Gauhati High Court
Page No.# 1/7 vs Page No.# 3/7 on 1 April, 2021
Page No.# 1/7
GAHC010116702019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/407/2019
RANJAN DAIMARI @ D.R. NABLA @ LASDUM @ LOUDUM AND 9 ORS
S/O- LATE STEPHEN DAIMARI, R/O- VILL.- ADALA KAHIBARI, P.S.
HARISINGA, DIST.- UDALGURI, ASSAM, PIN- 784510.
2: GEORGE BORO @ JOHN @ JWANKHANG
S/O- SHRI JOGENDRA NATH BORO
R/O- MISSION ROAD
DOWN TOWN
P.S. BARPETA ROAD
DIST.- BARPETA
ASSAM
PIN- 781301.
3: AJAY BASUMATARY @ B. AOGAI
S/O- LATE SWAUN BASUMATARY
R/O- VILL.- DILAGIMITHIFANG
P.S. DIPHU
DIST.- KARBI ANGLONG
ASSAM
PIN- 782460.
4: KHGARGESWAR BASUMATARY @ RAHUL BRAHMA @ KHARAMSWAR
S/O- SRI KHAGEN BASUMATARY
R/O- VILL.- PUB NAOKATA (KHAIRAJHAR)
P.S. GORESWAR
DIST.- BAKSA
ASSAM
PIN- 781366.
5: RAJENDRA GOYARI @ RAJEN @ RIFIKHANG
S/O- SRI KANTESWAR GOYARI
R/O- VILL.- KHAGRABARI
P.S. GOBARDHANA
DIST.- BAKSA
Page No.# 2/7
ASSAM
PIN- 781315.
6: ONSAI BORO @ AJIT BORO
S/O- SRI GANGADHAR BORO
R/O- VILL.- SHANTIPUR
SALBARI
P.S. SALBARI
DIST.- BAKSA
ASSAM
PIN- 781372.
7: INDRA BRAHMA
S/O- LATE SAILENDRA BRAHMA
R/O- VILL.- PADMAPUR
P.S. SIDLI
DIST.- CHIRANG
ASSAM
PIN- 783373.
8: BAISAGI BASUMATARY @ B. BITHURAI
D/O- LATE GAOJAO BASUMATARY
R/O- VILL.- SONSALI
P.S. BARBORI
DIST.- BAKSA
ASSAM
PIN- 781318.
9: LOKHRA BASUMATARY @ LOBO
S/O- SRI MAGUR BASUMATARY
R/O- VILL.- KAMARPARA
P.S. KACHUGAON
DIST.- KOKRAJHAR
ASSAM
PIN- 783350.
10: RAJU SARKAR
S/O- LATE SUNIL SARKAR
R/O- VILL.- TANGLA
PASCHIM NALBARI
P.S. TANGLA
DIST.- UDALGURI
ASSAM
PIN- 784521
VERSUS
Page No.# 3/7
THE CENTRAL BUREAU OF INVESTIGATION
REP. BY THE STATNDING COUNSEL, CBI.
Advocate for the Petitioner : MR. A K BHATTACHARJEE
Advocate for the Respondent : SC, CBI
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
01.04.2021
Suman Shyam, J.
Heard Mr. A. K. Bhattacharyya, learned senior counsel assisted by Mr. M.
Sarania, learned counsel appearing for the applicants. We have also heard Mr.
S. C. Keyal, learned counsel representing the respondent/CBI.
By filing this application under Section 389 of the Cr.P.C. the 10
applicants have approached this Court with a prayer for suspension of their
sentence awarded by the judgment dated 28.01.2019 and order dated
31.01.2019 passed by the learned Special Judge, CBI, in Sessions Case No.59(K)
of 2011. By the impugned judgment and order the applicants have been
convicted under Sections 120B, 302, 326, 324, 435, 436 IPC read with Sections
3(b) and 4(a)(b)(ii) of the Explosive Substances Act, 1908 as well as Sections 10,
10(b)(i), 13, 16, 16(1)(a) and 20 of the Unlawful Activities (Prevention) Act, 1967.
Accordingly, the applicant Nos.1 to 6, 9 & 10 have been sentenced to inter-alia
undergo rigorous imprisonment for life. From the impugned judgment dated
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28.01.2019 and order dated 31.01.2019 it is, however, not clear as the nature of
sentence awarded to the applicant Nos.7 and 8 herein.
