Gauhati High Court
Biplab Ray vs The State Of Assam And Anr on 17 November, 2022
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GAHC010017772021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/104/2021
BIPLAB RAY
S/O- LATE BHOIRAB CH. RAY
VILL.- PATILADAHA
JHAKOWAPARA
P.S. MANIKPUR
DIST.- BONGAIGAON.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE P.P.
ASSAM
2:LEELA BALA RAY
W/O- DHARMESWAR RAY
VILL.- JAKUWAPARA
PATILADAHA
P.S. MANIKPUR
DIST.- BONGAIGAON
PIN- 783391.
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Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MRS. JUSTICE MITALI THAKURIA
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ORDER
17.11.2022
(Suman Shyam, J)
Heard Mr. A. Ahmed, learned counsel appearing for the applicant.
We have also heard Ms. S. Jahan, learned Addl. P.P., Assam, appearing
for the State/OP No.1 and Mr. D. Choudhury, learned counsel appearing
for the informant/OP No.2.
The applicant herein, along with another viz., Sri Raktim Ray, was
convicted under Sections 376(D)/506/34 of the IPC by the judgment and
order dated 04.01.2021 passed by the learned Sessions Judge,
Bongaigaon in connection with Sessions Case No.17(M)/2019 for
committing the rape of the victim and was sentenced to undergo
rigorous imprisonment for 20 years and also to pay fine of Rs.30,000/- for
committing the offence punishable under Section 376(D)/34 IPC with
default stipulation. The applicant was also sentenced to undergo simple
imprisonment for one year and to pay fine of Rs.5,000/- for committing
the offence punishable under Section 506/34 IPC. Since the date of the
impugned judgment, the applicant is in jail.
By referring to the materials available on record, Mr. Ahmed
submits that there are material contradictions in the version of the victim
raising a strong doubt as to the veracity of her version. Mr. Ahmed
submits that save and except the testimony of the victim, there is no
cogent evidence available on record so as to sustain the conviction.
Even the medical evidence, according to Mr. Ahmed, does not support
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the case of the prosecution. By pointing out the delay in lodging the F.I.R.
in this case, which was more than four days, Mr. Ahmed submits that such
unexplained delay, viewed in the light of the nature of evidence
available on record, raises a serious doubt on the question of
sustainability of the conviction of his client. Mr. Ahmed, therefore, submits
that there is a strong possibility that when the appeal is finally heard, the
applicant might be acquitted by setting aside the impugned judgment
dated 04.01.2021 passed by the learned trial court. Under the
circumstances, submits Mr. Ahmed, the present is a fit case where the
applicant deserves to be released on bail pending disposal of the
connected appeal.
Ms. S. Jahan, learned Addl. P. P., Assam, on the other hand, has
fairly submitted that although there are some contradictions in the
testimony of the victim, yet, whether those contradictions are merely in
the nature of discrepancies or are material contradictions going into the
root of the matter, is a question which would call for deeper examination
by this Court at the time of hearing of the appeal. The learned Addl. P.P.,
however, submits that taking note of the objection filed by the State, the
bail prayer be rejected at this stage.
Mr. D. Choudhury, learned counsel for the OP No.2, submits that if
the applicant is released on bail, there is a strong possibility that he would
threaten and pose risk to life and liberty of the members of victim's
family. Hence, the bail prayer be rejected.
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We have considered the submissions made by the learned counsel
for both sides and have also gone through the materials available on
record.
On a careful examination of the version of the victim recorded by
the I.O. under Section 161 Cr.P.C., her statement recorded before the
Magistrate under Section 164 Cr.P.C. and her deposition before the
court, we also prima-facie find that there are some contradictions. From
the version of the victim, there is some confusion as regards the actual
circumstances under which the victim was allegedly picked up in the
motorcycle and taken by the accused persons to an isolated place
where she had been allegedly raped. There is also some delay in lodging
the F.I.R. We also find that there is no medical evidence supporting the
prosecution case. It is settled law that in a matter of this nature,
conviction on the basis of sole testimony of the victim, would be
permissible in law if her version is found to be trustworthy. However,
arriving at a just conclusion on the above issue would require detail
hearing. It has been rightly pointed out by the learned Addl. P.P., that
such issues can be dealt with appropriately during the final hearing of
the appeal which will take some time.
Having regard to the overall facts and circumstances of the case,
the materials available on record as well as the submission of learned
counsel for the parties, we are of the view the applicant has succeeded
in making out a prima-facie case for his release on bail. Such satisfaction
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of this Court, it must be noted, is of prima-facie nature and is being
recorded only for the limited purpose of disposal of this I.A. Our
observations made above shall not have any bearing during the final
hearing of the connected appeal.
For the reasons stated above, we hereby direct that the applicant
Sri Biplab Ray be forthwith released on bail on furnishing a bond of
Rs.50,000/-, one local surety of like amount and also an undertaking to be
executed before the learned trial court to the effect that he would not
leave the jurisdiction of the learned court below without prior permission
and shall in no way make any threat or coercion to the victim and her
family members during the pendency of the connected appeal. It is
made clear that violation of the above conditions will be viewed
seriously and may even lead to the cancellation of the bail.
With the above observation, this I.A. stands disposed of.
JUDGE JUDGE
Comparing Assistant
