Utsab Das vs The State Of Assam
2021 Latest Caselaw 1769 Gua

                                                                                   Page No.# 1/3

GAHC010039992021




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : I.A.(Crl.)/137/2021

            UTSAB DAS
            S/O- SRI NARAKANTA DAS, R/O- PATBAUSI NASATRA, P.O. AND P.S.
            BARPETA, DIST.- BARPETA, ASSAM.

            VERSUS

            THE STATE OF ASSAM
            REP. BY PUBLIC PROSECUTOR, ASSAM


Advocate for the Petitioner    : MR N DUTTA

Advocate for the Respondent : PP, ASSAM


                                     BEFORE
                        HONOURABLE MR. JUSTICE SUMAN SHYAM
                        HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                             ORDER

04.08.2021 (Suman Shyam,J) Heard Mr. N. N. B. Choudhury, learned counsel for the applicant. We

have also heard Ms. A. Begum, learned Addl. P.P., Assam, appearing for the

State.

The applicant in this case was convicted under Sections 302/201 of the

I.P.C. and inter-alia sentenced to undergo rigorous imprisonment for life and

also to pay fine of Rs.10,000/- with default clause by the impugned judgment Page No.# 2/3

and order dated 28.01.201 passed by the learned Sessions Judge, Barpeta in

connection with Sessions Case No.85/2017. Since then he is in jail.

By filing this application under Section 389 Cr.P.C. the applicant has

prayed for suspension of his jail sentence and to allow him to go on bail during

the pendency of the appeal.

By referring to the materials available on record, Mr. N. N. B. Choudhury,

learned counsel for the applicant, has argued that there is no eye-witness in this

case and the prosecution case is entirely based on circumstantial evidence. He

submits that the prosecution has failed to establish the charge brought against

the applicant beyond reasonable doubt by means of circumstantial evidence.

Mr. Choudhury further submits that neither the recovery of the dead body on

being led by the accused been proved as per the requirement of Section 27 of

the Indian Evidence Act, 1872 nor has the prosecution succeeded in bringing

evidence on record establishing the complicity of the applicant in

commissioning the crime. Moreover, submits Mr. Choudhury, the alleged

confession made by the applicant/accused before the police without the

presence of a Magistrate, has been illegally relied upon for the purpose of

convicting the applicant. It is also the argument of Mr. Choudhury that based

on the same set of evidence, a co-accused viz. Bijoy Das, has been acquitted

by the learned trial court by giving him the benefit of doubt and therefore,

similar treatment was liable to be meted out to the applicant in this case as

well.

The State has filed written objection opposing the prayer made by the

applicant. Ms. A. Begum, learned Addl. P.P., submits that the guilt of the

applicant flows from the 161 Cr.P.C. statement of the witnesses whhich are Page No.# 3/3

available on record. The learned Addl. P.P. has, however, fairly submitted that

the statement recorded under Section 161 Cr.,P.C. would not have any

evidentiary value and therefore, cannot be reliedupon for conviction of the

accused. The other aspects of the matter, according to the learned Addl. P.P.,

can be gone into during the stage of final hearing of the appeal.

After hearing the submissions of learned counsel for the parties and upon

going through the materials available on record we are of the prima-facie view

that the applicant's counsel has made out a strong case for releasing the

applicant on bail. Having regard to the facts and circumstances of the case,

the question as to whether benefit of doubt would go in favour of the applicant

in this case would require deeper consideration by this Court at the stage of

hearing. Situated thus, we are of the view that the applicant deserves to be

released on bail during the pendency of the appeal.

We, accordingly, direct that the applicant Utsab Das be released on bail

on furnishing a bond of Rs.30,000/- and one local surety to the satisfaction of the

learned Sessions Judge, Barpeta subject further to any other condition that may

be imposed by the learned Sessions Judge for the release of the applicant.

We, however, make it clear that our observations made herein before

are only tentative in nature and meant for the limited purpose of disposal of this

I.A.

The I.A. stands disposed of accordingly.

                                          JUDGE                        JUDGE


Comparing Assistant