The applicants as appellants have assailed the judgment dated
28.01.2019 and order dated 31.01.2019 passed by the learned Special Judge,
CBI, by filing Criminal Appeal No.195/2019 which is pending disposal before this
Court. During the pendency of the aforesaid appeal, the applicants have
approached this Court by filing the instant application seeking their release on
bail.
By referring to the impugned judgment Mr. Bhattacharyya, learned
senior counsel appearing for the applicants, has argued that there is no
evidence available on record so as to sustain the conviction of the applicants.
Mr. Bhattacharyya has also argued that adverse presumption has been drawn
by the learned trial court against the accused persons due to the silence
maintained by them and/or refusing to answer questions posed while recording
their statement under Section 313 Cr.P.C. That apart, the learned senior counsel
has argued that the confession of a co-accused ought not to have been relied
upon by the learned court below for convicting the applicants. Urging that the
applicants have been in Jail for a considerable period of time and there is no
possibility of the connected appeal being heard in the near future, Mr.
Bhattacharyya has prayed for releasing them on bail.
Opposing the said prayer, Mr. Keyal submits that the conspiracy hatched
by the applicants for causing serial bomb blasts in various places in Assam has
been established by cogent evidence brought on record and therefore, this is
not a fit case for granting bail. Mr. Keyal has, however, submitted that he would
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not have any objection if the appeal is heard expeditiously.
We have considered the submissions made by the learned counsel for
both the sides and have gone through the materials available on record.
After going through the impugned judgment and order passed by the
learned Special Judge, we find that the conviction of the appellants/
applicants is on the basis of circumstantial evidence whereby the learned Court
below has relied upon the confessional statement made by the applicant No.3,
Ajay Basumatary, implicating the applicant Nos.1, 2, 4, 5 and another
absconding accused in a conspiracy that was hatched to cause the serial
bomb explosions on 30.10.2008. The confession of the applicant No.3 prima-
facie appears to be inculpatory in nature and has been relied upon so as to
establish the charge brought under Section 120B of the IPC. In the confessional
statement the applicant No.3 has, however, not implicated the other accused
persons.
Since the serial bomb explosions has been found to have been carried
out in terms of a criminal conspiracy hatched by the five applicants, it is evident
that unless the charge brought under Section 120B IPC is found to have been
proved beyond reasonable doubt, based on cogent evidence, the conviction
of those accused persons may not be sustainable. However, whether the
confessional statement of applicant No.3 can be treated to be admissible in
evidence in the light of Sections 10 and 30 of the Evidence Act, is a matter that
can be examined only during the final hearing of the appeal. As such, we are
not inclined to consider the bail prayer of the applicant Nos.1 to 5 at this stage.
However, on an appreciation of the materials available on record and
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taking note of the period of detention stated to have been undergone by the
applicant Nos.6 to 10, we allow their prayer to go on bail.
It is, therefore, directed that the applicant Nos.6 to 10, viz., 6) Onsai Boro
alias Ajit Boro, 7) Indra Brahma, 8) Baisagi Basumatary alias B. Bithurai, 9) Lokhra
Basumatary alias Lobo and 10) Raju Sarkar, be released on bail on furnishing
bond of Rs.30,000/- each and one surety each of the like amount to the
satisfaction of the learned Special Judge, CBI. As an additional condition for
granting bail, we also direct that the applicant Nos.6 to 10 shall submit their
Passport before the learned trial Court , if not already done, and shall also not
leave the jurisdiction of the learned Special Judge without prior written
permission.
On the last date, we had taken note of the submission of Mr. A. K.
Bhattacharyya, learned senior counsel appearing for the applicants, that his
clients have been languishing in Jail for a considerable period of time and there
is no possibility of the appeal being heard in near future.
By the order dated 24.03.2021, the Registry was directed to verify and
apprise this Court as to the progress made in preparation of Paper Book in the
appeal. Office note dated 26.03.2021 reflects that preparation of Paper Book
(Part-I) consisting of 10 volumes, is already complete and the work of
preparation of Paper Book for Part-II ( 5 volumes) is under progress. As per
projection made in the office note dated 26.03.2021, three weeks time will be
required to prepare all the Volumes of Part-II and to calculate the cost.
Taking note of the above, we grant four weeks time to the Registry to
complete the process of preparation of Paper Book and list the appeal for
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orders so as to fix an early date of hearing.
With the above observation, the I.A. stands disposed of.
JUDGE JUDGE
Comparing Assistant
