Page No.# 1/5 GAHC010135742023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/552/2023 SHAH ALAM KHAN @ SHAH ALOM KHAN S/O AKBAR ALI KHAN RESIDENT OF BALAIPATHAR, PS KALGACHIA DIST BARPETA, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY PP ASSAM 2:AKBAR ALI S/O LATE JOYNAL ABDIN RESIDENT OF BALAIPATHAR PS KALGACHIA DIST BARPETA ASSA Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A M AHMED,MR. A AHMED,MR. I U CHOWDHURY Advocate for the Respondent : PP, ASSAM, MR D K BHATTACHARYYA,AMICUS CURIAE FOR R-2 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 13.02.2025 1. Heard Mr. H. R. A Choudhury, the learned senior counsel Page No.# 2/5 assisted by Mr. A. Ahmed, for the applicant/petitioner. Also heard Ms. S. H. Borah, the learned Additional Public Prosecutor for the State as well as Mr. D. K. Bhattacharya, the learned Amicus Curiae appearing for the respondent no.2. 2. This application under Section 389 of the Code of Criminal Procedure, 1973, has been filed by the applicant/petitioner praying for suspension of sentence imposed on the present applicant/petitioner by the judgment and order dated 16.05.2023 passed by court of Learned Additional Sessions Judge cum Special Judge (POCSO), Barpeta in Special POCSO Case No. 121/2019 whereby applicant/petitioner was convicted under Section 4 of the POCSO Act and was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/-(Rupees Ten Thousand only) and in default of payment of fine to undergo a Simple Imprisonment of 1 year. 3. The aforesaid judgment of conviction and sentence has been challenged by the present applicant/petitioner by filing the connected appeal i.e Criminal Appeal no.225/2023. 4. The petitioner has also prayed for allowing him to remain on bail during the pendency of the connected appeal. 5. The learned counsel for the petitioner has submitted that the victim girl’s minority was not proved in accordance with law and it is also in the evidence that there was a love relationship between the victim and present petitioner. Hence learned senior counsel submits that there is every possibility of getting a judgment of acquittal in the Page No.# 3/5 connected appeal. 6. He also submits that as the sentenced imposed on the present petitioner is only for a short period of 7 years and unless the sentence imposed upon the petitioner is suspended there is unlikelihood of disposal of the connected criminal appeal expeditiously and in the event if ultimately the petitioner is found to be innocent, he would be highly prejudiced if the sentenced is not suspended at this stage. In support of his submission, learned senior counsel has also cited a ruling of the Supreme Court of India in the case of Kiran Kumar Vs. State of M.P reported in (2001) 9 SCC 211 which rely on the judgment of the Apex Court in Bhagwan Rama Shinde Gosai Vs. State of Gujrat as follows: “3. This Court has held in Bhagwanram Shinde v. State of Gujarat, 1999 (4) SCC 421 : that when a person is convicted and sentenced to a short term imprisonment the normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception and be put forward for such rejection. In such case also every endeavour should be made to have the appeal posted for early hearing and disposal. If the short-term sentence is allowed to run out during the pendency of the appeal the appeal itself will become, for all practical purposes, infructuous so far as the appellant is concerned. It does not mean that the appellate Court should suspend the sentence, if its consequence would be danger to the society or any other similar difficulties.” 7. On the other hand, the learned Additional Public Prosecutor for the State, has opposed the suspension of the sentence on finding that the impugned judgment has been arrived after consideration of the evidence on record and she submits that there are implicating materials against the present applicant/petitioner Page No.# 4/5 which were considered by the Trial Court while arriving at the finding of the guilt of the applicant/ petitioner. 8. She also submits that minority of the petitioner has been proved by the prosecution side by exhibiting the birth certificate of the victim girl as Exhibit no.1 and therefore there is unlikelihood of the applicant/petitioner of getting an order of acquittal in the connected appeal. 9. The learned Amicus Curiae, Mr. D. K Bhattacharya, also submits similarly to that of the learned Additional Public Prosecutor for the State and opposes the grant of bail, however he fairly submits that the material Exhibit no.1 was not proved by the authority which issued the said exhibit. 10. I have considered the submission made by the learned counsel for both the sides and have gone through the materials on record. 11. In the instant case, the applicant/petitioner has been sentenced to undergo rigorous imprisonment for 7 years and in view of the judgment of the Apex Court to the effect that when a person is convicted and sentenced to a short term imprisonment the normal rule is that when the appeal is pending, the sentence should be suspended and rejection is only by way of an exception in the instant case. 12. The plea taken by the learned senior counsel for the applicant/petitioner on the basis of which he hopes to get an order of acquittal cannot be totally brushed aside at this stage. Further in the Page No.# 5/5 instant case also the sentence is for a short term of 7 years only and no exceptional reason appears to be there to deny the benefit of suspension of sentenced imposed on the petitioner during the pendency of the appeal, therefore, this court is inclined to allow this Interlocutory Application. Accordingly the sentence imposed on the present petitioner by the judgment which is impugned in the connected appeal is hereby suspended. 13. The petitioner shall also be allowed to go on bail of Rs.30,000/-(Rupees Thirty Thousand only) with one surety of like amount to the satisfaction of the Learned Additional Sessions Judge cum Special Judge (POCSO), Barpeta in Special POCSO Case No. 121/2019 with following conditions that :- I. In the event of dismissal of connected appeal i.e criminal appeal no.225/2023 the petitioner shall surrender before the court of Learned Additional Sessions Judge cum Special Judge (POCSO), Barpeta, to serve out the remaining part of his sentence. 14. With above observation, this interlocutory application is disposed of. JUDGE Comparing Assistant