Page No.# 1/6 GAHC010125562024 2026:GAU-AS:1220-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/601/2024 BABLU KHAN @ MD BABUL KHAN AND ANR S/O LATE BADAR ALI KHAN RESIDENT OF KOKILA PART II, PS ABHAYAPURI, DIST BONGAIGAON, ASSAM 2: MOHAR ALI KHAN @ MD. MAHAR KHAN S/O LATE BADAR ALI KHAN RESIDENT OF KOKILA PART II PS ABHAYAPURI DIST BONGAIGAON ASSA VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM 2:NAZMUL KHAN S/O LATE BATEN KHAN RESIDENT OF KOKILA PART II PS ABHAYAPURI DIST BONGAIGAON ASSA Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A AHMED,MR. I U CHOWDHURY,MS R DEKA Advocate for the Respondent : PP, ASSAM, Page No.# 2/6 Linked Case : Crl.A./200/2024 BABLU KHAN @ MD BABUL KHAN AND ANR S/O LATE BADAR ALI KHAN RESIDENT OF KOKILA PART II PS ABHAYAPURI DIST BONGAIGAON ASSAM 2: MOHAR ALI KHAN @ MD. MAHAR KHAN S/O LATE BADAR ALI KHAN RESIDENT OF KOKILA PART II PS ABHAYAPURI DIST BONGAIGAON ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM 2:NAZMUL KHAN S/O LATE BATEN KHAN RESIDENT OF KOKILA PART II PS ABHAYAPURI DIST BONGAIGAON ASSAM ------------ Advocate for : MR H R A CHOUDHURY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI ORDER Date : 30.01.2026 (Kaushik Goswami, J) Heard Mr. H.R.A. Choudhury, learned counsel appearing for the applicants and Ms. A. Begum, learned Additional Public Prosecutor, Assam, appearing for the State respondent. Page No.# 3/6 2. By way of this interlocutory application, filed under Section 389 of the Code of Criminal Procedure,1973 (hereinafter referred to as the “Cr.P.C.”), the applicants, i.e., Bablu Khan @ Md. Babul Khan and Mohar Ali Khan @ Md. Mahar Khan, are seeking suspension of the impugned conviction and sentence order dated 07.06.2024, passed by the learned Additional Sessions Judge (FTC), North Salmara, Abhayapuri (hereinafter referred to as the “trial court”), in Sessions Case No. 22 (A)/2016, whereby the applicants were convicted under Section 302/34 of the Indian Penal Code (hereinafter referred to as the “IPC”) and sentenced thereof to undergo rigorous imprisonment for life each and to pay a fine of Rs. 50,000/- (rupees fifty thousand only) each for the commission of the offence punishable under Section 302/34 of the IPC, and to release them on bail during the pendency of the connected criminal appeal (Crl.A./200/2024). 3. Mr. H. R. A. Choudhury, learned senior counsel appearing for the applicants, submits that material contradictions exist in the prosecution case. It is contended that though PW-1 (Nazmul Haque), PW-3 (Mustt. Kulsum Khatoon), PW-4 (Md. Abdur Rahem), PW-7 (Sarfan Ali), and PW-14 (Dr. Sushanta Bhattacharjee) supported the prosecution version that the accused/applicants assaulted the deceased, resulting in his death, several other witnesses, namely PW-6 (Mustt. Aklima Khatoon), PW-8 (Maleka Khatoon), PW-9 (Tarabanu), PW-10 (Musstt. Basatun Nessa) and PW-11 (Kulsum Bew) supported the defence version that during an altercation the deceased himself had gone to fetch a knife and while returning struck against a betel-nut tree and fell, resulting in death. On this basis it is argued that the conviction is debatable and Page No.# 4/6 the sentence deserves to be suspended. 4. Ms. A. Begum, learned Additional Public Prosecutor, on the other hand, opposes the prayer, contending that the trial court has recorded a well-reasoned judgment based on reliable ocular evidence corroborated by medical evidence, and no exceptional circumstance exists to justify suspension of sentence in a case of murder. 5. I have given my prudent considerations to the arguments advanced by the learned counsels for both the contending parties and have also perused the material available on record. 6. The power under Section 389 of the Cr.P.C., to suspend sentence after conviction is to be exercised cautiously. At this stage the court is not required to reappreciate the entire evidence as in a final hearing of the appeal but only to examine whether, prima facie, the conviction appears so infirm that continued incarceration would be unjust. 7. In the present case the conviction rests on the consistent ocular version of four witnesses (PW-1, PW-3, PW-4, and PW-7) who have categorically deposed to the effect that there was an altercation between the accused/applicants and their brother, i.e., the deceased, for which the accused/applicant No. 1 punched the deceased while the accused/applicant No. 2 squeezed the deceased’s neck and that while the deceased managed to run, the accused/applicant No. 2 inflicted a blow with a lathi on the rear side of the deceased’s neck and head and also in the chest, as a result of which he fell down and died. Their presence at the spot has also not been dislodged. That apart, the aforesaid ocular version is further corroborated by the post-mortem Page No.# 5/6 examination report. 8. The defence version emerging from PW-6, PW-8, PW-9, PW-10, and PW-11 is that the deceased sustained injuries after colliding with a betel-nut tree while allegedly carrying a knife. However, the post- mortem report assumes great significance. The medical evidence records multiple bruises on different parts of the body, which is inconsistent with a simple fall against a tree. The nature and distribution of injuries lend assurance to the prosecution case of assault and substantially weaken the alternative theory suggested by the defence. 9. Thus, at this stage the medical evidence provides strong corroboration to the prosecution eye witnesses’ account and prima facie rules out accidental fall as the sole cause of death. 10. It is also of considerable significance that the applicants stand convicted for an offence under Section 302/34 of the IPC and have been sentenced to rigorous imprisonment for life. The sentence imposed is not of a short or determinate duration but imprisonment for life, reflecting the seriousness of the crime established by the trial court. In cases involving conviction for murder and imposition of life sentence, suspension of sentence cannot be granted as a matter of routine and is permissible only where the conviction appears prima facie to suffer from glaring infirmities or where exceptional circumstances are shown. No such circumstance is made out in the present case. Page No.# 6/6 11. The contradictions pointed out by the applicants relate to appreciation of evidence, which will be examined in detail at the stage of the final hearing of the appeal. At present, the court does not find any prima facie perversity in the findings recorded by the trial court so as to justify suspension of sentence. 12. In view of the nature of the accusation, the manner of assault, the corroborative medical evidence, and the gravity of the offence, we are not inclined to exercise discretion under Section 389 of the Cr.P.C. 13. Accordingly, the instant application for suspension of execution of the sentence passed against the accused/applicants and for his release on bail stands rejected. 14. It is needless to clarify that the observations made hereinabove are only for the purpose of considering the accused/applicants’ prayer for suspension of execution of the sentence passed against them and for their release on bail, and such observations shall not have any bearing on the merits of the accompanying criminal appeal. JUDGE Comparing Assistant