Gauhati High Court
Jabed Ali vs The State Of Assam And Anr on 25 September, 2023
Page No.# 1/5
GAHC010167332023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/664/2023
JABED ALI
S/O ISMAIL HOQUE @ SHEIKH
VILL.- MOISHALDANGA PART-I
P.S.- MANKACHAR
DIST.- SOUTH SALMARA-MANKACHAR.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P.
ASSAM.
2:MOHAMMAD PIRU SK.
S/O LATE AZGAR ALI
VILL.- BAMUNPARA
P.S.- MANKACHAR
DIST.- DHUBRI
ASSAM.
------------
Advocate for : MR. B K MAHAJAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
25.09.2023
(M. Zothankhuma, J.)
1. Heard Mr. N. Mahajan, learned counsel for the applicant and Ms. S. Jahan,
learned Additional Public Prosecutor for the State.
Page No.# 2/5
2. By filing this application u/s 389(3) Cr.P.C., the applicant has prayed for
suspending the operation of the sentence passed in the judgment and order of
conviction dated 06.06.2023 by the learned Sessions Judge, South Salmara-
Mankachar in Sessions Case No. 49/2021 (New) & Sessions Case No. 93/2015
(Old), thereby sentencing the appellant to undergo RI for life with a fine of
Rs.10,000/-, (Rupees ten thousand only) with default stipulations and to allow
him to go on bail.
3. The basic ground for suspending the sentence and releasing the petitioner
on bail is that one set of prosecution witnesses had taken the stand that PW-2
had caused the death of the deceased by hitting him with an axe, while another
set of witnesses had taken the stand that the applicant was the one, who had
hit the deceased with an axe. It is the case of the applicant that while the
evidence of PW2 is to the effect that the applicant had caused the death of the
deceased, the evidence of PW14 is to the effect that PW-2 had caused the
death of the deceased.
4. The learned counsel for the applicant submits that when there are two
sets of witnesses giving contrary evidence, the evidence which goes in favour of
the accused shall have to be adopted. In this regard, the learned counsel for the
applicant has relied upon the Division Bench judgment of this Court in Budhua
Mura vs. State of Assam, reported in 2002 (2) GLT 103.
5. The learned counsel for the applicant submits that the evidence of PW-12,
Page No.# 3/5
PW-13 and PW-14 is to the effect that PW-2, Md. Moynal Hoque, is the one who
had wielded the axe which had caused the death of the deceased, while the
evidence of PW-2 & PW-3 is to the effect that the applicant was the one who
had wielded the axe which had caused the death of the deceased. He
accordingly submits that as PW-12, PW-13 and PW-14 have not been declared
hostile witnesses, their evidence, which is in favour of the applicant would have
to be accepted by this Court. In this respect, he has relied upon the Division
Bench judgment of this Court in Sah Alom (Md.) vs. State of Assam &
Another, reported in 2021 (4) GLT 1043.
6. Ms. S. Jahan, learned Additional Public Prosecutor, on the other hand
submits that the evidence of PW-2, PW-3 and PW-6 has established the guilt of
the applicant, in having caused the death of the deceased, as he was the one
who wielded the axe which hit the deceased. She further submits that the
evidence of PW-12 is hearsay and the evidence of PW-13, which appears to be
in favour of the applicant, has only been made in the cross-examination. No
such statement has been made by PW-13 in his statement under Section 161
Cr.P.C. She submits that though PW-14, who is the shop owner has stated that
the PW-2 had taken an axe from his shop and hit the deceased, the statement
made by PW-14 in his 161 Cr.P.C. statement does not contain such averments.
She accordingly submits that the application should be rejected.
7. We have heard the learned counsels for the parties.
8. The evidence of PW-2, PW-3 and PW-6 is to the effect that the deceased
Page No.# 4/5
Alimuddin had been assaulted with an axe wielded by the applicant. The
evidence of PW-13, in his cross-examination, shows that he had denied the
suggestion that PW-2 was present with him on the date of occurrence. Though
it has been reflected in the cross-examination of PW-13 that PW-13 had stated
that PW-2 got one axe from the shop of PW-14 and attempted to inflict a blow
upon one Kuddus and the same had accidentally fallen upon the deceased, who
tried to rescue Kuddus, the same appears to be with regard to a suggestion.
The only evidence directly linking PW-2 with the death of the deceased
Alimuddin, is the evidence of PW-14 who has stated that PW-2 took an axe from
his shop and hit the deceased.
9. On perusing the evidence of PW-3 & PW-6, it prima facie appears that the
evidence of PW-3 to PW-6 have been contradicted.
10. On considering the contradictory evidence given by PW-2 and PW-14, we
are of the view that the sentence passed in the impugned Judgment dated
06.06.2023 in Session Case No. 49/2021 should be suspended, keeping in view
the judgment of this Court in Budhua Mura (Supra).
11. Accordingly, in view of the reasons stated above, the impugned Sentence
imposed upon the applicant, vide judgment and Order dated 06.06.2023 is
hereby suspended till final disposal of the appeal.
12. The applicant is accordingly allowed to go on bail, on a bail bond of Rs.
20,000/-, with two sureties of the like amount, to the satisfaction of the learned
Page No.# 5/5
Trial Court. The bail is however subject to the condition that the applicant will
not leave the State of Assam without prior permission of the learned Trial Court.
13. I.A. is accordingly disposed off.
JUDGE JUDGE
Comparing Assistant
