the State of Assam and Anr. — Bail and Remand | Gauhati HC (2022)

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GAHC010093112022

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

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Case No. : I.A.(Crl.)/260/2022

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SIRAJUL HOQUE

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S/O MOKBUL HOQUE, RESIDENT OF VILLAGE LAKHIMARI PART II, PO LAKHIMARI, PS GOLAKGANJ, DHUBRI, ASSAM 783334

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VERSUS

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

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2:SMTI MADHU BIBI W/O NAJRUL SK RESIDENT OF VILLAGE LAKHIMARI PART II PO LAKHIMARI PS GOLAKGANJ DHUBRI ASSAM 78333

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Advocate for the Petitioner : MR. A A R KARIM

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

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ORDER

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Date : 07-12-2022

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Suman Shyam, J

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Heard Mr. A.A.R. Karim, learned counsel appearing for the applicant. Also heard Ms. S. Jahan, learned Addl. P.P. Assam appearing on behalf of the State.

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By the judgment and order dated 18-04-2022 passed by the learned Addl. Sessions Judge, Dhubri in Sessions Case No. 101/2018 the applicant herein was convicted under sections 417/ 376 of the IPC. He was sentenced to undergo rigorous imprisonment for life for committing the offence punishable under section 376 IPC and to pay fine of Rs. 15,000/- with default stipulation. Insofar as the offence committed under section 417 IPC is concerned, the applicant was sentenced to undergo rigorous imprisonment for 01 year and also to pay fine of Rs. 1,000/-, in default, to undergo simple imprisonment for 01 month. Since then, the applicant is in jail. Aggrieved by the impugned judgment, the applicant has preferred Crl. Appeal No. 104/2022. The appeal has been admitted and the same is pending disposal before this Court.

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By filing the instant application under section 389(1) Cr.P.C. the applicant has approached this Court with a prayer to suspend his sentence and also to release him on bail during the pendency of the appeal.

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By referring to the impugned judgment, Mr. Karim submits that there is no ingredient of any of the offences under section 417/ 376 IPC in this case and therefore, the conviction of the applicant is clearly not sustainable in the eye of law. The learned counsel for the applicant further submits that there is a strong possibility that the applicant might be acquitted during the final hearing of the appeal. Hence, the present is

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a fit case for releasing him on bail.

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Ms. S. Jahan, learned Addl. P.P. Assam, on the other hand, submits that the victim in this case is “deaf & dumb” and therefore, the trial court had treated it as a special case by taking note of the victim’s condition. However, whether the evidence on record is sufficient to sustain the charge brought under sections 417/ 376 of IPC is a matter which will require deeper scrutiny.

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We have considered the submissions of learned counsel for both the sides and have also gone through the materials available on record. The basic case of the prosecution is that the applicant had made false promise of marriage to the victim (‘X’) and on such false promise, he had physical relationship with her. When the victim had become pregnant, the applicant refused to marry her and fled away. After about 5/6 months, the pregnancy of the victim came to light and thereafter, ejahar was lodged. The victim ultimately gave birth to a child who did not survive for long.

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It appears from the materials on record that the age of the victim was 23 years at the time of the occurrence and she had evidently remained silent about the incident for more than 5 to 6 months. In her deposition before the Court, which was recorded with the help of an interpretor, the victim had also stated that she is ready to marry the applicant, if he returns.

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From the materials on record, it is apparent that there was substantial delay in lodging the FIR and it prima facie appears that the physical relationship between the applicant and the victim was consensual. There is neither any allegation nor any finding

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recorded by the learned trial court as regards any initial deception by the applicant insofar as the claim of false promise to marry is concerned. Nothing has also been brought to our notice to indicate that the law generally makes a distinction between a normal person and a person having some form of physical disability insofar as the offence under section 376 IPC is concerned. Moreover, we find that the victim was not only capable of understanding the implication of her acts and deeds but was also in a position to communicate her feelings to others.

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Under the circumstances, we are of the view that whether the materials available on record are sufficient to sustain the conviction of the applicant in the facts and circumstances of the case is a matter that would require deeper scrutiny which will be possible only at the time of final hearing of the appeal. However, for the reasons stated hereinabove, we are of the opinion that the applicant has made out a strong prima facie case for suspension of sentence and also to allow him to go on bail during the pendency of the appeal.

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We, accordingly, direct that the applicant, viz. Sri Sirajul Hoque be released on bail on furnishing a bond of Rs. 30,000/- with one local surety of like amount to the satisfaction of the learned trial court.

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The learned trial court will also be a liberty to impose any other additional condition(s) upon the applicant for his release on bail, if so desired.

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We make it clear that the observations made hereinbefore are for the limited purpose of deciding the I.A. and the same shall not have any bearing at the time of final

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hearing of the appeal.

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I.A. stands disposed of.

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JUDGE JUDGE

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Comparing Assistant

Sirajul Hoque v. the State of Assam and Anr.

Case brief

What is this about?

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Sirajul Hoque v. the State of Assam and Anr.

Case brief

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