Page No.# 1/7 GAHC010016822025 2025:GAU-AS:12887 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/97/2025 NILUTPAL BORAH @ LAKHI @ LAKI S/O SRI ARUN CHANDRA BORAH, RESIDENT OF LOONPURIA KOIBARTA GAON, PANITOLA, PS AND DIST TINSUKIA ASSAM VERSUS THE STATE OF ASAM AND ANR REPRESENTED BY PP ASSAM 2:JAMINI KALITA W/O SRI JAMINI KALITA RESIDENT OF VILLAGE BAM PARBATIA ROHUMORA CHUBURI PO AND PS TEZPUR DIST SONITPUR ASSAM 78400 Advocate for the Petitioner : MR. N HASAN, MR. A HASAN,MR. I K BURAGOHAIN Advocate for the Respondent : PP, ASSAM, Linked Case : Crl.A./36/2025 NILUTPAL BORAH @ LAKHI @ LAKI S/O SRI ARUN CHANDRA BORAH RESIDENT OF LOONPURIA KOIBARTA GAON PANITOLA Page No.# 2/7 PS AND DIST TINSUKIA ASSAM VERSUS THE STATE OF ASAM AND ANR REPRESENTED BY PP ASSAM 2:JAMINI KALITA W/O SRI JAMINI KALITA RESIDENT OF VILLAGE BAM PARBATIA ROHUMORA CHUBURI PO AND PS TEZPUR DIST SONITPUR ASSAM 784001 ------------ Advocate for : MR. N HASAN Advocate for : PP ASSAM appearing for THE STATE OF ASAM AND ANR BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Date : 18.09.2025 Heard Mr. M. Hasan, learned counsel for the application; Mr. P. Barthakur, learned Additional Public Prosecutor/respondent No.1 and also Mr. S. Nawaz, learned counsel for the mother of the victim/informant of the case who impleaded as respondent No. 2. 2. This application has been filed under Section 430(1) BNSS for suspending sentence and bail of the applicant who was convicted and sentenced vide judgment and order dated 27.11.2024 passed by the learned Additional District and Sessions Judge (FTC-2), Tinsukia, in Sessions Case No. 05(T)/2019. 3. The applicant has filed criminal appeal against his conviction and sentence Page No.# 3/7 being Criminal Appeal No. 36/2025 which has been admitted and has joined the queue for hearing before the Single Bench of this Court. By the impugned judgment and order, the convict appellant was convicted under Section 307/498 A IPC. For conviction Section 307 IPC, he was sentenced to undergo R/I for five years and fine of Rs. 4,000/- (i/d R/I for three months). Further for conviction under Section 498A IPC, he was sentenced to undergone R/I for 1(one) year and pay of fine of Rs.1,000/- (i/d R/I for one month). Both the sentences were directed to run concurrently. 4. The learned counsel for the applicant submits that so far, the applicant has undergone detention of 392 days and seeks bail at this stage. In support of his contention, the learned counsel for the petitioner has placed before this court a judgment of the Hon’ble Supreme Court in Kiran Kumar vs. State of M.P., reported in (2001) 9 SCC 211. 5. The relevant para 3, wherein reference to another judgment on the subject was made may be reproduced herein below – “This Court has held in Bhagwan Rama Shinde Gosai 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 appellant could should suspend the sentence, if its consequence would be a danger to the society or any other Page No.# 4/7 similar difficulties.” 6. The learned Additional Public Prosecutor for the State objecting to prayer for bail, submits that there is no apparent infirmity in the impugned judgment and order and therefore, considering the nature of the offence also, the bail may not be considered at this stage. 7. Mr. Nawaz, learned counsel for the respondent No. 2/informant has taken the Court through some portions of the impugned judgment, especially the testimony of the victim who is the wife of the convict appellant. It is submitted that the informant and the victim have cogently testified regarding the offences during the trial and it is duly corroborated by the medical evidence and that therefore, on the merits of the matter, the prosecution has a good case for upholding the impugned judgment and order. Upon a query by the court, it is submitted by the learned counsel for the respondent No. 2 that at present the victim/woman is staying in her parental house. 8. An adjudication regarding suspension of sentence and bail in a criminal appeal, especially when the sentence is above three years would involve a greater exercise of balancing of competing interests. The approximate time that might be taken in disposal of the appeal is one of the factors and the infirmities in the judgment if any, on the face of it would perhaps be another important factor to look at. Nevertheless, the outcome of the appeal would obviously be known only after full hearing on merits. The maximum sentence that the convict appellant has been directed to undergone is five years, as the sentences are concurrent. The applicant is stated to undergo detention for more than a year as of now. Page No.# 5/7 9. The Criminal Appeal being 01/2025 has just joined the queue for hearing before the single bench criminal appeal. There might not be immediate possibility of hearing and adjudication of the appeal in the normal course, as many other such criminal appeals, including several older cases are already in the queue for hearing. 10. In the aforesaid decision of Kiran Kumar(supra), the Hon’ble Supreme Court has indicated that in short-term sentences, usually the sentence should be suspended and departure would be justified, if the consequences of suspending the sentence would be a danger to the society and any other similar difficulties. 11. In the present case, sentence of five years can perhaps be taken as a medium term sentence. Generally speaking, if a convict appellant undergoes the whole or substantial part of the sentence before his appeal is adjudicated, resulting in an acquittal – there such a situation would be violative of the constitutional rights under Article 21 of the Constitution of India and such a situation also damages the credibility of the criminal justice system. 12. Considering the docket explosion, even in this Court; –such aspect of the matter has also been kept in mind, while considering the question of suspension of sentence. 13. In the given facts and circumstances and in the backdrop of the above discussion – I come to the considered opinion that subject to suitable conditions to ensure availability of the convict appellant and prevention of any harm to the victim – perhaps the convict appellant can be enlarged on bail in this case. In such view of the matter, without further going into the merit of the case, prayer Page No.# 6/7 of the applicant is allowed, subject to suitable conditions. 14. The Execution of order of sentence dated 27.11.2024 passed by the learned Additional District and Sessions Judge (FTC-2), Tinsukia, in Sessions Case No. 05(T)/2019, shall stand suspended till disposal of appeal and accordingly, the applicant, namely Nilutpal Borah @ Lakhi @ Laki Swargiary, shall be released on bail on Rs. 50,000/- with one surety of the like amount, to the satisfaction of the learned trial court. Further the following conditions are imposed – (i) The applicant shall not abscond; (ii) That the applicant shall be available to receive the appellate judgment; (iii) The applicant shall appear before the learned trial court once in two months; (iv) The learned trial court shall be at liberty to fix specific dates for the same and also modify the time frame fixed; (v) The applicant shall not in any manner cause any harm to the informant or the victim; (vi) The applicant shall not cause any harassment or harm to any of the witnesses who might have adduced evidence during the trial; 15. In case of any violation of the bail conditions, the learned prosecution or informant side shall be at liberty to seek cancellation of the bail. Page No.# 7/7 16. Nothing in this order shall be construed as an expression of opinion on the merits of the pending criminal appeal. 17. In view of the above, interlocutory application stands allowed and disposed of. JUDGE Comparing Assistant