ORDER

28.11.2024 Heard Mr. N. Hasan, learned counsel for the applicant. Also heard Mr. M. P.

Goswami, learned Additional Public Prosecutor for State respondent No.1 and Mr. S. Saikia, learned counsel for the respondent No.2.

2. This interlocutory application is filed under Section 389 of the Code of Criminal Procedure, 1973, praying for a stay of the operation of the impugned Judgment and Order dated 17.02.2024, passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia, in Sessions Case No. 101(T)/2023 and to allow the applicants to be released on bail.

3. It is submitted by the learned counsel for the petitioner, Mr. Hasan, that the present applicants were convicted under Section 370 of the IPC and sentenced to undergo simple imprisonment (in short, ‘S.I.’) for 10 (ten) years, along with a fine of Rs. 10,000/- (Rupees ten thousand) only, and in default, to suffer S.I. for another 6 (six) months. From the charge framed by the learned Additional Sessions Judge No. 2 (FTC), it is seen that the charge was framed against applicant No. 1, namely Shyam Lakhuwa @ Paglu, under Section 363 of the IPC, and without any alteration of the charge, he was convicted under Section 370 of the IPC without being given an opportunity of hearing regarding the alteration of the charge. However, applicant No. 2 was charged under Section 370 of the IPC and was accordingly convicted under the said section of law.

4. He further submits that the conviction was passed solely on the basis of the evidence of P.W.3, while P.W. Nos. 1 and 2 did not support the prosecution’s case; rather, in their cross-examination, they stated before the court that they had no objection if the applicants were acquitted in this case. Thus, the applicants were convicted solely on the basis of the allegations made by P.W.3. He further submits that the IO and other material witnesses were not examined by the prosecution, and thus, the present applicants did not have the chance to contradict the evidence of P.W.3.

5. He also submits that only the statement of P.W.3 recorded under Section 164 of the Cr.P.C. was exhibited, but the FIR, charge framed, medical documents, etc., were not exhibited by the prosecution during the trial. Accordingly, he submits that there is a strong chance of acquittal in this case, and he prays for the release of the applicants, who are still detained in jail, i.e., applicant No. 1 for 404 days and applicant No. 2 for 403 days, by suspending the conviction imposed upon them until the disposal of the connected Criminal Appeal, being Crl.A Case No. 106/2024.

6. In support of his submission, he relies on the decision passed by the Hon’ble Apex Court in the case of Omprakash Sahni vs. Jai Shankar Chaudhary & Anr., reported in (2023) SCC 123, wherein in paragraph 33 of the said judgment, it has been held that;

“33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal………..

7. On the other hand, Mr. Goswami, learned Additional Public Prosecutor has submitted that the P.W.3 has brought clear allegation against the accused/applicants including one Keshar Proja @ Shekhar. It is very evident from the testimony of P.W.3 that both the victims were taken to Tezu, Arunachal Pradesh for labour work and on the basis of the said evidence of the P.W.3, the order of conviction was passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia.

8. He further sub