Akher Ali Vs the State of Assam and Anr.

Heard Mr. HRA Choudhury, learned Sr. counsel assisted by Mr. A.M Ahmed, learned counsel for the petitioner. Also heard Mr. K.K Das, learned Additional Public Prosecutor for the State of Assam.

¶18

The present Interlocutory Application under Section 430 of BNSS, 2023 has been filed by the petitioner for suspension of sentence as well as bail to the applicant during the pendency of the instant Criminal Appeal.

¶19

The fact of the instant case is that the victim’s father lodged the ejahar stating inter alia that the petitioner along with another had enticed his daughter and took her to Rajasthan with the allurement that the petitioner would marry her. But upon reaching Rajasthan it is alleged that the petitioner forcefully raped the victim and that the petitioner as well as the other person, had sold her to an unknown person who again stated to have sold her to another to whom the victim got married.

¶20

It is alleged that the victim, after being missing for one year, called her father from Rajasthan and the father along with another person had recovered her from the said place. Pursuant to the said ejahar, the police investigated the case and submitted the chargesheet on completion of the investigation and thereafter, charges were framed and the trial was conducted. During the trial, 8(eight) witnesses were examined along with the victim and other official

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witnesses and after examining the petitioner under Section 313 of the Cr.P.C. the petitioner was convicted under Section 366A of IPC and was sentenced to undergo rigorous imprisonment for 5(five) years with fine and default stipulation vide judgment and order dated 10.07.2025. Against the said judgment and order, the instant Criminal Appeal is filed by the appellant along with the Interlocutory Application for suspension of the sentence and subsequent bail under Section 430 of the BNSS, 2023.

¶23

The victim was examined as PW-2 and she stated that around 7 years back from the date of deposition, at around 12 Noon, when she was on her way to school, the petitioner took her to his sister’s house and by keeping her there for one night, he took her to Delhi and from Delhi he again took her to Rajasthan. She further stated that the petitioner sold her to one Ramzan Ali in Rajasthan with whom she got pregnant. The victim, during her cross-examination, had stated that she married said Ramzan Ali and that she had 2(two) children out of the wedlock. She also stated that she has been passing her married life happily with said Ramzan Ali. During her cross-examination, she stated that she went to Dhubri on her own will and that she could not remember how she reached Rajasthan.

¶24

These statements is in the teeth of the statements made by her during her examination-in-chief where she stated that it was the petitioner who took her to Dhubri and then to Rajasthan. In view of the same, the complicity of the petitioner is demolished by the statement made by the victim in her cross-examination. The

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statement of the father of the victim who was examined as PW-1 assumes relevance as far as the age of the victim is concerned. He in his statement had stated that the original provisional Birth Certificate was seized and that the same was collected by a villager who has expired and that the said villager had informed him that the date of birth was written in the said birth certificate. He also stated that after a long time the provisional Birth Certificate was issued. As such, from his statement it is disclosed that he is not aware of the actual birth date of the victim as it is alleged to have been mentioned in the said Birth Certificate.

¶27

Before the Doctor it was stated that the victim was aged 17 years. The Investigating Officer in his examination as PW-8 had stated that he did not examine the authenticity and the genuineness of the said original provisional Birth Certificate of the victim. Further, the statement of PW-3 who was informed by the father of the victim when the victim went missing, stated that after 1(one) year the victim was found and when he along with the father of the victim went to the place where the victim was staying and recovered her from there, it was found that the victim was leading her conjugal life with her husband. This witness in his cross-examination had stated that the victim informed the complainant that she on her own went to Rajasthan along with the person named Saiful who was not the petitioner.

¶28

In view of the said discrepancies in the evidences on record, this Court finds it fit that the sentence awarded by the Ld. Trial Court by which the petitioner was sentenced to undergo rigorous

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imprisonment for 5(five) years with fine and default stipulation be suspended during the pendency of the appeal and subsequent bail, in connection with Special (P) Case No. 23 (BGN) of 2020 arising out of Bongaigaon PS Case No. 147/2015, may be granted to the petitioner on furnishing a bail bond of Rs. 30,000/- with 2(two) local sureties of the like amount to the satisfaction of the Ld. Special Judge, Bongaigaon.

¶31

In view of the above, this Interlocutory Application stands disposed of.

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JUDGE

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Comparing Assistant

Akher Ali v. the State of Assam and Anr.

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Akher Ali v. the State of Assam and Anr.

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