Poresh Soren vs The State Of Assam
2022 Latest Caselaw 2202 Gua

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GAHC010097302022




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

                               Case No. : Bail Appln./1174/2022

            PORESH SOREN
            S/O LATE PARSURAM SOREN
            R/O VILL- KOILABARI GAON
            P.S. AND P.O. CHUABUA
            DIST. DIBRUGARH, ASSAM
            PIN-786184

            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM

Advocate for the Petitioner : MR. P BORA
Advocate for the Respondent : PP, ASSAM


                                          BEFORE
                HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                          ORDER

27-06-2022

Heard Mr. Pran Bora, learned Senior Counsel assisted by Ms. Kabyashruti Bhattacharyya, learned counsel for the petitioner and Mr. Dhanesh Das, learned Additional Public Prosecutor, Assam for the State.

By this application under Section 439 CrPC, the petitioner, namely, Sri Poresh Soren, is seeking bail in Chabua Police Station Case No.100/2020 corresponding to G.R. No.1815/2020, which is now pending trial before the Court of learned Additional Sessions Judge, Dibrugarh in Sessions Case No. 67/2020, wherein charge under Sections 120(B)/147/148/323/302/149 Page No.# 2/11

of the IPC have been framed against the 12 accused persons of the case including the petitioner.

Since the date of his arrest on 25.05.2020 in said Chabua PS Case No.100/2020, the petitioner is in custody.

Earlier, the petitioner with other accused persons of said Chabua PS Case preferred bail application before this Court for their bail in said Sessions Case No.67/2020. Though the judgments of the Hon'ble Supreme Court in the cases of State of Rajasthan -Vs- Balchand , reported in (1977) 4 SCC 308, Gudikanti Narasimhulu -Vs- Public Prosecutor, High Court of A.P., reported in (1978) 1 SCC 240, State of U.P. -Vs- Amarmani Tripathi, reported in (2005) 8 SCC 21 and Sanjay Chandra -Vs- CBI, reported in (2012) 1 SCC 40 were placed before the Court for the petitioner in his last bail application i.e., in B.A. No. 2238/2021, but after hearing the learned counsel for the petitioner as well as the Public Prosecutor, Assam, the Court considering the materials and the judgments of the Hon'ble Supreme Court in the cases of Prahlad Singh Bhati -Vs- NCT, Delhi, reported in (2001) 4 SCC 280, Kalyan Chandra Sarkar -Vs- Rajesh Ranjan, reported in (2004) 7 SCC 528, State of U.P. -Vs- Kishanpal, reported in (2008) 16 SCC 73, Ash Mohammad -Vs- Shiv Raj Singh, reported in (2012) 9 SCC 446, State of Bihar -Vs- Amit Kumar, reported in (2017) 13 SCC 751, Prasad Shrikant Purohit

-Vs- State of Maharashtra, reported in (2018) 11 SCC 458 and Sudha Singh -Vs- State of U.P., (2021) 4 SCC 781 rejected the bail of the petitioner on 23.11.2021. It is to be noted herein that at that stage evidence of only two prosecution witnesses were recorded.

Mr. Bora, learned Senior counsel stated that the petitioner is a NC(e) [Non- Combatants enrolled] with the Indian Air Force and serving in the 128 Helicopter Unit, Air Force, Air Force Station, Mohanbari, Dibrugarh. It is also stated that the petitioner is no way connected with the case.

Mr. Bora, learned Senior counsel for the petitioner contended that the informant of said Chabua P.S. Case No.100/2020, Lakhidhar Gogoi himself is the victim of the incident, but in the FIR of the case, the said victim complainant did not name the petitioner as an accused.

Mr. Bora, learned Senior counsel also stated that because of his arrest in said Page No.# 3/11

Chabua PS Case on 25.05.2020 and he being in judicial custody, lodged at Central jail, Dibrugarh since the date of his arrest holding him to be an accused in the murder of a local youth by a group of persons in the neighborhood on the night of 23.05.2020, the Squadron Leader and Commanding Officer of said 128 Helicopter Unit, Air Force Station, Mohanbari by his commutation dated 25.05.2022 informed the wife of the petitioner that if he is not

released on bail then he will be discharged from the Indian Air Force w.e.f., 30 th April 2023

(A/N) and his name shall be Struck off strength of the Indian Air Force w.e.f. 1 st May 2023. In that regard, Mr. Bora placed the communication dated 25.05.2022 of the Squadron Leader and Commanding Officer, 128 Helicopter Unit, Air Force Station, Mohanbari, Dibrugarh, Annexure-V to this petition.

