Gauhati High Court
Azahar Ali Khan vs The State Of Assam And Anr on 16 October, 2023
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GAHC010175282023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/708/2023
AZAHAR ALI KHAN
S/O LATE MOHUR UDDIN KHAN, R/O KALAPAKANI PART- II, P.S.- DHUBRI,
DIST.- DHUBRI, ASSAM, PIN- 783324.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:NOOR HUSSAIN @ NUR HUSSAIN
S/O LATE MOHAMMAD ALI
R/O KALAPAKANI PART- II (KHAPARA)
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783323
Advocate for the Petitioner : MR. B D KONWAR SR. ADV.
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./299/2023
AZAHAR ALI KHAN
S/O LATE MOHUR UDDIN KHAN
R/O KALAPAKANI PART- II
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P.S.- DHUBRI
DIST.- DHUBRI
ASSAM
PIN- 783324.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P.
ASSAM.
2:NOOR HUSSAIN @ NUR HUSSAIN
S/O LATE MOHAMMAD ALI
R/O KALAPAKANI PART- II (KHAPARA)
P.S. AND DIST.- DHUBRI
ASSAM
PIN- 783323.
------------
Advocate for : MR. B D KONWAR SR. ADV.
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 16.10.2023
(Michael Zothankhuma, J.)
Heard Mr. B.D. Konwar, learned Senior counsel assisted by Mrs. J.M. Konwar, learned
counsel for the applicant and Ms. J. Jahan, learned Additional Public Prosecutor for the State
of Assam.
2. This application under Section 389 Cr.P.C. has been made for suspending the sentence
requiring the applicant to undergo rigorous imprisonment for life and to pay a fine of
Rs.5,000/-, in default to undergo simple imprisonment for three months, pursuant to the
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impugned judgment and order dated 08.06.2023 passed by the Court of the learned
Additional Sessions Judge, Dhubri, Assam in Sessions Case No. 286/2015, whereby the
applicant has been convicted under Section 302 IPC.
3. The applicant's counsel submits that the evidence of the prosecution witnesses nowhere
indicates the involvement of the applicant in causing the death of the deceased. He submits
that though some of the prosecution witnesses had stated in their testimony that the police
had recovered one axe, one rope, one blood stained knife, blood stained cloth etc. from the
house of the applicant, no axe, blood stained knife or blood stained cloth had been produced
or exhibited before the learned Trial Court. He also submits that though the police had seized
some blood stained grass and exhibited the same, the police had not been able to connect
the blood found on the grass with the blood type of the deceased. He submits that the
seizure of the rope by the police does not have any relevance, in as much as, the deceased
had died due to an injury caused by a sharp edged weapon, as per opinion of the Medical
Officer. He also submits that though some of the prosecution witnesses had allegedly stated
that the deceased was to be taken to the house of the applicant, there is no proof that the
applicant had been taken to the house of the applicant. He also submits that though P.W.9
and P.W.12 had given their statements under Section 164 Cr.P.C., to the effect that deceased
had been invited to the house of the applicant, the said statements had not been exhibited
during trial.
4. Ms. S. Jahan, learned Additional Public Prosecutor, on the other hand submits that P.W.1
and P.W.2 in their evidence had stated that the deceased had been asked to meet the
applicant. Further, P.W.12 had stated that he had seen the deceased being taken towards the
house of the applicant. The body of the deceased was found in a pool, at the back of the
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house of the applicant and no explanation for the same had been given by the applicant.
Thus, the circumstantial evidence available proved the guilt of the applicant.
5. We have heard the learned counsels for the parties. We have noticed that though the
testimony of some of the witnesses is to the effect that blood stained knife, an axe and blood
stained cloth had been recovered from the house of the applicant, no such materials had
been produced before the learned Trial Court. Though the circumstantial evidence is
suggestive of the fact that the applicant was involved in the murder of the deceased, there is
no direct evidence linking him to the same. Further, the statements under Section 164 Cr.P.C.
made by PW9 and PW12 were not exhibited during trial. Without going deep into the
evidence adduced by the prosecution witnesses, we are of the view that the applicant has
made out a prima facie case for suspension of sentence imposed upon him. Consequently,
the sentence imposed, pursuant to impugned judgment and order dated 08.06.2023 passed
by the learned trial court in Sessions Case No. 286/2015, is hereby suspended. Consequently,
the applicant is allowed to go on bail on a bail bond of Rs.30,000/- with one suitable surety of
like amount, to the satisfaction of the learned Additional Sessions Judge, Dhubri, Assam.
6. The interlocutory application is accordingly disposed of.
JUDGE JUDGE
Comparing Assistant
