Khandakar Safiur Rahman vs The State Of Assam And Anr
2022 Latest Caselaw 4696 Gua

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GAHC010156992022




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

                                Case No. : I.A.(Crl.)/442/2022

            KHANDAKAR SAFIUR RAHMAN
            S/O- AKHER ALI KHANDAKAR, VILL. NO. 1 BHANDARA, P.S. MANIKPUR,
            DIST. BONGAIGAON, ASSAM, PIN- 783390.


            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:SAMSUL ALI
             S/O- LATE KASHEM ALI
             R/O- VILL.- KASDOHA
             P.S. BIJNI
             DIST. CHIRANG
            ASSAM
             PIN- 783390

Advocate for the Petitioner   : MR. M U MAHMUD

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                    HONOURABLE MR. JUSTICE SUMAN SHYAM
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                          ORDER

29.11.2022 (Suman Shyam, J)

Heard Mr. M. U. Mahmud, learned counsel appearing for the Page No.# 2/4

applicant. Also heard Ms. S. Jahan, learned Addl. P.P., Assam

representing the State.

The applicant herein Khandakar Saifur Rahman (A-1) along with

another accused person Mustt. Lal Bhanu(A-2) were convicted under

Sections 302/120B of the IPC by the judgment dated 07.07.2022 passed

by the learned Additional Sessions Judge, Bijni, Chirang in connection

with Sessions Case No.16(B)/2021 for committing the murder of deceased

Eyad Ali and sentenced to undergo rigorous imprisonment for life and

also to pay fine of Rs.20,000/- with default stipulation.

The prosecution case, in a nutshell, is that the applicant (A-1) had

conspired with accused Lal Bhanu (A-2), who is the wife of the

deceased, to kill her husband by engaging contract killers. In furtherance

of such conspiracy, the husband of A-2 was killed in an incident which

took place late in the evening of 07.07.2021. The prosecution case is

entirely based on circumstantial evidence. A perusal of the impugned

judgment indicates that the learned trial court had heavily relied upon

the Call Details Report (CDR) of both the accused persons and the

contract killers around the time of the incident to come to the conclusion

that the incident was the outcome of criminal conspiracy. According to

the prosecution, the applicant Khandakar Saifur Rahman was

maintaining an illicit relationship with Lal Bhanu (A-2) and in order to

continue with their illicit affair, the deceased was eliminated by hiring

contract killer. It appears that one of the contract killers was killed in an Page No.# 3/4

encounter with the police and the other is absconding.

Mr. Mahmud has referred to the evidence on record to submit that

the prosecution has failed to produce the voice sample or the details of

conversation between the accused, which was available with the

operator, to establish the conspiracy theory. According to Mr. Mahmud,

there is no evidence to establish the illicit relationship between his client

and the co-accused. Moreover, the ownership of the SIM Cards relied

upon by the prosecution also could not be established by leading

cogent evidence. According to the applicant's counsel, the prosecution

has failed to establish the charge brought against the

accused/applicant beyond reasonable doubt and hence, there is a

strong possibility that the applicant might be acquitted by the appellate

court. On such count a prayer has been made for releasing the

applicant on bail pending disposal of the appeal.

Ms. S. Jahan, learned Addl. P.P., Assam, on the other hand, submits

that the learned trial court had relied upon the materials available on

record which includes the CDR as well as the broken SIM Card and the

weapons which were recovered by the police. However, whether such

material would be sufficient to sustain the conviction of the applicant is a

matter that can be gone into during the final hearing of the appeal.

After hearing the submissions of the learned counsel for both the

sides and on perusal of the materials available on record, we find that

this is a case entirely based on circumstantial evidence and the Page No.# 4/4

conspiracy theory has been sought to be established by the prosecution

merely by relying upon the CDR. Whether the CDR has been proved by

adducing cogent evidence and if so, what impact the failure on the part

of the prosecution to produce the conversation and the voice sample, if

any, of the accused persons, would have in this case, are matters that

would have to be looked into minutely during the hearing of the appeal.

However, having regard to the peculiar facts and circumstances of the

case, we are of the opinion that the applicant has made out a good

case for allowing the bail prayer made in the I.A. pending disposal of the

appeal.

We, accordingly, direct that the applicant Khandakar Saifur

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

Fifty Thousand) and two local sureties of the like amount to the

satisfaction of the learned trail court with a further conditions that he

would not leave the jurisdiction of the learned Addl. Sessions Judge, Bijni,

Chirang without prior permission and shall also record his attendance

before the learned trial court once in every month.

With the above observation, this I.A. stands disposed of.

                                        JUDGE                           JUDGE



Comparing Assistant