It is submitted on behalf of the petitioner that there is no past record regarding his involvement in any criminal case, nor he is involved in the present case, but have been wrongly implicated in the case.

It is also submitted that though these facts were placed before the learned Additional Sessions Judge, Dibrugarh during the trial of the case and by filing a petition No.752/2022 the petitioner prayed for his bail in said Sessions Case No.67/2020, but as this Court earlier rejected his bail vide order dated 18.12.2020 in BA No.2510/2020, order dated 16.08.2021 in BA No.1545/2021 and order dated 23.11.2021 in BA No.2238/2021, therefore, the learned Additional Sessions Judge, Dibrugarh rejected his said bail petition No.752/2022 on 08.04.2022 in said Sessions Case No.67/2020.

Mr. Bora learned Sr. counsel for the petitioner submits that in the meanwhile seven prosecution witnesses have been examined in said Sessions Case No.67/2020 and their evidences had already been recorded including the evidence of the victim informant witness, Lakhidhar Gogoi, and the concerned Autopsy Doctor who conducted post mortem examination on the person of the deceased in said Chabua P.S. Case No.100/2020.

Placing the evidence of said Autopsy Doctor, PW-6 Mr. Bora submitted that during the post mortem examination only two injuries were found on the person of the deceased, (i) a chopped wound of size 7 cm x 6 cm x bone deep on his left upper arm, 4 cm above the elbow joint and (ii) contused scalp at places. Mr. Bora also placed that the concerned Autopsy Page No.# 4/11

Doctor in his post mortem examination report of the deceased opined that death was due to haemorrhage and shock as a result of the injuries sustained over the body, where all the injuries were ante-mortem in nature and that injury No. 1 was caused by a moderately heavy sharp cutting instrument, which was homicidal in nature. Mr. Bora learned Sr. counsel for the petitioner from the said evidence of the Autopsy Doctor, PW-6 placed that the concerned doctor during post mortem examination of the deceased found that his skull, vertebrae, membrane, brain, walls, ribs, cartilages, pleurae, right lung, left lung, pericardium, heart, vessels, the abdomen including walls, stomach, small intestine, large intestine, liver, spleen, kidneys, bladder, organs of generations, both external and internal as healthy and no dislocation on his muscles, bones, joints, excepting the scalp as described. Mr. Bora submitted that that contusion on scalp can be caused even by fall.

Mr. Bora learned Sr. counsel submitted that from the evidence of said Autopsy Doctor, PW-6, it is clear that although injuries sustained by the deceased on his person were found to be ante-mortem, but only the injury No. 1, i.e. the single chopped wound on his left upper arm, caused by moderately and heavy sharp cutting instrument, was homicidal in nature.

Mr. Bora submitted that neither the victim informant witness Lakhidhar Gogoi in his FIR named the petitioner, nor in his evidence stated that it is the petitioner who gave the blow by any sharp cutting instrument causing chopped wound on the left upper arm of the deceased. It is also submitted that none of the prosecution witnesses present at the place of occurrence or reached the place of occurrence during the incident, whose evidence have already been recorded, did not state that it is the petitioner who had injured the deceased with sharp cutting instrument.

Mr. Bora, learned Sr. counsel submitted that only with the aid of Sections 120(B)/147/148/149 of the IPC that relates to punishment for conspiracy; punishment for rioting; rioting, armed with deadly weapon and being the member of an unlawful assembly guilty of offence committed in prosecution of common object, respectively the petitioner has been roped within the said crime though he is no way connected with it. Placing the ingredients of Sections 120(B)/146/147/148/149 IPC, Mr. Bora submitted that since those ingredients are absent against the petitioner, he should be considered for bail.

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It is submitted that since the petitioner is an Air Force personnel and as there is no adverse report against him regarding his involvement in any criminal activities in the past, therefore, if he is released on bail, there will not be any such potential threat to the society or to the witnesses who are yet to be examined in the case or the family members of the victim. It is also submitted that the case of Sudha Singh -Vs- State of U.P. (supra) is not applicable to the petitioner as he is not a threat to the society and that if the petitioner is released on bail during the trial of the case there shall not be any adverse impact on it nor on the witnesses of the case. It is submitted that if the petitioner is released on bail during the trial of case he shall abide by all such terms and conditions that may imposed upon him by the Court.

