Gauhati High Court
Bul Mudi vs The State Of Assam And Anr on 5 August, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010059932023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/217/2023
BUL MUDI
S/O LT MANGAL MUDI,
R/O SERELIA PATHAR,
P.O.- BEHALI,
P.S.- BEHALI,
DIST.- BISWANATH, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
NOTICE THROUGH P.P., ASSAM.
2:FAGU BIRJA
S/O LT. BIRCHING BIRJA
R/O KACHAMARI
P.O.- BEHALI
P.S.- BEHALI
DIST.- BISWANATH
ASSAM
Advocate for the Petitioner : MR. P J SAIKIA, B BURAGOHAIN
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
Date : 05-08-2024
[M. Choudhury, J]
Heard Mr. P.J. Saikia, learned counsel for the applicant-appellant and Ms. A.
Begum, learned Additional Public Prosecutor for the opposite party, State of
Assam.
2. The instant application is preferred under Section 389[1], Code of Criminal
Procedure, 1973 seeking suspension of execution of the sentence passed
against the applicant-appellant and for his release on bail.
3. The applicant-appellant has been convicted by a Judgment dated
27.09.2022 passed by the Court of learned Sessions Judge, Biswanath,
Biswanath Chariali in Sessions Case no. 285/2015 for the offences under Section
302, Indian Penal Code [IPC] and Section 457, IPC. For the offence under
Section 302, IPC, the applicant-appellant has been sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default of
payment of fine, to undergo rigorous imprisonment for another 1 [one] month.
4. Mr. Saikia, learned counsel for the applicant-appellant has submitted that
the prosecution claimed that the daughter of the deceased, P.W.4 was the only
eye-witness to the alleged incident of assault which resulted into the death of
the deceased. By referring to the testimony of the P.W.4, Mr. Saikia has
contended that the testimony of the P.W.4 as an eye-witness does not inspire
confidence as the said witness has only cryptically mentioned that she
witnessed the assault on her mother without describing any details as regards
the weapon by which such assaults were made. He has further contended that
P.W.4 did not mention about the parts on the person of the deceased where the
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injuries were inflicted. Mr. Saikia has further contended that there is
contradiction in the testimony of the informant-P.W.1 qua the testimony of the
P.W.4. According to Mr. Saikia, it is, thus, not a case where reliance can be
placed on the only eye-witness to base an order of conviction.
5. The contention made by Mr. Saikia, learned counsel for the applicant-
appellant have been seriously opposed by Ms. Begum, by submitting that the
defence was not able to discredit P.W.4 in any manner and her testimony on the
material points was credible and trustworthy.
6. We have gone through the contents of the application preferred by the
applicant-appellant under Section 389[1], CrPC and the objection filed to the
said application on behalf of the State, apart from the materials/evidence on
record, available in the case record of Sessions Case no. 285/2015.
7. On perusal of the evidence/materials on record, it is found that the
deceased, Phuleswari Mudi died in her own house on 10.03.2015. From the
testimony of P.W.5, the Doctor who performed the post-mortem examination on
the dead body of the deceased and the Post-Mortem Examination Report [Ext.-
2], it can be noticed that there were several injuries on the person of the
deceased. The spinal cord of the deceased was completely cut. There was an
incisional wound at temporo parietal area and there was an injury on the
occipital area also. The death of the deceased was due to cerebro vascular
accident as a result of the injury sustained. Prima facie, the deceased met a
homicidal death. On perusal of the evidence/materials on record, it is found that
the alleged incident had occurred during the evening hours of 10.03.2015. P.W.4
was the daughter of the deceased. P.W.4 testified to the effect that at around
06-30 p.m. on 10.03.2015, the accused trespassing into their house, killed her
mother and seeing the same, she raised hue and cry. Then the accused chased
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her and P.W.4 out of fear, had to run out of the house. It was elicited by the
defence by cross-examining her that at the time of occurrence, only she [P.W.4]
and her mother [the deceased] were there in the house. Thus, the presence of
P.W.4 in the house at the time of occurrence seemed natural. The defence did
not elicit anything material from the cross-examination of P.W.4 to discredit her
testimony that she was not in the house along with the deceased at the relevant
point of time, when the assaults were made.
8. It is settled that in cases involving conviction under Section 302, IPC, it is
only in exceptional cases that the benefit of suspension of sentence can be
granted. In considering the prayer for bail in a case involving a serious offence
like murder punishable under Section 302, IPC, the Court is required to consider
the relevant factors like the nature of allegations made against the accused, the
manner in which the crime is alleged to have been committed, the gravity of the
offence and the desirability of releasing the accused on bail after having been
convicted for committing the serious offence of murder. While undertaking the
exercise whether the convict has fair chances of acquittal, what is to be looked
into is something palpable, which is very apparent on the face of the record, on
the basis of which the court can arrive at a prima facie satisfaction that the
conviction may not be sustainable.
9. The learned trial court had arrived at a satisfaction that the testimony of
the only eye-witness, P.W.4 was credible and trustworthy to inspire confidence
in the absence of any contradiction in the testimony of material points, to base
the conviction.
10. Having gone through the testimony of the P.W.4 and the medical evidence,
which points towards the homicidal death of the deceased, we do not find any
merit in the present application. Thus, the prayer made by the applicant-
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appellant for suspension of the execution of sentence passed against him and
for his release on bail is found bereft of merit.
11. Consequently, the instant application deserves to be dismissed and it is
accordingly ordered.
12. It is observed that the observations made hereinabove are only for the
purpose of considering the applicant-appellant's prayer for suspension of
execution of the sentence passed against him and for his release on bail and
such observation shall not have any bearing on the merits of the accompanying
criminal appeal.
JUDGE JUDGE
Comparing Assistant
