Page No.# 1/7 GAHC010173302024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/824/2024 SAHAMMAD HUSSAIN @ ISLAM SK @ SAHAMUD HUSSAIN S/O. LT. NASER ALI, VILL. BORO BHDEYAGURI, P.S. KOKRAJHAR, DIST. KOKRAJHAR, BTR, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM. 2:MD. CHAN MIAH MONDAL S/O. SAHAR ALI VILL. CHOTOBHODIAGURI P.O. BHOTGAON P.S. KOKRAJHAR BTR ASSAM PIN-78337 Advocate for the Petitioner : MR. N UDDIN, MR G SAROWAR,MR. M ISLAM,MR S K CHHETRY Advocate for the Respondent : PP, ASSAM, Linked Case : Crl.A./287/2024 SAHAMMAD HUSSAIN @ ISLAM SK @ SAHAMUD HUSSAIN S/O. LT. NASER ALI VILL. BORO BHDEYAGURI Page No.# 2/7 P.S. KOKRAJHAR DIST. KOKRAJHAR BTR ASSAM VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP ASSAM 2:MD. CHAN MIAH MONDAL S/O. SAHAR ALI VILL. CHOTOBHODIAGURI P.O. BHOTGAON P.S. KOKRAJHAR BTR ASSAM PIN-783370 ------------ Advocate for : MR. N UDDIN Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 15.09.2025 1. Heard Mr. Darak Ullah, the learned counsel for the applicant. Also heard Mr. B. Sarma, the learned Additional Public Prosecutor for the State respondent. 2. This Interlocutory Application under Section 430 of BNSS 2023 has been filed by the applicant, namely, Sahammad Hussain @ Islam Sk @ Sahamud Hussain, praying for suspension of execution of the sentence imposed on the applicant by judgment and order dated 20.07.2024, passed by the learned Special Judge, POCSO, Kokrajhar in Special Case Page No.# 3/7 No. 37/2018, and also praying for bail. 3. The learned counsel for the applicant has submitted that the applicant has faced the trial in Special Case No. 37/2018 under Section 366A/365 of Indian Penal Code read with Section 4 of the POCSO Act, 2012. 4. The learned counsel for the applicant has submitted that the applicant has impugned the aforesaid judgment by preferring a connected Criminal Appeal No. 287/2024. 5. He also submit that though in the aforesaid case, charge sheet was laid against the applicant and one another co-accused, namely, Rafiqul, however, as the attendance of the Rafiqul co-accused could not be procured in the trial, the applicant faced trial alone in the said case. 6. The learned counsel for the applicant has further submitted that by the impugned judgment, the applicant was acquitted of charges under Section 366A of the Indian Penal Code as well as Section 4 of the POCSO Act, 2012 as nothing was found against the applicant to convict him for the said offence. 7. The learned counsel for the applicant has further submitted that the Trial Court, while considering the evidence before it, in the impugned judgment had disbelieved the testimony of the victim, wherein she had alleged that she was also raped by the present applicant. 8. The learned counsel for the applicant has submitted that the testimony of the victim girl was examined under Section 164 of the Code of Criminal Procedure, 1973, on two occasions, and in the later occasion, Page No.# 4/7 she had developed her case implicating falsely against the present applicant. 9. He also submits that the evidence on record clearly indicates that the victim girl was kidnapped by the co-accused Rafiqul and the main accusation of subjecting the victim girl to penetrative sexual assault is also against the co-accused Rafiqul. 10. He, however, submits that though the applicant was acquitted under Section 4 of the POCSO Act, 2012 and Section 366A of the Indian Penal Code, the Trial Court, without any basis convicted the present applicant under Section 365 of the Indian Penal Code. 11. He also submits that all other witnesses apart from the victim girl, namely PW-2 to PW-6 are the hearsay witnesses and, therefore, the applicant is hopeful of getting a favourable result in the connected criminal appeal filed by him. 12. He also submits that in the meanwhile, the applicant has been languishing behind the bars for the last 577 days. He also submits that as the applicant has been imposed sentence of imprisonment for seven years only, which may be regarded as a sentence of a short period, the applicant should be released on bail during the pendency of the connected Criminal Appeal after suspending the execution of the sentence during the same period and in support of his submission, he has cited a ruling of the Apex Court in the case of “Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat”, reported in (1999) 4 SCC 421. Page No.# 5/7 13. On the other hand, the learned Additional Public Prosecutor has submitted that though, there are materials on record to show that on the date when the victim girl was found missing from her home, it was the co-accused Rafiqul, who came to the house of the victim girl, however, he submits that there are materials to show that later on, the victim girl was found along with the present applicant in the railway station, which points towards his complicity in the offence alleged in the said case. 14. 14. He, therefore, submits that the conviction of the applicant under Section 365 of the Indian Penal Code may not be regarded as without any basis. 15. Though, the victim girl was examined under Section 164 of the Code of Criminal Procedure, 1973 on two occasions, her subsequent statement under Section 164 of the Code of Criminal Procedure, 1973 was not taken into consideration by the Trial Court, as that pertains only to the allegation of rape against the accused persons and in her previous statement recorded under Section 164 of the Code of Criminal Procedure, 1973, she has implicated the applicant of kidnapping her, and thereby, the same statement corroborates her testimony as PW-1 before the trial. 16. I have considered the submissions made by the learned counsel for both sides and has gone through the records of Special Case No. 37/2018, which was requisitioned in connection with this case. 17. It appears that though the applicant was charged under Section 366A as well as 365 of the Indian Penal Code and Section 4 of the POCSO Act, 2012, however, the testimony of the victim girl as regards the accusation Page No.# 6/7 made under Section 366A of Indian Penal Code and Section 4 of the POCSO Act, 2012 was found to be unreliable and basing on the testimony of this same witness, he was convicted under Section 365A of the Indian Penal Code. 18. I have gone through the grounds of appeal in the Memo of Appeal filed by the present applicant. 19. It appears that the contentions raised by the applicant needs to be examined in depth in the connected Criminal Appeal. It also appears that the said Criminal Appeal has already been admitted and has been fixed for hearing in its usual course, which considering the pendency of numbers of Criminal Appeal pending before this Court would certainly take a considerable period of time. 20. Moreover, in view of the judgment of the Apex Court cited by the learned counsel for the applicant, this Court is of considered opinion that the applicant has been convicted for a short-term sentence of seven years and at this stage the contentions raised by the applicant that he may get a favourable result in the connected Criminal Appeal may not be totally ruled out. 21. Hence, this Court is of considered opinion that this is a fit case wherein the exercise of powers under Section 430 of the BNSS, the execution of sentence imposed on the petitioner may be suspended during the pendency of the connected Criminal Appeal No. 287/2024, which this Court here accordingly does. 22. The applicant is also allowed to be released on bail during the Page No.# 7/7 pendency of the connected Criminal Appeal upon furnishing a bond of Rs. 30,000/- (Rupees Thirty Thousand) only with one surety of like amount subject to the satisfaction of the learned Special Judge, Kokrajhar with a condition that in the event of dismissal of the connected Criminal Appeal, (Criminal Appeal No. 287/2024), the applicant shall surrender before the Trial Court to serve out the sentence imposed on him by the impugned judgment. 23. This Interlocutory Application is, accordingly, disposed of. JUDGE Comparing Assistant