Fajalur Rahman @ Md. Fazlur Rahman vs The State Of Assam And Anr
2022 Latest Caselaw 4512 Gua

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GAHC010162502022




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

                                 Case No. : I.A.(Crl.)/453/2022

            FAJALUR RAHMAN @ MD. FAZLUR RAHMAN
            S/O- ABIR ALI, VILL.- PIRADHERA PT-I, P.S. ABHAYAPURI, DIST.
            BONGAIGAON, ASSAM

            VERSUS

            THE STATE OF ASSAM AND ANR.
            TO BE REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:MD. ABDUL HAMID
             S/O- LATE HUSSAIN ALI
            VILL.- NASATRA
             P.S. ABHAYAPURI
             DIST. BONGAIGAON
            ASSAM
             PIN- 783384

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                      HONOURABLE MR. JUSTICE SUMAN SHYAM
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

16.11.2022 (Suman Shyam, J)

Heard Mr. H. R. A. Choudhury, learned senior counsel assisted by Mr. A.

Ahmed, learned counsel appearing for the applicant. We have also heard Ms. Page No.# 2/4

S. Jahan, learned Addl. P.P., Assam, appearing for the State.

The applicant in this case has been convicted under Sections 302/457 of

the IPC by the judgment and order dated 14.07.2022 passed by the learned

Addl. Sessions Judge (FTC), North Salmara, Abhayapuri in connection with

Sessions Case No.26(A)/2015 and sentenced to undergo rigorous imprisonment

for life and also to pay fine of Rs.20,000/- with default stipulation for committing

the offence punishable under Section 302 of the IPC. The applicant has also

been sentenced to undergo rigorous imprisonment for three years and to pay

fine of Rs.10,000/- with default stipulation for committing the offence under

Section 457 IPC.

The State has filed objection opposing the bail prayer made by the

applicant.

By referring to the materials available on record Mr. H. R. A. Choudhury,

learned senior counsel appearing for the appellant, submits that save and

except the oral dying declarations of the victim brought on record by the PWs-

4, 5 and 8 there is no other evidence to implicate the applicant. According to

the learned senior counsel, there are material contradictions in the testimonies

of PWs-4, 5 and 8 rendering their evidence wholly unreliable. Mr. Choudhury

further submits that the prosecution has also failed to establish the motive

behind the crime and considering the fact that oral dying declaration is a weak

piece of evidence there is every possibility that the conviction of the appellant

would be set aside in the final hearing of the appeal. Under the circumstances,

Mr. Choudhury submits that the present is a fit case where the applicant should

be allowed to go on bail during the pendency of the connected appeal.

Responding to the above, Ms. S. Jahan, learned Addl. P.P., Assam Page No.# 3/4

submits that in case of multiple oral dying declarations the court will have to

examine as to which of those is most reliable before coming to a conclusion as

regards the probative value of the evidence available on record. The learned

Addl. P.P. has, however, fairly submitted that this is a matter which can be gone

into during the final hearing of the appeal.

It is not denied or disputed at the Bar that there are some contradiction in the

testimony of PWs-4, 5 and 8 who had allegedly heard the victim name the

appellant as her assailant. On a careful reading of the impugned judgment as

well as the materials available in the LCR, we find that save and except the

multiple oral dying declarations there is no other substantive evidence so as to

sustain the conviction of the applicant. Whether the oral dying declarations

would be sufficient to sustain the conviction of the applicant as awarded by

the learned trial court or not is a matter which would require deeper

examination by this Court, which can be done only at the stage of final hearing.

However, having considered the arguments advanced by learned counsel for

both sides and on perusal of the materials available on record, we are of the

view that a strong prima-facie case has been made out by the applicant for

suspension of his jail sentence and also for his release on bail during the

pendency of the connected appeal. It is, however, made clear that the above

observations are made only for the limited purpose of this bail application and

the same shall not have any bearing during the final hearing of the appeal.

We, accordingly, direct that the applicant viz., Fajalur Rahman alias Md.

Fazur Rahman be released on bail on furnishing a bond of Rs.50,000/- (Rupees

Fifty Thousand) and one local surety of like amount to the satisfaction of the

learned Additional Sessions Judge (FTC), North Salmara, Abhayapuri, subject to Page No.# 4/4

the further condition that the applicant shall record his presence before the

learned trial court once a month and shall not leave the jurisdiction of the

learned trial court without obtaining prior permission. Violation of the above

conditions may lead to cancellation of the bail.

This I.A. stands disposed of.

                                            JUDGE                              JUDGE




Comparing Assistant