Gauhati High Court
Page No.# 1/5 vs State Of Assam And Anr on 8 January, 2024
Author: M. Zothankhuma
Bench: Michael Zothankhuma, Malasri Nandi
Page No.# 1/5
GAHC010140622023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/657/2023
RAHAM ALI AND 5 ORS.
S/O IDRISH ALI
RESIDENT OF VILLAGE SILONGANI
PO AND PS NAGAON
DIST NAGAON
ASSAM
2: NABI HUSSAIN
S/O JAFAR ALI
RESIDENT OF VILLAGE SILONGANI
PO AND PS NAGAON
DIST NAGAON
ASSAM
3: KERAMAT ALI
S/O IDRISH ALI
RESIDENT OF VILLAGE SILONGANI
PO AND PS NAGAON
DIST NAGAON
ASSAM
4: MAMTAZ ALI
S/O IDRISH ALI
RESIDENT OF VILLAGE SILONGANI
PO AND PS NAGAON
DIST NAGAON
ASSAM
5: KUDRAT ALI
S/O IDRISH ALI
Page No.# 2/5
RESIDENT OF VILLAGE SILONGANI
PO AND PS NAGAON
DIST NAGAON
ASSAM
6: NIYAMAT ALI
S/O IDRISH ALI
RESIDENT OF VILLAGE SILONGANI
PO AND PS NAGAON
DIST NAGAON
ASSAM
VERSUS
STATE OF ASSAM AND ANR
REPRESENTED BY PP ASSAM
2:MD. MAINUL HOQUE
S/O LATE MATAB ALI
RESIDENT OF NO 1 MOLLAPATTY
PO AND PS NAGAON
DIST NAGAON
ASSAM
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Advocate for : MR. A M BORA
Advocate for : PP
ASSAM appearing for STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
08.01.2024
(M. Zothankhuma, J)
1. Heard Mr. A.M. Bora, learned Senior Counsel assisted by Mr. V.A.
Chowdhury, learned counsel for the applicants and Ms. B. Bhuyan, learned
Additional Public Prosecutor for the State.
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2. This application under Section 389 Cr.P.C is for suspending the sentence
awarded to the applicants in pursuant to the impugned judgment dated
31.05.2023 passed by the Court of the learned Additional Sessions Judge, No.3,
Nagaon passed in Sessions (T-1) Case No.47(N)/2015, by which the applicants
have been convicted under Section 302 IPC and sentenced to life imprisonment
with a fine of Rs.5,000/- each and in default, to undergo rigorous imprisonment
for a period of one year.
3. The applicants' counsel submits that the vital witnesses in the present case
are PW-1, PW-3 and PW-5. He submits that the evidence of PW-3 is to the
effect that on hearing a commotion, he went to the place of occurrence wherein
he saw the deceased fall to the ground and that PW-1 and PW-5 had appeared
at the place of occurrence only after half an hour.
4. The learned Senior Counsel for the applicants further submits that though
PW-1 & PW-5, who are brothers and sons of the deceased, had given evidence
to the effect that all the six applicants had assaulted the deceased with a heavy
weapon, the evidence of PW-4, who is the Doctor showed that there was only
one injury to the head to the deceased. He accordingly submits that PW-1 &
PW-5 being interested witnesses, which was not corroborated by PW-3, the
evidence of PW-1 & PW-5 could not have been the basis for convicting the
applicants. Further, the evidence of DW-3 corroborates the evidence given by
PW-3, which is to the effect that the deceased had fallen down. It was only
thereafter that the family members of the deceased arrived at the place of
occurrence. He further submits that the evidence of PW-8, who was the
Investigating Officer of the case, showed that the evidence of PW-1 & PW-5 was
an improvement to the statement given by them to the police under Section 161
Cr.P.C. He accordingly submits that the sentence awarded to the applicants
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should be suspended and they should be released on bail.
5. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand
submits that PW-1 and PW-5 being eyewitnesses, whose evidences were not
contradicted, the application should be rejected. She further submits that there
were more than one injury on the head of the deceased, as can be seen from
the Doctor's evidence. She submits that in view of the statement of the
eyewitnesses, the application should be rejected.
6. We have heard the learned counsels for the parties.
7. The evidence of PW-1 & PW-5 is to the effect that they had seen the
applicants assault their deceased father and that their father died after he was
admitted to the hospital. There is no seizure of the weapon which was
apparently used to assault the deceased. The evidence of the Doctor is that
there were no wounds over the dead body, except in the skull portion.
8. The evidence of PW-3 on the other hand is that he was sleeping in the
house after taking dinner. As he heard a hue and cry outside his house, he went
to the place where there was a hue and cry and found that the deceased was
looking for his wife. When Siraj Master was making a phone call to the sons of
the deceased, namely Aminul, Nural and Mainul, the deceased had fallen down.
PW-3 also stated that the sons of the deceased arrived at the place of
occurrence half an hour after the deceased had fallen unconscious on the
ground.
9. Thus as can be seen from the above, there is a contradiction between the
evidence of PW-1 & PW-5 on one side and PW-3 on the other. However, on
perusing the statement made by PW-3 to the police under Section 161 Cr.P.C,
we find that PW-3 had not been made any statement to the police that PW-1 &
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PW-5 had come half an hour after the deceased had fallen unconscious on the
ground. In fact, he states in his statement under Section 161 Cr.P.C that he did
not see how the incident occurred. The statements made by PW-1 & PW-5
under Section 161 and 164 Cr.P.C vis-a-vis their testimonies, appears to be in
tandem with each other. On the other hand, the evidence of PW-3 appears to be
beyond his statement made under Section 161 Cr.P.C, though not declared a
hostile witness.
10. On considering the facts that the applicants have been convicted after
appreciating the evidence of the eyewitnesses (PW-1 & PW-5) by the learned
Trial Court, we are of the view that the sentence awarded to the applicants
should not be suspended at this stage. Accordingly, the application for
suspension of sentence and grant of bail is rejected.
11. Any observation or finding made in this order shall not be considered to
be the final observation or finding made by this Court, at the time of hearing the
appeal.
JUDGE JUDGE
Comparing Assistant
