Gauhati High Court
Hasen Ali vs The State Of Assam And Anr on 11 January, 2024
Author: M. Zothankhuma
Bench: Michael Zothankhuma, Malasri Nandi
Page No.# 1/7
GAHC010157562023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/675/2023
HASEN ALI
S/O AKHER ALI
R/O AKHER ALI
VILL.- HALDHIAPAR
P.S.- CHAPAR
DIST.- DHUBRI.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P.
ASSAM.
2:MD. MOHAR ALI
S/O LT. BARON ALI
VILL.- KHARSHIMARI
P.S.- PANCHARATNA
BONGAIGAON.
------------
Advocate for : MR. A K BHUYAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
Linked Case : Crl.A./286/2023
HASEN ALI
S/O AKHER ALI
R/O AKHER ALI
VILL.- HALDHIAPAR
P.S.- CHAPAR
Page No.# 2/7
DIST.- DHUBRI.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P.
ASSAM.
2:MD. MOHAR ALI
S/O LT. BARON ALI
VILL.- KHARSHIMARI
P.S.- PANCHARATNA
BONGAIGAON.
------------
Advocate for : MR. A K BHUYAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
I.A.(Crl.)/679/2023
AKHER ALI
S/O LATE MOZIBAR MONDAL RESIDENT OF VILLAGE HALDHIAPAR
PS CHAPAR
DIST DHUBRI
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:MD. MOHAR ALI
S/O LATE BARON ALI
RESIDENT OF VILLAGE KHARSHIMARI
PS PANCHARATNA
BONGAIGAON.
------------
Advocate for : MR. A K BHUYAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
Linked Case : Crl.A./288/2023
AKHER ALI
S/O LATE MOZIBAR MONDAL
Page No.# 3/7
RESIDENT OF VILLAGE HALDHIAPAR
PS CHAPAR
DIST DHUBRI
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:MD. MOHAR ALI
S/O LATE BARON ALI
RESIDENT OF VILLAGE KHARSHIMARI
PS PANCHARATNA
BONGAIGAON.
------------
Advocate for : MR. A K BHUYAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
11.01.2024
(M. Zothankhuma, J)
1. Heard Mr. A.K. Bhuyan, learned counsel for the applicants in I.A. (Crl.)
675/2023 in Crl. A. 286/2023 and I.A. (Crl.) 679/2023 in Crl. A. 288/2023. Also
heard Ms. A. Begum, learned Addl. P.P., Assam appearing for the State
respondent.
2. These two applications, which have been filed by Hasen Ali [I.A. (Crl.)
675/2023] and Akher Ali [I.A. (Crl.) 679/2023] are being disposed of by this
common order.
3. The two applicants in these two applications under Section 389 Cr.P.C pray
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for suspension of the sentence passed by the learned Addl. Sessions Judge,
Bilasipara, Assam in Sessions Case No. 168/2012, pursuant to the judgment and
order dated 28.06.2023.
4. At the outset, it may be stated that the applicant Hasen Ali is the son of
the applicant Akher Ali.
5. The applicants herein along with eight other co-accuseds have been
convicted under Sections 147/148/302/201 IPC read with Section 149 IPC and
sentenced (1) to undergo simple imprisonment for 1(one) year under Section
147 IPC; (2) to undergo simple imprisonment for 2(two) years under Section
148 IPC; (3) to undergo rigorous imprisonment for life under Section 302/149
IPC and to pay fine of Rs.10,000/-(Rupees Ten Thousand) each and in default,
to undergo simple imprisonment for 2(two) months; and (4) to undergo simple
imprisonment for 2(two) years under Sections 201/149 IPC and to pay fine of
Rs.4,000/-(Rupees Four Thousand) each and in default, to undergo simple
imprisonment for another 1(one) month. All the sentences were directed to run
concurrently.
6. The matter pertains to the murder of two persons, namely Jahar Ali and
Sahar Ali on 21.09.1999.
