Page No.# 1/5 GAHC010182602023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) I.A.(Crl.)/741/2023 BIPUL SARKAR S/O LATE HARILAL SARKAR R/O NO. 1 PAKHRIGURI P.S.- BASUGAON DIST.- CHIRANG ASSAM. VERSUS THE STATE OF ASSAM AND ANR. TO BE REP. BY THE P.P. ASSAM. 2:LAKHI SARKAR W/O NAKUL CHANDRA SARKAR R/O NO. 1 PATHARGURI P.S.- BASUGAON DIST.- CHIRANG ASSAM PIN- ------------ Advocate for : MR H R A CHOUDHURY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. Page No.# 2/5 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : --20.01.2025 Heard Mr. H.R.A. Choudhury, the learned senior counsel assisted by Mr. A. Ahmed, learned counsel for the applicant and also heard Mr. R.J. Baruah, the learned Additional Public Prosecutor appearing on behalf of State Respondent No. 1. 2. This is an application u/s 389 Cr.PC for suspension of sentence passed in Sessions Case No. 7 of 2022 by learned Sessions Judge, Chirang whereby the present applicant is convicted u/s 376 IPC and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 10,000/- in default to suffer imprisonment for 6 months and also prayed to release the accused/applicant. 3. It is submitted by Mr. Choudhury, the learned senior counsel that false and concocted allegation has been levelled against the accused-applicant. The victim is a married woman living with two grown up children and the FIR is lodged only after 14 days of the occurrence. Though such explanation has been made in the FIR, which is not believable. Further it is submitted that as per the FIR after first occurrence she remained silence and did not disclose anything to her husband and only after the second incident she narrated the story to her husband, which is not believable. Further he submitted that there is nothing in the Medical Report which was done after 15 days of the occurrence. Accordingly, he submitted that there is every chance of acquittal in this case. Further, he submitted that the accused-applicant was in bail all along in the trial and he made not jump over any condition during the trial. Being the permanent resident of the addressed locality will produce genuine bailor if he is released on Page No.# 3/5 bail. Mr. Choudhury further submitted that the case is ready for trial but there is possibility of delay in disposal of the connected appeal and accordingly he submitted that the accused/applicant may be allowed to go on bail by suspending the sentence passed by the learned Sessions Judge in Sessions Case No. 7 of 2022. 4. In this context he relied on the decision of this Court passed in Misc. Case No. 195/2001 dated 15.10.2001 and basically relied on para 3 of the said judgment herein below: “3. However, the main plank of Mr. Mazumdar's argument is the delay in disposal of the appeal. Which according to him, entitles the accused-Appellants to be released on bail in view of Article 21 of the Constitution –Mr. Mazumdar points out that the instant appeal was admitted as far back as 18.08.2000, more than a year ago; and the paper book has not been prepared as yet. In Anurag Baitha’s case MANU/BH/0028/1987 : 1987 Crl. L.J. 2037, the accused-Appellant was convicted under Sections 302/34/333 IPC read with Section 27 of the Arms Act and was sentenced to life imprisonment on the capital charge. In appeal, the High Court refused bail to him. More than a year thereafter he renewed his prayer for bail. Noticing the two competing principles, namely, one which is applied when the prayed for bail is refused on merits; and the other arising on account of the ‘long incarceration of the accused and the inevitable delay in hearing of his appeal, the matter was referred to a larger bench. The Full Bench held: Article 21 does not stop short at the end of the trial but continues to extend its protective shield even after the post-conviction stage. Equally it has to be borne in mind that in the event of later acquittal by the appellant court the long incarceration in jail during the pendency of the appeals in inherently incompenstable in terms of money. Even assuming that Section 389 does not envisage the questions of delay, the applicability of Article 21 and the right of speedy trial and expeditious hearing of substantive appeals cannot be possibly excluded from this area. Barring exceptions the reasonable period of time for the hearing of substantive appeals on capital charges pending in the High Court must be broadly one year. Once this is so fixed, a convict would become entitled to claim bail on the ground of the delay in hearing the appeal itself unless there are cogent grounds for acting otherwise. Page No.# 4/5 To the following horrendous capital crimes (categorisation is not exhaustive which are shocking to the conscience of society, the general rule stated above shall not apply: (a) Multiple and mass murders on caste and tribal considerations.- (b) Dacoity coupled with murder. (c) Rape with murder. (d) Bride Burning. (e) Terrorist crime. (f) Daylight bank robbery; abduction for ransom followed by murder indiscriminate use of firearms and bombs in murders disturbing public order.” 5. Mr. Baruah, the learned Additional Public Prosecutor submitted in this regard that the order of conviction was passed basically by relying on the evidence of PW-1, the victim in this case and which is found to be relevant and inspiring. He further submitted that it is a fact that there is no medical evidence found in the examination of the victim as the victim was examined only after 15 days of the occurrence. However, the evidence of the victim/PW-1 is believable and trustworthy and there is nothing to disbelieve the petitioner and accordingly he raised objection allowing the petitioner to go on bail as well as for suspension of sentence. The learned Additional Public Prosecutor also submitted their written objection in connection with the present application. 6. Hearing the submission made by the learned counsel for both sides, I have also perused the evidences of the PWs and the judgment passed by learned Trial Court below and accordingly it is seen that the order of conviction was based as mentioned by PW-1, the victim of this case and as there is no other eye-witnesses to the said incident. However, considering the submissions made by learned counsel for the petitioner and also considering the conduct of the Page No.# 5/5 accused/applicant who was on bail during the entire period of trial and did not misuse any condition of the bail and other aspects of the case, I find it is a fit case to allow the present applicant Bipul Sarkar to go on bail of Rs. 50,000/- with one surety of like amount to the satisfaction of the learned Sessions Judge, Chirang and suspended/stayed the conviction of sentence till disposal of the case. JUDGE Comparing Assistant