Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Anr on 24 February, 2023
Page No.# 1/7
GAHC010153982022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/481/2022
BRAJESWAR BORDOLOI AND 4 ORS.
S/O LATE SURATH BORDOLOI, VILLAGE KALIAJARI, PS MORIGAON, DIST
MORIGAON, ASSAM 782105
2: SUSHIL BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
3: SHANTI BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
4: RANJAN BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
5: JAYANTA BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
Page No.# 2/7
ASSAM 78210
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM.
2:SRI KATIRAM BANGTHAI
S/O LATE ASHOK BANGTHAI
RESIDENT OF KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 78210
Advocate for the Petitioner : MR A ATREYA
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./204/2022
BRAJESWAR BORDOLOI AND 4 ORS.
S/O LATE SURATH BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
2: SUSHIL BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
3: SHANTI BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
4: RANJAN BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
Page No.# 3/7
PS MORIGAON
DIST MORIGAON
ASSAM 782105
5: JAYANTA BORDOLOI
S/O SRI BRAJESWAR BORDOLOI
VILLAGE KALIAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PP
ASSAM
2:KATIRAM BANGTHAI
S/O LATE ASHOK BANGTHAI
RESIDENT OF KALIYAJARI
PS MORIGAON
DIST MORIGAON
ASSAM 782105
------------
Advocate for : MR A ATREYA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
24.02.2023
(Malasri Nandi, J)
Heard Mr. D.K. Bhattacharyya, learned counsel for the
appellants/applicants. Also heard Ms. S. Jahan, learned Additional Public
Prosecutor appearing for the State/respondent No.1.
2. The present application has been filed by the accused/applicants
under Section 389(2) of Cr.P.C. for suspension of conviction and sentence vide
Page No.# 4/7
judgment and order dated 02.06.2022 and 08.06.2022 respectively passed by
the learned Sessions Judge, Morigaon in Sessions Case No. 24/2015, convicting
the accused/applicants Nos. 1, 3 and 4 namely, Brajeswar Bordoloi, Shanti
Bordoloi and Ranjan Bordoloi under Section 302 I.P.C. and sentencing them to
undergo rigorous imprisonment for life and pay a fine of Rs.50,000/- each, in
default a further period of 1 year of simple imprisonment. Further
accused/applicant No. 3 Shanti Bordoloi was convicted under Section 324 I.P.C.
and sentenced to undergo rigorous imprisonment for 1 year and also convicting
the accused/applicants Nos. 1, 2, 3, 4 and 5 namely, Brajeswar Bordoloi, Sushil
Bordoloi, Shanti Bordoloi, Ranjan Bordoloi and Jayanta Bordoloi were convicted
under Section 143 I.P.C. and sentencing them to undergo simple imprisonment
for 30 days respectively. As the applicant No. 2, Sushil Bordoloi and applicant
No. 5, Jayanta Bordoloi have already completed the period of sentence at the
time of trial, they were not taken into custody.
3. Mr. Bhattacharyya, learned counsel for the applicants submits that
the applicant No.1 is a senior citizen aged about 72 years. He has many age
related diseases and he is now suffering from hypertension, chest pain and
abdominal pain and he is also a diabetic patient. Therefore, considering the
health condition of the applicant No.1, his bail prayer may be considered and his
sentence may be suspended during pendency of the appeal only on medical
ground.
4. He further submits that during trial of the case, the applicants were
on bail and they had never misused their liberties or defaulted in appearing
before the trial court nor they have violated any of the bail conditions imposed
upon them during the entire course of the trial.
5. On the other hand, Ms. Jahan, learned Additional Public Prosecutor
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for the State has submitted that as per evidence of the witnesses, the applicant
No.1 Brajeswar Bordoloi dealt a blow on the head of the deceased with a spade
which is a vital part of the body and the medical officer also opined that the
cause of death of the deceased was due to cardio-respiratory failure following
Haemo-Pereumo-thorax and head injury which was caused by sharp and heavy
weapon. It is also submitted that as per report of the medical officer, the
accused/applicant No.1 is suffering from high blood pressure, vertigo,
migrainous headache which are not serious ailments as such, his bail prayer
may not be considered by suspending his sentence.
