Gauhati High Court
Page No.# 1/5 vs The State Of Assam And Anr on 20 February, 2023
Page No.# 1/5
GAHC010237492022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/735/2022
KETENG BORO AND 9 ORS.
S/O- BANARU BORO, R/O- VILL.- BANDUGURI, P.S. BIJNI, DIST. CHIRANG,
ASSAM, PIN- 783390.
2: GENA BASUMATARY
S/O- LATE MOHAN BASUMATARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390.
3: GONGAR BASUMATARY
S/O- LATE MOHAN BASUMATARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390.
4: GOGO BASUMATARY
S/O- LATE MOHAN BASUMATARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390.
5: AKHU BASUMATARY
S/O- LATE JALATAR BASUMATARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
Page No.# 2/5
PIN- 783390.
6: THIREN BASUMATARY
S/O- OBORSIN BASUMATARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390.
7: SAMBARU BASUMATARY
S/O- LATE JAMANI BASUMATARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390.
8: JABAJI BASUMATARY
S/O- LATE JALADAR BASUMATARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390.
9: HEBRO GAYARI
S/O- SOBHARAM GOYARI
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390.
10: SAMAR MUCHAHARY
S/O- LATE BANESWAR NUCHAHARY
R/O- VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE P.P., ASSAM
2:GANESH BASUMATARY
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S/O- SRI SIKI RAM BASUMATARY
VILL.- BANDUGURI
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390
Advocate for the Petitioner : MR R DHAR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
20.02.2023
(M. Zothankhuma, J)
1. Heard Mr. R. Dhar, learned counsel for the applicants and Ms. B. Bhuyan,
learned Additional Public Prosecutor for the State.
2. This is an application under Section 389 Cr.P.C., to suspend the sentence
passed in the impugned Judgment and Order dated 24.05.2022 by the Court of
the Additional Sessions Judge, Bijni, Chirang in Sessions Case No.98(B)/2018.
3. The applicants' counsel submits that there is discrepancy in the evidence
given by PW-1 with regard to the date of the crime in question and that the
evidence of PW-2 also does not give the exact date when the crime allegedly
occurred. He also submits that no weapon was seized by the police. Further, the
Doctor (PW-6) having stated in his Post Mortem Examination that the female
body being decomposed, there is no question of the witnesses identifying the
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body to be that of Kangalin Basumatary. The learned counsel for the applicants
also submits that the applicants having surrendered themselves before the
police during the time of investigation, the applicants should be released on bail
till the appeal is disposed of. The learned counsel for the applicants further
submits that all the names of the applicants/accused were not reflected in the
FIR and as such, the prosecution of the applicants whose names are not in the
FIR was vitiated.
4. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand
submits that the witnesses to the crime in question have categorically identified
the applicants as the perpetrators of the crime. She further submits that as the
Post Mortem Examination was done just within a week of the crime, the
decomposition of the body would not be to such an extent that the same could
not be identified. She further submits that the date of occurrence of the crime
as stated by PW-1 in her evidence is due to the fact that the evidence of PW-1
was taken 18 years after the crime had been committed and as such, there
could have been mistake on the exact date of the crime due to the long lapse
time between the date of the offence and the evidence taken by the Court. She
also submits that there is no contradiction in the deposition of the witnesses.
5. We have heard the learned counsels for the parties.
6. The facts of the case show that the incident had apparently occurred on
the night of 31.08.2001 and 01.09.2001. However, PW-1 has given a wrong
date during her evidence. In this respect, it should be kept in mind that the
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evidence has been taken by the learned Trial Court, 18 years after the incident
had occurred. As such, there was bound to be some discrepancies due to the
long period of time that had elapsed. Similarly, PW-2 may not have been stated
the exact date of the incident in view of the evidence being recorded after 18
years from the date of the incident. The evidence recorded by the learned Trial
Court is to the effect that 3 (three) persons have been killed by the applicants,
who are identified by the prosecution witnesses. The identification of one of the
victims had also been done within 7 (seven) days.
7. On considering the evidence that had been recorded in the Trial Court and
keeping in view the gravity of the offence, we are of the view that bail should
not be granted at this stage. Accordingly, the application for suspension of
sentence and granting of bail is rejected. However, the observation made today
should not influence the merits of the case at the time of hearing of the appeal.
8. Interlocutory Application is accordingly disposed off.
JUDGE JUDGE
Comparing Assistant
