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2020 DIGILAW 484 (GAU)

Rajib Bordoloi v. State Of Assam

2020-05-14

MANISH CHOUDHURY

body2020
JUDGMENT 1. Heard Ms. M.D. Medhi, learned counsel for the applicant-appellant and Mr. B.B. Gogoi, learned Additional Public Prosecutor for opposite party no. 1, State of Assam. 2. This application is filed by the applicant-appellant under Section 389, Code of Criminal Procedure, 1973 (CrPC) seeking suspension of the execution of the sentence passed against him by the learned trial Court and for his release on bail. 3. By the judgment and order dated 01.11.2019 impugned in the connected appeal, Crl.A. No. 450/2019, the learned trial Court of Additional District and Sessions Judge, FTC, Nagaon in Sessions (T2) Case No. 129(N)/2009 has found the applicant-appellant guilty of the offences under Sections 376(1)/366/323, Indian Penal Code (IPC). 4. For the offence under Section 376(1), IPC, the applicant-appellant has been sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs. 5,000/-, in default of payment of fine, to undergo rigorous imprisonment for another 3 (three) months. In respect of the offence under Section 366, IPC, the applicant-appellant has been sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 2,000/-, in default of payment of fine, to undergo rigorous imprisonment for another 2 (two) months. Additionally, the applicant-appellant has been sentenced to undergo rigorous imprisonment for 6 (six) months under Section 323, IPC. All the sentences are to run concurrently. 5. Ms. Medhi, learned counsel for the applicant-appellant has strenuously argued that the First Information Report (FIR) (Ext.-1) was lodged by the informant (P.W.2) with delay without any explanation on his part. She has further submitted that from the evidence of P.W.2, it is apparent that he had filed an FIR earlier but the same was not brought on record. It is further submitted by her that if the evidence of the victim (P.W.3) is perused, it is apparent that she was a major at the time of the incident and she had gone out with the applicant-appellant voluntarily. 6. On the other hand, Mr. Gogoi has referred to the FIR (Ext.-1) as well as the statement of the victim recorded under Section 164, CrPC (Ext.-2). He has heavily relied on the Medical Report (Ext.-3) as well as the deposition of the victim (P.W.3). 7. I have considered the submissions of the learned counsel for the parties and also perused the materials available in the case record of Sessions Case No. 129/2019. 8. He has heavily relied on the Medical Report (Ext.-3) as well as the deposition of the victim (P.W.3). 7. I have considered the submissions of the learned counsel for the parties and also perused the materials available in the case record of Sessions Case No. 129/2019. 8. From the Medical Report (Ext.-3), it transpires that when the victim (P.W.3) was examined on 31.10.2008, a number of injuries were found on her person. As per the FIR lodged by the informant (P.W.2), the victim had returned home on 26.10.2008 and she was immediately admitted in Civil Hospital. She was being treated in the hospital at the time of lodging the FIR on 30.10.2018. The victim was apparently missing from her home since 23.10.2018. The informant had explained the delay for lodging the FIR at a later date. 9. From a reading of the statement of the victim recorded under Section 164, CrPC (Ext.-2) and her evidence before the Court as P.W.3, a prima facie view cannot be taken as regards embellishments on material points. In such view of the matter, I am of the prima facie view that the prayer for suspension of the execution of the sentence against the applicant- appellant does not merit consideration at this stage. 10. In such view of the matter, this application filed by the applicant-appellant under Section 389, CrPC is not entertained. 11. Accordingly, the same is dismissed.