Mr. Bora, learned Sr. counsel for the petitioner submitted that considering all these and that evidence of the important prosecution witnesses present in the place of occurrence or reached the place of occurrence during the incident and that of the concerned Autopsy Doctor and because of the subsequent facts placed before the Court, the petitioner may be considered for release on bail during the trial of said Sessions Case No.67/2020.

In support of the petitioner Mr. Bora learned Sr. counsel placed the judgment of the Hon'ble Supreme Court - Baliya alias Bal Khan -Vs- State of Madhya Pradesh, reported in (2012) 9 SCC 696 and P.K.Narayanan -Vs- State of Kerala, reported in (1995) 1 SCC 142.

Mr. Dhanesh Das, learned Additional Public Prosecutor on the other hand submitted that evidence of only seven prosecution witnesses have been recorded so far and evidence of majority of prosecution witnesses are yet to be recorded in the trial of the case. Mr. Das submitted that as off now, there is no such evidence from the relevant prosecution witnesses, who were present in the place of occurrence or reached the place of occurrence during the incident, whose evidence have already been recorded, as to who gave the blow on the deceased with sharp cutting instrument.

Mr. Das submitted that from the case record as well as Section 164 CrPC statements of the witnesses, it is evident that the petitioner was present amongst the 12 arrested accused persons of the case, who were armed with lathis (sticks) and daos (sharp weapons). Mr. Das, learned public prosecutor also placed that scalp of the deceased was found with contusions at places, which were ante-mortem and therefore, it indicates that the deceased did not fell Page No.# 6/11

down on hard substance more than one occasion and rather it points out that he was beaten on his scalp by sticks or heavy blunt objects like the other side of the dao by the accused persons more than once.

Mr. Das also placed that the opinion of the Autopsy Doctor in his evidence as well as the post mortem examination report of the deceased prove that the deceased expired due to haemorrhage and shock as a result of the ante-mortem injuries sustained by him over his body that includes contusions at places on his scalp. In support of his argument Mr. Das relied upon the judgment of the Hon'ble Supreme Court in the case of Chandrakeshwar Prasad -Vs- State of Bihar, reported in (2016) 9 SCC 443.

Mr. Das, learned Additional Public Prosecutor submitted that for all these the petitioner is not entitled to bail during the trial of said Sessions Case No.67/2020.

Considered the submission of Mr. Bora, learned senior counsel for the petitioner as well as the learned Additional Public Prosecutor Mr. Dhanesh Das and also perused the decisions cited by them.

From the charge sheet it is seen that there are all together 24 (twenty four) prosecution witnesses, out of which evidence of 7 (seven) prosecution witnesses including the victim informant and eye witness of the case, the Autopsy Doctor who had conducted the post mortem examination on the person of the deceased and other witnesses present and/or reached the place of occurrence during the incident had already been recorded in the trial of the case. Evidence of remaining 17 (seventeen) witnesses including 3 (three) seizure witnesses, 2 (two) investigating officers, 1 (one) cyber cell inspector, 1 (one) doctor from RHRC (Referred Hospital and Research Centre), Chabua are yet to be recorded.

The post mortem examination report of the deceased reflects that the deceased on his person sustained injuries (i) a chopped wound of size 7 cm x 6 cm x bone deep on his left upper arm, 4 cm above the elbow joint and (ii) contused scalp at places. As per said post mortem examination report the injury No. 1 sustained by the deceased was caused by a moderately heavy sharp cutting instrument, which was homicidal in nature. Further the opinion expressed in the said post mortem examination report regarding the cause of death of the deceased was due to haemorrhage and shock as a result of the injuries sustained by Page No.# 7/11

him over his body, which were ante-mortem in nature. However, it is noticed that vital organs of the deceased were found to be healthy. At the same time, the Court is also aware that the scalp of the deceased had contusion at places, which were ante-mortem and his death was due to haemorrhage and shock as a result of the ante-mortem injuries sustained by him.

It is placed before the Court that the evidence of material witnesses including the victim eye witness and the other witnesses present and/or reached the place of occurrence during the incident had been recorded.

The Hon'ble Supreme Court in the case of Shahzad Hasan Khan -Vs- Ishtiaq Hasan Khan, reported in (1987) 2 SCC 684 have held that -

" ......Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution."

While considering a case of granting bail under Section 439 CrPC, the Hon'ble Supreme Court in the case of Masroor -Vs- State of U.P., reported in (2009) 14 SCC 286 have held that -

"There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the Courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned."

It is well settled that prime consideration before the Court is to protect the fair trial and ensure that justice is done and for achieving a fair trial, role of witnesses assumes great significance and this fair trial is possible only when the witnesses are able to depose without fear, freely and truthfully as "they are the eyes and ears" of the Court.

