Gauhati High Court
Md. Abdullah vs The State Of Assam on 16 August, 2022
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GAHC010132762022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1708/2022
MD. ABDULLAH
S/O LATE HAJI MULIB ALI
R/O BORGOOL, P.O. GHULCHERABAZAR
P.S.NILAMBAZAR,
DIST. KARIMGANJ.
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR P KATAKI
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
16-08-2022
Heard Shri P. Kataki, learned Counsel for the petitioner, namely, Md. Abdullah,
who has filed this bail application under Section 439 of the Cr.P.C. praying for bail in
connection with PRC No. 875/2011 (arising out of GR Case No. 2520/2021) u/s
396/397 IPC and added section 25(1)(B) of Arms Act, 1959.
2. Petitioner was arrested on 07.03.2022.
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3. At the outset the learned counsel for the petitioner, Shri Kataki has submitted
that on an earlier occasion, this Court vide order dated 13.05.2022 had rejected the
prayer for bail of the petitioner in BA No. 590/2022.
4. Pursuant to the order dated 22.07.2022, the scanned copy of the case records
has been received.
5. Shri Kataki, the learned counsel for the petitioner has submitted that the
materials collected so far would show that there are prima facie contradictions. He
specifically submits that the injuries found on the body of the deceased are not
consistent with the nature of the weapons which have been stated to be used. He also
submits that though one of the witnesses in her statement under Section 164 CrPC
has stated that there was a use of firearm also in causing the injury, no injury has
been found on the body which can be caused by firing of a gun. Lastly, the learned
counsel submits that the length of detention is sufficient and the matter is pending at
the pre-committal stage because of the fact that two of the accused have been found
to be absconding.
6. On the other hand, Shri B. Sarma, learned Addl. PP, Assam has contested the
prayer for bail by submitting that the injuries on the deceased was caused by a group
of persons holding the different kind of arms and therefore precise description may
not be there. Further, he submits that injury reports are consistent with the nature of
the arms described to have been used by the various witnesses. By referring to the
seizure list, the learned Addl. PP has submitted that two numbers of arms including six
numbers of fire ammunitions have also been recovered from the house of Matab
Uddin.
7. The learned Addl. PP further clarifies that as on today, only one of the accused
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person is found to be absconding.
8. Shri N. K. Kalita, learned counsel who has appeared for the informant has
assisted the learned Addl. PP and has submitted that the offence involved is a very
serious one the deceased was chased by a group of persons and was killed in broad
daylight which was witnessed by a number of persons. He further submits that the
nature of the injuries corroborates the nature of the arms said to be used in the
assault of the deceased.
9. After hearing the rival submissions and after perusal of the materials available in
the scanned copy of the records, this Court is of the tentative view that the
statements available are those under Section 164 Cr.PC and on a reading of the same,
it cannot be said that there are no sufficient materials against the present accused for
keeping him further custody. Though the learned counsel for the petitioner has tried to
highlight that there are inconsistencies with the injuries prescribed and the arms that
is said to be used, those inconsistencies appears to be of trivial nature and as settled
by the Hon'ble Supreme Court in a number of cases including the case of Balvir Singh
v. State of M.P., (2019) 15 SCC 599 : (2020) 1 SCC (Cri) 448.
For ready reference, Paragraph 14 of the aforesaid judgment is extracted hereinbelow:
"14. Contention of the appellants is that the occurrence was a blind murder and
testimonies of the eyewitnesses PWs 2, 3 and 13 are not reliable as the same suffer
from material contradictions and inconsistencies. The alleged contradictions in the
testimony of the eyewitnesses that are being urged by the appellants are trivial i.e.
with respect to the number of blows given to the deceased with lathi by accused
Bharat Singh, part of the body where the bullet was shot and the distance from where
Harnam Singh fired at Mohan, etc. Such contradictions pointed out in the evidence of
the three eyewitnesses are minor which do not affect the core of the prosecution case.
The discrepancies pointed out in the evidence of eyewitnesses regarding the number
of blows, the distance between appellant Harnam Singh and deceased Mohan and the
part of the body of the deceased where the bullet hit are may be due to normal errors
of observation narrating the occurrence, which they have witnessed. The power of
observation differs from person to person witnessing an attack. While the prime event
of attack and the weapon are observed by a person, other minute details of number of
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blows, the distance from which the fire was shot might go unnoticed. So long as the
evidence of the eyewitnesses is found credible and trustworthy, their evidence cannot
be doubted on the ground of minor contradictions."
In another case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of
Maharashtra, (2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375, the Hon'ble
Supreme Court has laid down as follows:-
"30. While appreciating the evidence, the court has to take into consideration whether
the contradictions/omissions had been of such magnitude that they may materially
affect the trial. Minor contradictions, inconsistencies, embellishments or improvements
on trivial matters without effecting the core of the prosecution case should not be
made a ground to reject the evidence in its entirety. The trial court, after going
through the entire evidence, must form an opinion about the credibility of the
witnesses and the appellate court in normal course would not be justified in reviewing
the same again without justifiable reasons."
This court is of the opinion that in a group clash when a number of accused
persons are involved, minor inconsistencies per se (i) would not dilute the case of the
prosecution.
10. In that view of the matter, this Court is of the considered opinion that the
present may not be a fit case for allowing the petitioner to be enlarged on bail.
11. Accordingly, the bail petition stands rejected at this stage. It is however clarified
that the observations made in this order are all tentative and shall not have any
bearing in the trial.
12. While the present prayer for bail is rejected, this Court would request the
learned Trial Court to expeditiously conclude the trial.
JUDGE
Comparing Assistant
