Gauhati High Court
Sibu Sarkar vs The State Of Assam And Anr on 28 September, 2022
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GAHC010180982022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/521/2022
SIBU SARKAR
S/O- SRI PORITOSH SARKAR, R/O- VILL.- BAGICHAGAON, P.S. ROWTA,
DIST. UDALGURI, ASSAM, PIN- 784508.
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:HEMANTA BISWAS
S/O- LATE HIRENDRA BISWAS
R/O- VILL.- KHASUWABIL
KOPATI
P.S. AND P.O. ROWTA
DIST. UDALGURI
ASSAM
PIN- 784508
Advocate for the Petitioner : MR. S S S RAHMAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
order
28-09-2022
[N. Kotiswar Singh, J]
Heard Mr. S.S.S. Rahman, learned counsel for the applicant. Also heard Ms. S.
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Jahan, learned Additional Public Prosecutor, Assam.
2. It has been submitted that the conviction of the applicant/appellant was passed
after considering the dying declaration of the deceased where she had stated that " at
about 9.30 p.m. fire somehow caught me while I was preparing food in the oven. I
was brought to Namecare Hospital, Guwahati."
3. Mr. S.S.S. Rahman, learned counsel for the applicant/appellant has also drawn
attention of this Court to the finding of the learned Sessions Judge, Udalguri, as
contained in para-18 of the judgment in which the Trial Court had discussed the
evidence of one Susma Biswas (P.W.5), the neighbour of the deceased and accused,
who stated during her cross-examination that when she entered the house of the
accused she saw the wife of the accused under burnt condition who told her that she
set fire on herself and when the accused was asked about the incident he told that he
did not know anything though he was sleeping in the same room. Later the wife of the
accused was taken to the hospital for treatment.
4. This according to the learned counsel for the applicant clearly indicates that
the incident was not homicide of which the applicant/appellant has been accused of
committing the crime and convicted. It shows that it was an accident and accordingly,
he may be allowed to go on bail during the pendency of the appeal by suspending the
sentence in term of the judgment dated 28.07.2022 passed in Sessions Case
No.61/2017 by the learned Sessions Judge, Udalguri convicting him under Section 302
IPC.
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5. On the other hand, Ms. S. Jahan, learned Additional Public Prosecutor, submits
that the learned Trial Court did not pass the conviction sentence on the basis of the
statement of the P.W.5 or the dying declaration but other relevant evidences. The
minor daughter of the deceased and the accused, namely, Sriya Sarkar, P.W.6 had
categorically stated that her mother was subjected to physical assault by her father
and in fact it was the applicant/appellant who burnt her mother. In this regard, Ms.
Jahan has drawn attention of this Court to Para-20 of the Judgment of the Trial Court
and submitted that at the time of appreciating the evidences on record, the learned
Sessions Judge, Udalguri, had discussed the evidence of the P.W.6 who saw her father
pushing her mother to the bathroom and thereafter, he dragged her out from the
bathroom. She stated that then he detained her mother inside a room and set on fire
by stick from a match box. At that time, she (P.W.6) was also in that room and she
was sitting on the bed and though she was pleading her father to save her mother,
her father was busy playing with mobile phone and she was threatened by her father
that she would be killed like her mother if she would shout.
P.W.6 further stated that after hearing the shout, one neighbour Tapash came
into their room and saw her mother burning and thereafter, she was taken to the
hospital by her mother and others.
6. We have gone through the judgment and order dated 28.07.2022 passed in
Sessions Case No.61/2017 by the learned Sessions Judge, Udalguri for the purpose of
consideration of the bail application.
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7. Considering the evidence of the P.W.6, who is the minor daughter of the
deceased and the applicant/appellant, we are not inclined to grant bail to the
applicant/appellant by suspending the sentence passed by the learned Sessions Judge,
Udalguri. The submissions advanced by the learned counsel for the applicant/appellant
that the child was tutored before she gave her testimony will be duly considered at the
time of hearing of the appeal.
8. In view of the above, the I.A. (Crl.) stands dismissed.
JUDGE JUDGE
Comparing Assistant
