Page No.# 1/5 vs The State Of Assam And Anr
2021 Latest Caselaw 3201 Gua

                                                         Page No.# 1/5

GAHC010053942021




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

         Case : I.A.(Crl.)/147/2021

         SONOWAR HUSSAIN AND 2 ORS.
         S/O- LATE ABDUL KARIM FOKIR
         R/O- VILL.- BARBALA
         P.S. HOWLY
         P.O. BARBALA
         DIST.- BARPETA
         ASSAM.

         2: ASHIQUE ALI
         S/O- SONOWAR HUSSAIN
          R/O- VILL.- BARBALA
          P.S. HOWLY
          P.O. BARBALA
          DIST.- BARPETA
         ASSAM.

         3: TOMIJUDDIN
         S/O- SONOWAR HUSSAIN
         R/O- VILL.- BARBALA
         P.S. HOWLY
         P.O. BARBALA
         DIST.- BARPETA
         ASSAM.
         VERSUS

         THE STATE OF ASSAM AND ANR.
         REP. BY P.P. ASSAM

         2:AFZAL HUSSAIN (INFORMANT)
         S/O- LATE NASIRUDDIN
          R/O- VILL.- RAHAMPUR
          P.S. P.O. AND DIST.- BARPETA
         ASSAM
          PIN- 781318.
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           ------------
           Advocate for : MR. N ZAMAN
           Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                 BEFORE
                   HONOURABLE MR. JUSTICE SUMAN SHYAM
                HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                        ORDER

Date : 30-11-2021 Suman Shyam, J

Heard Mr. S.K. Jain, learned counsel for the applicants. We have also heard Ms. B.

Bhuyan, learned Addl. P.P. Assam appearing for the State.

By the impugned judgment and order dated 04-02-2021 passed by the learned

Sessions Judge, Barpeta in connection with Sessions Case No. 117/2014, the three

applicants herein, along with other accused persons were convicted under Sections 302/

149/ 325/ 323 IPC for committing the murder of the deceased Anowar Hussain and

sentenced to undergo rigorous imprisonment for life and also to pay fine. Since then, they

are in jail. This I.A. has been filed with a prayer to release them on bail during the

pendency of the connected appeal.

In support of the prayer made in this I.A., Mr. Jain has argued that there are

material contradictions in the testimony of the PWs and the prosecution witnesses have

also not scribed any specific role to the applicants. Save and except making a general

statement that the accused persons had assaulted the deceased with lathi, no particulars

of the manner in which the alleged assault took place has been furnished by the

prosecution witnesses.

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In view of the above, submits Mr. Jain, having regard to the evidence of the Doctor

(PW-13) who had conducted the postmortem examination on the deceased and has

mentioned about only one injury in the head resulting to the death of the victim, the

conviction of the applicants with the aid of Section 149 IPC, would not be sustainable in

the eye of law, more so, since there is no finding in the impugned judgment based on

evidence available on record that the applicants, forming a part of an unlawful assembly,

with the common object to cause death of the victim, had assaulted him.

Opposing the said submission, Ms. B. Bhuyan, learned Addl. P.P. Assam has argued

that there is no dispute about the fact that the incident took place on 09-11-2011 wherein

the victim was attacked by an assembly of persons constituted by the accused persons.

There is evidence to show that the victim was assaulted by the accused persons by stick

resulting into grievous injury on his head leading to the death of the victim. Ms. Bhuyan

submits that since there is ocular evidence to show that the accused persons had

assaulted the victim, the evidence of the Doctor (PW-13) be appreciated and understood

in the light of the total evidence available on record, in which event, there would be no

scope for this Court to interfere with the conviction of the applicants. Ms. Bhuyan has also

relied on the evidence of the injured eye witnesses to submit that the assault made by

the accused persons upon the victim on the day of the occurrence is established beyond

doubt and therefore, there is no scope for this Court to take a lenient view as regards the

role played by the accused persons in this case.

In order to appreciate the submission of the learned counsel for the parties, we

have carefully gone through the impugned judgment and find that there is some Page No.# 4/5

contradiction in the testimony of some of the prosecution witnesses. We also find that the

PW-2 had implicated the accused persons during his examination-in-chief but during his

cross-examination, he has stated that he had not seen the occurrence. Therefore, the

evidence of this witness implicating the accused persons during their examination-in-chief

does not inspire the confidence of this Court. Other prosecution witness had deposed that

the accused persons had assaulted the victim due to a quarrel which broke up on account

of cutting of a sheesham tree. However, it prima facie appears that the prosecution

witnesses did not ascribe any specific role to the accused persons by indicating the

manner in which they have assaulted the victim. As regards the inference of the learned

trial court on the question of unlawful assembly, here also, we prima facie find that there

is no clear finding based on evidence as regards common object of the accused persons

to cause death to the victim.

Whether there are material contradictions in the testimony of the PWs causing a

dent in the prosecution case, is a matter that can be gone into during the final hearing of

the appeal. However, having regard to the nature of evidence brought on record and also

to the medical evidence, which apparently indicates that there was single injury in the

head of the victim leading to his death, we are of the view that the applicants have made

out a strong prima facie case to consider the prayer for release on bail.

At this stage, Mr. Jain submits that the applicant No. 3, viz. Tomejuddin is already

out on interim bail granted by this Court on medical ground by the order dated 16-08-

2021.

In view of the above, we direct that the applicants No. 1. Sonowar Hussain and No. Page No.# 5/5

2. Ashique Ali be also released on bail on furnishing bond of Rs. 30,000/- each with one

surety of like amount to the satisfaction of the learned Sessions Judge, Barpeta.

The order dated 16-08-2021, insofar as the applicant Tomejuddin is concerned, is

hereby made absolute.

We make it clear that the applicants shall appear before the learned court below

every fortnightly and they shall not leave the jurisdiction of the learend District and

Sessions Judge, Barpeta without obtaining prior permission.

Violation of the above conditions may lead to cancellation of the bail.

Before parting with the record, we make it clear that the observations made

hereinabove are for the limited purpose of disposing of this I.A. and the same shall not

have any bearing during the final hearing of the appeal on merit.

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

                          JUDGE                       JUDGE
GS




Comparing Assistant