7. The learned counsel for the applicants submits that the applicants were
co-accused along with 8(eight) other persons in respect of the charge of
murdering Jahar Ali and Sahar Ali who are all convicted by the learned trial
Court. The applicants' counsel submits that there was a delay of two days in
filing the FIR, besides the fact that in terms of the Form used by the learned
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trial Court for examining the applicant Hasen Ali under Section 313 Cr.P.C, the
age of the applicant Hasen Ali was shown as 35 years of age in the year 2020,
thereby implying that Hasen Ali was only 14 years of age at the time of the
incident. He also submits that in the production letter submitted by the police to
the Magistrate's Court in the year 1999, Hasen Ali was shown as 52 years of
age. However, in the charge-sheet dated 29.12.2000, Hasen Ali was shown to
have expired. In view of the fact that Hasen Ali was shown to have expired in
the charge-sheet dated 29.12.2000, it could not be understood as to how the
statement of Hasen Ali could have been taken under Section 313 Cr.P.C in the
year 2020. In any event, the age of Hasen Ali being shown as 35 years in the
Form used for his examination under Section 313 Cr.P.C, the conviction of Hasen
Ali would have to be set aside, as he was a minor at the time of the incident.
8. The learned counsel for the applicants submits that the applicant Akher Ali,
who is the father of Hasen Ali is 72 years old and accordingly, bail should be
granted to Akher Ali on humanitarian ground. He also submits that there are
5(five) eyewitnesses to the incident as per the evidence recorded. They are PW
Nos.5, 6, 8, 11 and 15. He submits that PW Nos. 5 and 6 gave evidence on
being brought from jail. As they were having enmity with the present applicants
and other co-accused, their evidence could not be relied upon. He submits that
the evidence of PW Nos. 8, and 11 does not make a whisper of the involvement
of Hasen Ali and Akher Ali in the assault made on the two dead persons. As
such, the sentence should be suspended and the applicants should be released
on bail.
9. Ms. A. Begum, learned Addl. Public Prosecutor, on the other hand, submits
that the evidences of the prosecution witnesses clearly show the involvement of
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the applicants in assaulting the deceased persons, which led to their death. As
such, it would not be proper to suspend the sentence and release them on bail,
as their conviction has been made on the basis of the testimonies of
eyewitnesses, who are reliable witnesses.
10. A perusal of the LCR shows that there are two accused persons having
similar names, that is, Hasen Ali. However, the applicant herein is actually Hasen
Ali Mondal. Though the earlier Hasen Ali was 52 years of age and had expired
by the time the charge-sheet had been filed, the present applicant Hasen Ali
Mondal was arrested by the police only in the year 2002, wherein he was shown
to be 26 years of age. In the examination of Hasen Ali Mondal under Section
313 Cr.P.C in the year 2020, his age was shown to be 35 years and the name
'Mondal' was missing in the Form used for examining him under Section 313
Cr.P.C. Be that as it may, as the present applicant Hasen Ali has been shown to
be 26 years of age at the time of his arrest in the year 2002, there is nothing to
show that the present Hasen Ali was a minor at the time of the incident,
inasmuch as, the recording of the age of Hasen Ali in the Form under Section
313 Cr.P.C could have been a mistake. In any event, as the applicant has not
produced any document to show that he was a minor at the time of the
incident, the said issue cannot be decided at this stage. Further, no such stand
that he was a minor had been taken by Hasen Ali during trial or even by way of
any application in the present appeal.
11. A perusal of the evidence of PW No. 5 shows that the deceased person
Jahar Ali was being followed by Hasen Ali. Hasen Ali and others had assaulted
the victim Jahar Ali. The evidence of PW No. 6 shows that the applicant Hasen
Ali and Akher Ali were involved in the beating up of the deceased Jahar Ali. The
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evidence of PW No. 15 shows that Hasen Ali had caught hold of Jahar Ali and
that Jahar Ali had been beaten up by all the accused persons.
12. On considering the testimony of the above prosecution witnesses, we are
not inclined to allow these applications at this stage. The applications are
accordingly rejected.
13. The observations and findings made in this order shall not be considered to
be final observations or findings by the Court at the time of hearing the appeal.
14. The interlocutory applications are accordingly disposed of.
JUDGE JUDGE
Comparing Assistant
