Jyotirmoy Das @ Sona Das vs The State Of Assam
2021 Latest Caselaw 3237 Gua

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GAHC010185912021




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

                                 Case No. : I.A.(Crl.)/501/2021

            JYOTIRMOY DAS @ SONA DAS
            S/O LATE ATUL CH. DAS, R/O KAITHALKUCHI (LAUARAPARA), P.O.-
            KAITHALKUCHI, P.S.-BELSOR, DIST- NALBARI, ASSAM, PIN-781370



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. T DEURI

Advocate for the Respondent : PP, ASSAM




             Linked Case : Crl.A./188/2021

            JYOTIRMOY DAS @ SONA DAS
            S/O LATE ATUL CH. DAS
             R/O KAITHALKUCHI (LAUARAPARA)
             P.O.-KAITHALKUCHI
             P.S.-BELSOR
             DIST- NALBARI
             ASSAM
             PIN-781370


             VERSUS
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           THE STATE OF ASSAM
           REPRESENTED BY THE PUBLIC PROSECUTOR
           ASSAM


           ------------
           Advocate for : MR. T DEURI
           Advocate for : PP
           ASSAM appearing for THE STATE OF ASSAM



                                      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. T. Deuri, learned counsel for the applicant. 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 applicant, Jyotirmoy Das @ Sona Das, along with 15 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 applicant has 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 applicant submits that evidence on record is not sufficient to convict the applicant. His conviction is based on the testimonies of the PW-18, PW-19 and PW-20, who had not seen the occurrence. According Page No.# 3/5

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 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. Deuri, the evidence adduced by the prosecution witnesses is full of contradictions, omissions, exaggerations and improvements. The Counsel Further submits that the conviction of the appellant 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. Zahan, this is not a fit case to grant bail to the applicant.

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, Page No.# 4/5

he expired during the trial before his evidence could be recorded.

We also find that the learned trial court has apparently not recorded any 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 applicant has made out a prima facie case to consider his prayer for release on bail.

We, accordingly, direct that the applicant, i.e. Jyotirmoy Das @ Sona Das, be released on bail on furnishing bond of Rs. 30,000/- and one surety of like amount to the satisfaction of the learned Sessions Judge, Nalbari.

We also make it clear that the applicant shall appear before the learned court below every fortnightly and he 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.

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JUDGE JUDGE

Comparing Assistant