Gauhati High Court
You Suchiang Khasia vs The State Of Assam And Anr on 8 May, 2024
Author: Suman Shyam
Bench: Suman Shyam
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GAHC010213972023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/916/2023
YOU SUCHIANG KHASIA
S/O LATE OBIN KHASIA
VILL.- DHOLIDHAR (PEDLA PUNJI)
P.S.- PANCHGRAM
DIST.- HAILAKANDI (ASSAM).
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P.
ASSAM.
2:ABDUL MOTLIB
S/O LATE KHURSHID ALI
VILL.- ALEKHARGOOL
P.S.- BADARPUR
DIST.- KARIMGANJ
ASSAM
PIN- 788710.
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Advocate for : MR. L R MAZUMDER
Advocate for : appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
08.05.2024
(Suman Shyam, J)
Heard Mr. L. R. Mazumder, learned counsel for the applicant/ appellant.
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Also heard Ms. S. Jahan, learned Addl. P.P., Assam appearing for the State.
The applicant herein, along with two other co-accused persons, were
convicted by the learned Sessions Judge, Karimganj by judgment and order
dated 07.08.2023 passed in connection with Sessions Case No.63/2016 for
committing offences under Sections 302/307/149/148 of the IPC read with
Section 25(1-A) of the Arms Act and inter-alia sentenced to undergo rigorous
imprisonment for life and also to pay fine with default stipulation. The applicant
as appellant has assailed the judgment and order dated 07.08.2023 by filing
Criminal Appeal No.368/2023 which is pending disposal before this Court. The
applicant is in jail since 07.08.2023. As such, the present I.A. has been filed
invoking the jurisdiction of this Court under Section 389(2) of the Cr.P.C. with a
prayer to suspend the jail sentence of the applicant and also to release him on
bail.
The State has filed objection opposing the prayer for grant of bail to the
applicant.
Mr. Mazumder, learned counsel for the applicant has argued that there is
no evidence available on record ascribing any specific role to his client leading
to the death of the deceased or injury to any of the victims and the learned trial
Court has also failed to record proper finding as regards the existence of
"common object" of the unlawful assembly so as to convict the applicant with
the assistance of Section 149 of the IPC. Contending that the learned court
below had failed to consider the materials on record which indicated that the
gun shot leading to the death of the deceased was fired by the
deceased/accused Diken Amse alias Diken Khasia in exercise of his right of self
defence and that too, from a licensed fire-arm, Mr. Mazumder has argued that
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the impugned judgment and order of conviction is wholly unsustainable in the
eyes of law. Arguing that there is a strong possibility that just like the other four
co-accused, his client may also be acquitted after final hearing of the
connected appeal, Mr. Mazumder has submitted that the present is a fit case
where the applicant deserves to be released on bail during the pendency of
the appeal. It is also the submission of Mr. Mazumder that his client will abide by
any condition that may be imposed by the Court for his release on bail.
Ms. S. Jahan, learned Addl. P.P., Assam, on the other hand, has opposed
the bail prayer by contending that there is evidence available on record to
show that the applicant, along with his associates, were part of an unlawful
assembly and that there were indiscriminate gunshot fired from multiple
weapons not only leading to the death of the deceased but also causing
serious injuries to as many as four other persons. Contending that the common
object of the unlawful assembly leading to the death of the deceased Hussain
Ahmed and injury to his companions have been properly established, she
submits that there is no scope for releasing the applicant on bail during the
pendency of the appeal.
We have considered the submissions made at the Bar and have also
gone through the materials available on record.
It appears that the incident occurred on 09.09.2012 at around 11:30 A.M.
when the informant and other co-sharers of the land went to the disputed land
for cleaning the jungles. At that time, the F.I.R. named accused persons had
allegedly attacked them with firearms. It further appears that names of as many
as 10 FIR named accused persons were included in the charge-sheet submitted
by the police. However, during trial, as many as three accused persons had
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died as a result of which, the trial proceeded only against 7 accused persons.
Eventually, the learned trial court had convicted the present applicant, viz., You
Suchiang Khasia along with two other accused persons viz., Ala Uddin and Bijoy
Amse under Sections 148/324/307/302/149 IPC read with Sections 25(1-A)/27(1)
of the Arms Act and sentenced them, as noted above. However, four other
accused persons were acquitted by the learned trial Court.
On examination of the materials available on record we prima-facie find
that the evidence on record does not clearly ascribe any specific role to the
applicant herein in committing the offence under Section 302 of I.PC. It appears
that the death of the deceased viz., Hussain Ahmed was the outcome of injury
caused by a bullet which, according to the defence side, was fired from the
licensed arm of deceased accused Diken Amse.
PW-11 i.e. the I.O. has also stated in his cross-examination that the
complainant and his associates had become violent and had set the house of
accused Diken Amse (since deceased) on fire, who then resorted to gunshot, in
exercise of his right of self defence.
The learned trial Court has also observed that it was a case of
indiscriminate firing by more than five persons by use of deadly weapons after
forming an unlawful assembly. Whether such indiscriminate firing by an
assembly of five persons by itself can be treated to be an act of the unlawful
assembly in pursuance of a common object, for causing death or grievous
injuries to the deceased or other injured persons, is a matter which would call for
deeper examination by the Court which will be possible only at the stage of
final hearing of the appeal. However, Paper Book is not yet ready in the
connected appeal. As such, hearing of the Criminal Appeal may take some
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time.
We have also taken note of the fact that based on the same set of
evidence, four other accused persons, alleged to have been part of the
unlawful assembly, have been acquitted by the learned court below. Under the
circumstances, we are of the unhesitant opinion that the applicant has made
out a strong prima-facie case for allowing him to be released on bail pending
disposal of the connected appeal.
We, therefore, direct that the applicant, viz., You Suchiang Khasia be
released on bail on furnishing a bond of Rs.30,000/- with one local surety of like
amount to the satisfaction of the learned Sessions Judge, Karimganj. It would,
however, be open for the learned Sessions Judge, Karimganj to impose any
other additional condition(s), as may be deemed fit and proper in the facts and
circumstances of the case, for releasing the applicant on bail in terms of this
order.
Before parting with the record, we make it clear that our observations
made herein above are prima-facie in nature, made for the limited purpose of
disposing of the I.A. and the same shall not have any bearing during the final
hearing of the appeal.
With the above observation, the I.A. stands disposed of.
JUDGE JUDGE
Comparing Assistant
