Gauhati High Court
Mantu Dey vs The State Of Assam And Anr on 24 January, 2023
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GAHC010155722022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/423/2022
MANTU DEY
S/O- LATE JAGANNATH DEY
VILL.- ARAIANI PT-1
P.S. BAGRIBARI
DIST. KOKRAJHAR
ASSAM
PIN- 783370.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
2:SMTI. DIPA SUTRADHAR
W/O- JAYDEB CH. SUTRADHAR
R/O- ARAIANI
PT-1
P.S. BAGRIBARI
DIST. KOKRAJHAR
ASSAM
PIN- 783370.
------------
Advocate for : MR. M U MAHMUD
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
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BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
24.01.2023
(Ajit Borthakur, J)
Heard Mr. M.U. Mahmud, learned counsel for the accused appellant as well
as Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent No.
1.
2. By this interlocutory application under Section 389 (1) Cr.P.C., the accused
appellant, who is convicted vide the impugned Judgment and Order, dated
20.07.2022, passed in Sessions Case No. 109/2019 by the learned Asstt.
Sessions Judge, Kokrajhar and sentenced to undergo R.I. for 10 years with fine
of Rs.10,000/- (Rupees Ten Thousand), in default, to undergo S.I. for another 3
(three) months u/s 376 of the IPC, has prayed for suspension of sentence and
to allow him to go on bail.
3. LCR is received in connection with Criminal Appeal No. 176/2022.
4. The prosecution case, in brief, is that an F.I.R., dated 16.07.2019, was
lodged by the victim woman alleging, inter-alia, that the accused/appellant,
since a long time, had been indicating obscene gestures to her. On 14.07.2019,
at around 2.30 a.m., while the alleged victim woman stepped out of home for
urinating, the accused appellant, all on a sudden, gagged her mouth with a
gamocha and by showing sharp weapon forcibly raped her. During the incident,
the victim's husband rushed to the spot and attempted in vain to apprehend the
accused appellant. The accused managed to flee away. In connection with the
aforesaid incident, a village bichar was convened to settle the incident amicably,
for which, the F.I.R. was lodged late.
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5. Mr. M.U. Mahmud, learned counsel appearing for the accused/appellant,
submits that the learned trial Court has convicted and sentenced the accused on
misappreciation of the evidence of the victim woman (P.W. 1) and other
evidence on record including that of the doctor (P.W. 7) as well as the
Investigating Officer (P.W. 8). Mr. Mahmud further submits that the learned trial
Court seems to have convicted the accused on moral ground only disregarding
the inherent inconsistency and lack of credence of the prosecution witnesses.
Mr. Mahmud also submits that despite there being no incriminating evidence
which can be termed as beyond all reasonable doubt, the accused appellant has
suffered more than 10 months in judicial custody and his conduct during trial of
the case was absolutely satisfactory and as such, subject to the result of the
connected appeal, he may be directed to be released on bail subject to suitable
condition, if deemed necessary. Mr. Mahmud has relied on the ratio of the
judgments rendered by the Hon'ble Supreme Court in 1. Mousam Singha Roy
and Ors. Vs. State of W.B., reported in (2003) 12 SCC 377 ; 2. Bhagwan Rama
Shinde Gosai and Ors. Vs. State of Gujarat, reported in (1999) 4SCC 421; 3.
Harjinder Singh alias Bhola Vs. State of Punjab, reported in (2004) 11 SCC 253;
4. Imrat Singh and Ors. Vs. State of Madhya Pradesh, reported in (2020) 14
SCC 257; 5. Samadhan Dhudaka Koli Vs. State of Maharashtra, reported in
(2008) 16 SCC 705; 6. State of Madhya Pradesh Vs. Ratan Singh and Ors.,
reported in (2020) 12 SCC 630 as well as the judgments rendered by this Court
in 1. Ramnarayan Jha Vs. State of Assam, reported in 1999 (1) GLT 54 and 2.
Bul Turi Vs. State of Assam, reported in 2014 (2) GLT 252.
6. Per contra, Mr. D. Das, learned Addl. Public Prosecutor appearing for the
state and referring to the grounds of objection, submits that the primary
question in this application is whether the evidence of the victim woman (P.W.1)
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instils the confidence of the Court and if her evidence is considered to be
inspiring, her evidence alone is sufficient for holding the accused guilty of the
charge. Therefore, Mr. Das submits that as the matter is now ready for hearing
after paper book is prepared, the matter may be finally disposed of on merit
instead of consideration of the instant bail application of the accused at the
present intermediate stage.
7. We have given due consideration to the above submissions of the learned
counsel of both the sides and perused records including the impugned judgment
and order and the judgments cited by the accused appellant's side referred to
above.
8. A perusal of the evidence of the victim woman (P.W. 1), it is prima facie
revealed that she is a married woman aged about 21 years and that the
accused appellant since before the alleged incident, had been uttering slang
language and touched her body. Further, the accused appellant took care of the
alleged victim's child for about 5-6 months before the incident indicating her
acquaintance with him from before and the aforesaid continuation of the alleged
unwarranted advancement of the accused towards her remained unreported
even to her husband as it has come in her cross-examination. The alleged
incident took place on 14.07.2019 at about 2.30 a.m. and the aforesaid incident
was reported after 2 days to the police ostensibly to arrive at an amicable
settlement in the village bichar. The medical examination was done at R.N.B.
Civil Hospital, Kokrajhar on 17.07.2019 at 1.10 p.m. and the doctor (P.W. 7)
reported that no injury mark was seen on her body and private parts vide
medical report, Exhibit-4. The aforesaid finding of the doctor casts on a different
perspective of the incident as has been highlighted in the cross-examination of
the Investigating Officer (P.W. 8). In this connection, we have perused the
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sketch map of the place of occurrence.
9. Having considered the submissions made by the learned counsel for both
the sides and consideration of the evidence so far recorded in the case, we are
of the considered opinion that subject to outcome of final hearing on merit of
the connected appeal, the accused appellant's prayer for bail may be considered
favourably.
10. Accordingly, it is provided that the sentence passed against the accused
appellant vide the impugned Judgment and Order, dated 20.07.2022, by the
learned trial Court of Asstt. Sessions Judge, Kokrajhar in Sessions Case No.
109/2019 shall remain suspended till disposal of Criminal Appeal No. 176/2022
and the accused appellant is directed to be released on bail of Rs.50,000/-
(Rupees Fifty Thousand) only with one surety of like amount to the satisfaction
of said learned trial Court/Sessions Judge, Kokrajhar, Assam.
With the above directions, the Interlocutory Application stands disposed of.
JUDGE JUDGE
Comparing Assistant
