Page No.# 1/5 vs The State Of Assam And 2 Ors
2021 Latest Caselaw 3222 Gua

                                                                 Page No.# 1/5

GAHC010192362021




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

                         Case No. : I.A.(Crl.)/513/2021

         DHARANIDHAR HALOI AND ANR.
         S/O LATE JATALU HALOI, R/O VILL-KATHULKUCHI, P.O.-KATHULKUCHI,
         P.S.-BELSOR, PIN-781370, DIST-NALBARI, ASSAM

         2: ARABINDA HALOI
          S/O LATE JOGENDRA HALOI
          R/O VILL-KATHULKUCHI
          P.O.-KATHULKUCHI
          P.S.-BELSOR
          PIN-781370
          DIST-NALBARI
         ASSA

         VERSUS

         THE STATE OF ASSAM AND 2 ORS.
         REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

         2:DHANMONI HALOI (DECEASED)
          S/O LATE MAHESH HALOI
          R/O VILL-KATHULKUCHI
          P.O.-KATHULKUCHI
          P.S.-BELSOR
          PIN-781370
          DIST-NALBARI
         ASSAM

         3:UTTARA HALOI
         W/O LATE MAHESWAR HALOI
          R/O VILL- NALAPARA
          P.S.-FATASIL AMBARI
          DIST- KAMRUP(M)
         ASSA
                                                    Page No.# 2/5

Advocate for the Petitioner   : MR. A M BORA

Advocate for the Respondent : PP, ASSAM




             Linked Case : Crl.A./193/2021

            DHARANIDHAR HALOI AND ANR.
            S/O LATE JATALU HALOI
            R/O VILL-KATHULKUCHI
            P.O.-KATHULKUCHI
            P.S.-BELSOR
            PIN-781370
            DIST-NALBARI
            ASSAM

            2: ARABINDA HALOI
            S/O LATE JOGENDRA HALOI
             R/O VILL-KATHULKUCHI
             P.O.-KATHULKUCHI
             P.S.-BELSOR
             PIN-781370
             DIST-NALBARI
            ASSAM
            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            REPRESENTED BY THE PUBLIC PROSECUTOR
            ASSAM

            2:DHANMONI HALOI (DECEASED)
            S/O LATE MAHESH HALOI
             R/O VILL-KATHULKUCHI
             P.O.-KATHULKUCHI
             P.S.-BELSOR
             PIN-781370
             DIST-NALBARI
            ASSAM
             3:UTTARA HALOI
            W/O LATE MAHESWAR HALOI
             R/O VILL- NALAPARA
             P.S.-FATASIL AMBARI
             DIST- KAMRUP(M)
            ASSAM
             ------------
                                                                      Page No.# 3/5

          Advocate for : MR. A M BORA
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM AND 2 ORS.



                                     BEFORE
                    THE HON'BLE MR JUSTICE SUMAN SHYAM
                THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
                                 ORDER

01.12.2021 (A. D. Choudhury. J)

Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A. Choudhury, learned counsel for the applicants. We have also heard Ms. S. Zahan, learned Addl. P.P. Assam appearing for the State.

By the impugned judgment dated 04.10.2021 passed by the learned Sessions Judge, Nalbari in connection with Sessions Case No. 62/2012, the applicants i.e. (1) Dharanidhar Haloi and (2) Arabinda Haloi, along with other accused persons was convicted under Sections 147/447/323/302/149 IPC for committing murder of the deceased Mahesh Haloi and sentenced to undergo Rigorous Imprisonment for life and also pay fine of Rs. 20,000/-. The applicants have been in jail since the date of the aforesaid judgment and order dated 04.10.2021. Accordingly, this bail application has been filed.

The Learned counsel for the applicants submits that evidence on record is not sufficient to convict the applicants. Their conviction is based on the testimonies of the PW-18, PW-19 and PW-20, who had not seen the occurrence. According to the learned Counsel, the said witnesses who are the family members of the victim, had deposed on the basis of information gathered from the informant and therefore, their testimonies ought not to have been Page No.# 4/5

relied upon without corroboration by independent witness. The Counsel further argues that learned Trial Court ought not to have relied on the statement of the informant recorded under Section 164 of the Cr.P.C. since it is not a piece of substantive evidence. Moreover, submits Mr. Bora, the evidence adduced by the prosecution witnesses is full of contradictions, omissions, exaggerations and improvements. The Counsel Further submits that the conviction of the appellants with the aid of section 149 IPC would not be sustainable in the eye of law inasmuch as there is no finding of the learned trial court as regards common object of unlawful assembly to cause death to the Victim.

Opposing such submissions, Ms. Zahan, learned Add.P.P., Assam has urged that there is sufficient evidences to convict the accused. The statement of the informant recorded under Section 164 Cr.P.C. had been corroborated by the PW18 and PW19, and therefore, such statement recorded under section 164 Cr.P.C. can be relied upon for conviction. The circumstantial evidence adduced by the prosecution has proved the changes beyond reasonable doubt. According to Ms. Jahan, this is not a fit case to grant bail to the applicants.

In order to appreciate the submissions of the learned counsels for the parties, we have carefully gone through the impugned judgment and the material available on record.

From the testimony of PW-18, PW-19 and PW-20, we find that they did not see the occurrence. Though, the informant, according to his statement recorded under section 164 Cr.P.C., was present at the place of occurrence, unfortunately, he expired during the trial before his evidence could be recorded.

We also find that the learned trial court has apparently not recorded any Page No.# 5/5

specific finding on the common object of the unlawful assembly to cause death to the victim. Although there are some contradictions and improvements in the testimony of the prosecution witnesses, whether such contradictions/improvements would ultimately cause a dent in the prosecution case is a matter that can be gone into during the final hearing of the appeal.

Having regard to the nature of evidence and also the overall facts and circumstances of the case, we are of the view that the applicants have made out a prima facie case to consider their prayer for release on bail.

We, accordingly, direct that the applicants, i.e (1) Dharanidhar Haloi and (2) Arabinda Haloi be released on bail on furnishing bond of Rs. 30,000/- each and one surety of like amount to the satisfaction of the learned Sessions Judge, Nalbari.

We also make it clear that the applicants shall appear before the learned court below every fortnightly and they shall not leave the jurisdiction of the District and Sessions Judge, Nalbari, without prior permission. Violation of the above conditions may lead to cancellation of the bail.

Before concluding, we make it clear that the observations made hereinabove, are for the limited purpose of disposing of this bail application and the same shall not have any bearing on the merit of the case during final hearing of the connected appeal.

With the above observation, this bail application stands disposed of.

               JUDGE                             JUDGE


Comparing Assistant