In an appeal preferred by the State against the granting of bail by the Court to an under trial, the Hon'ble Supreme Court in the case of State of Bihar -Vs- Rajballav Prasad, reported in (2017) 2 SCC 178 have held that -

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"We are conscious of the fact that the respondent is only an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trial of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of the accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, if there is a threat to fair trial because of intimidation of witnesses, etc. that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer.

The Hon'ble Supreme Court in the cases of State -Vs- Jagjit Singh, reported in AIR 1962 SC 253 and Gurcharan Singh -Vs- State (NCT of Delhi) reported in (1978) 1 SCC 118 have laid down that the considerations which normally weigh with the Court in granting bail in non- bailable offences are--

"the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case."

In most of the cases, Court observed that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.

We have noticed that the accused petitioner Poresh Soren, son of late Paruram Soren, is aged about 54 years and is an Indian Air Force NC(e) personnel. From the letter dated 25.05.2022 of the Squadron Leader/ Commanding Officer of 128 Helicopter Unit, Air Force Page No.# 9/11

Station, Mohanbari, Dibrugarh to the wife of the petitioner, annexed to the petition, it is seen that if the petitioner is not released on bail then he will be discharged from the Indian Air

Force w.e.f., 30th April 2023 (A/N) and his name shall be Struck off strength of Indian Air

Force w.e.f. 1st May 2023.

From the records of the case as well as the evidence of the material witnesses so far recorded in the trial of the case, on being enquired, Mr. Das learned Additional Public Prosecutor stated that the relevant witnesses did not state that the petitioner was involved in any criminal case earlier nor stated that he is a threat to the society, except stating that the witnesses saw the petitioner amongst the group of 20/25 persons having lathis and daos in their hand assaulting the victim and the deceased during the incident.

In the case in hand, the incident occurred on 23.05.2020 and the petitioner was arrested on 25.05.2020 after lodging of the FIR by the victim informant on 24.05.2020, being Chabua PS Case no. 100/2020 and since then he is in custody.

Considering all these, the Court directs that the accused petitioner, namely, Poresh Soren be released on bail in said Sessions Case No. 67/2020 now pending trial before the Court of learned Additional Sessions Judge, Dibrugarh charged under Sections 120(B)/147/148/323/302/149 of the IPC arising out of Chabua Police Station Case No. 100/2020 (corresponding to GR Case No. 80/2014) on furnishing a bail bond of Rs. 1,00,000/- with two local sureties of the like amount to the satisfaction of the learned Trial Court on conditions that --

1. The petitioner shall not tamper with the prosecution evidence.

2. The petitioner shall not pressurize the prosecution witnesses.

3. The petitioner shall appear/present himself before the trial Court concerned on each and every date fixed by it and will not seek any adjournment whatsoever. In case, any adjournment is sought by the petitioner on any exceptional circumstances, the trial Court concerned shall specify the reasons in the order itself while granting such adjournment.

4. If there is any change of address of the petitioner, he shall inform the Superintendent of Police of the district concerned and also the trial Court concerned immediately in writing, obtaining necessary acknowledgement from those authorities.

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5. The petitioner shall surrender his passport, if any, within a period of seven days from the date of his release from jail on bail before the trial Court concerned.

6. The petitioner shall not commit an offence similar to the offence of which he is accused, or suspected of the commission, of which he is suspected.

7. The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

8. It is made clear that if the witnesses of the case or any person acquainted with the facts of the case receive any threat from the petitioner or from his supporters, said witnesses of the case or such person acquainted with the facts of the case are free to inform the trial Court and in such event, the trial Court concerned is free to take appropriate steps to reject the bail of the petitioner.

9. The petitioner shall execute an Indemnity Bond, before the trial Court concerned specifying that he shall abide by all the terms and conditions noted above, during the trial of the case.

10. In case of default of any of the conditions enumerated above, it would be open to the witnesses of the case or any person acquainted with the facts of the case to approach the Court concerned for cancellation of bail.

11. In case, there is any violation on the part of the petitioner of the aforesaid conditions, learned public prosecutor or the learned counsel for the complainant are at liberty to file a bail cancellation application before the trial Court concerned.

12. In case of breach of any of the conditions, the trial Court concerned will have the liberty to take appropriate steps to send the petitioner to jail again.

In terms of the above, this bail application stands disposed of.

JUDGE Page No.# 11/11

Comparing Assistant