6. We have considered the submissions made by the learned counsel
for the parties and we have also perused the evidence of witnesses.
7. In the case of Kishori Lal v. Rupa, (2004) 7 SCC 638, the Hon'ble
Supreme Court has indicated the factors that require to be considered by the
courts while granting benefit under Section 389 Cr.P.C. in cases involving serious
offences like murder, etc. which is reproduced as follows-
" Section 389 of the Code deals with suspension of execution of sentence
pending the appeal and release of the appellant on bail. One of the essential
ingredients of Section 389 is the requirement for the appellate court to record
reasons in writing for ordering suspension of execution of the sentence or the
order appealed against. The requirement of recording reasons in writing clearly
indicates that there has to be careful consideration of the relevant aspects and
the order directing suspension of sentence and grant of bail should not be
passed as a matter of routine. The mere fact that during the trial, they were
granted bail and there was no allegation of misuse of liberty, is really not of
much significance. The effect of bail granted during trial loses significance when
on completion of trial, the accused persons have been found guilty. The mere
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fact that during the period when the accused persons were on bail during trial
there was no misuse of liberties, does not per se warrant suspension of
execution of sentence and grant of bail."
8. In the case of Preet Pal Singh v. State of Uttar Pradesh, it was held
that in case of post conviction bail by suspension of operation of the sentence,
there is a finding of guilt and the question of presumption of innocence does not
arise. Nor is the principle of bail being the rule and jail an exception attracted,
once there is conviction upon trial.
9. Even though detailed examination of the merits of the case may not
be required by courts while considering an application for bail but, at the same
time, exercise of jurisdiction has to be based on well settled principles and in a
judicious manner and not as a matter of course as held by the Court in the case
of Chaman Lal v. State of U.P. and Anr. (2004) vol. 7 SCC 36.
10. In view of above, there need to be compelling reasons for
suspension of sentence and grant of bail under Section 389 Cr.P.C. It is to be
ascertained if there is patent infirmity in order of conviction or other cogent
reasons exist for release on bail.
11. Reverting back to the facts of the present case, the allegation
against the accused/applicants is that they assaulted the deceased with dao,
axe and spade. P.W.2 is the injured eye witness. According to him, the applicant
No.1 i.e. Brajeswar Bordoloi dealt a spade blow on the head of the deceased.
The medical officer also supported the fact that the deceased sustained injuries
on his head which is the cause of his death. The learned trial court has duly
dealt with the detailed contentions raised on behalf of the accused and reached
the conclusion that they have committed murder of the deceased.
12. It may be reiterated that the Appellate court, at the stage of
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suspension of sentence and release on bail till disposal of appeal, has to
examine if there is any patent infirmity in the order of conviction that renders
the conviction prima facie erroneous. The evidence is not to be re-assessed or
re-analyzed to suspend the execution of the sentence. The detailed observations
on merits of the case are not called for, at this stage lest it prejudices the case
of the applicant but the matter has been seen in the light of the settled
principles of law.
13. Learned counsel for the applicants has prayed that the applicant
No.1 may be released on bail during trial on medical ground only. As per
medical report submitted by the Medical & Heath Officer, District Jail, Morigaon,
it appears that on examination of the applicant No.1, he found the applicant
No.1 was having blood pressure, vertigo, migrainous headache. His blood
pressure was 190/100 on the date of examination i.e. 20.02.2023 and he has
also joint pain which are not serious in nature.
14. Having regard to the evidence on record and detailed reasons
recorded by the learned trial court, we are of the considered opinion that no
ground of suspension of sentence till disposal of the appeal are made out in the
present application.
15. The application is accordingly dismissed. The observation herein
have been made are prima facie only for the purpose of consideration of
application for suspension of sentence only.
16. The I/A stands disposed of accordingly.
JUDGE JUDGE
Comparing Assistant
