Page No.# 1/8 vs The State Of Assam
2025 Latest Caselaw 3484 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam on 25 February, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                                                          Page No.# 1/8

GAHC010220792024




                                                                    2025:GAU-AS:1998

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./3271/2024

            NILIMA KACHARI
            W/O LATE CHANDRA KANTA DAS
            VILL- BOALIMARI, P.S. ABHAYAPURI,
            DIST. BONGAIGAON, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M KHAN, MS J AKTAR,MR A K DAS

Advocate for the Respondent : PP, ASSAM,




             Linked Case : Bail Appln./3546/2024

            BENIMA KACHARI @ SILA
            W/O RAJIB BASUMATARY
            R/O VILLAGE- SIALMARI
            PS. DUDHNOI
            DISTRICT- GOALPARA
            ASSAM


             VERSUS
                                                                                        Page No.# 2/8

             THE STATE OF ASSAM
             REP BY THE PP
             ASSAM


             ------------
             Advocate for : MR. K K HANDIQUE
             Advocate for : PP
             ASSAM appearing for THE STATE OF ASSAM



                                   BEFORE
                 HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                             ORDER

25.02.2025 Heard Mr. M. Khan, learned counsel for the petitioner in Bail Application No. 3271/2024 and Ms. M Bora, learned counsel for the petitioner in Bail Application No. 3546/2024. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor, Assam for the State in both the bail applications.

2) Smti. Nilima Kachari, wife of late Chandra Kanta Das, resident of Village-Boalimari, Police Station-Abhayapuri, District-Bongaigaon has filed the Bail Application No. 3271/2024 under Section 483 BNSS, 2023 praying for her bail in Sessions Case No. 73 (BGN)/2024, arising out of Bongaigaon Police Station Case No. 226/2024, registered under Section 302 IPC read with Sections 25 (1-A)/ 27/35 of the Arms Act, corresponding to PRC Case No. 327/2024, in which she was arrested on 01.07.2024 and is in custody since then. It is to be noted herein that the petitioner of Bail Application No. 3271/2024, Nilima Kachari is the informant of said Bongaigaon P.S. Case No. 226/2024.

3) Smti. Benima Kachari @ Sila, wife of Sri Rajib Basumatary, resident of Village-Sialmari, Police Station-Dudhnoi, District-Goalpara has filed the Bail Application No. 3546/2024 under Section 483 BNSS, 2023 seeking her bail in said Sessions Case No. 73 (BGN)/2024, arising out of Bongaigaon Police Station Case No. 226/2024, registered under Section 302 IPC read with Sections 25 (1-A)/ 27/ 35 of the Arms Act, corresponding to PRC Case No. 327/2024, wherein she was arrested on 01.07.2024 and is in custody since then. It is to be noted herein that the petitioner of Bail Application No. 3546/2024, Benima Kachari @ Sila is the sister of the of the petitioner of Bail Application No. 3271/2024, Nilima Kachari.

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4) As the petitioners of both B.A. Nos. 3271/2024 and 3546/2024, i.e., Nilima Kachari and Benima Kachari @ Sila have prayed for their bail in same Sessions Case No. 73 (BGN)/2024, arising out of same Bongaigaon P.S. Case No. 226/2024, corresponding to same PRC Case No. 327/2024, which is pending before the Court of learned Sessions Judge, Bongaigaon, in which they were arrested on 01.07.2024 and as agreed by the parties, both the Bail Application Nos. 3271/2024 and 3546/2024 of the petitioners, Nilima Kachari and Benima Kachari @ Sila, respectively, are taken up together for adjudication.

5) By orders dated 28.10.2024 passed in B.A. No. 3271/2024 and 22.11.2024 passed in B.A. No. 3246/2024, the Court called for the records of Sessions Case No. 73 (BGN)/2024 and Bongaigaon P.S. Case No. 226/2024, related to these two bail applications.

6) From the case records it is seen that on 27.06.2024 the petitioner of B.A. No. 3271/2024 Smti. Nilima Kachari lodged a written FIR before the Bongaigaon Police Station stating that on 26.06.2024 around 09:30 AM, her husband Chandra Kanta Das by his own vehicle bearing registration No. AS-19-L-7771 left for Chipanshila through Bongaigaon to attend his Office, i.e., Chipanshila Gaon Panchayat. She came to know that her husband entered into a shop of one Dharani Medhi at Kashidoba at around 02:30 PM and while he was taking tea in the shop of said Dharani Medhi, around 03:00 P.M. two miscreants came in a motorcycle, parked their motorbike in front of the shop of said Dharani Medhi and entered into his said shop and shot at her husband Chandra Kanta Das, and killed him instantaneously and thereafter, both the assailants fled away from the said place of occurrence.

7) Said FIR of the informant/petitioner of B.A. No. 3271/2024 Smti. Nilima Kachari was registered as Bongaigaon Police Station Case No. 226/2024 under Section 302 IPC read with Sections 25 (1-A)/27/35 of the Arms Act.

8) During the course of investigation, the accused persons of the case, i.e., petitioner of B.A. No. 3271/2024, (i) Smti. Nilima Kachari, wife of the deceased Chandra Kanta Das along with the petitioner of B.A. No. 3546/2024, (ii) Smt. Benima Kachari @ Sila wife of Rajib Basumatary, (iii) Manoj Kumar Basumatary @ Munition @ Mufur, son of Dharmeswar Basumatary, (iv) Sagra Narzary @ Taklu, son of Late Ramesh Narzary, (v) Lukendra Basumatary @ Lukend, son of Hebal Daimary (vi) Junel Daimary @ Double Mongora, son of Hebal Daimary, (vii) Jyotish Daimary @ Jutish, son of Hebal Daimary and (viii) Nakul Iswary @ Hagrama, son of Late Jagat Iswary were Page No.# 4/8

arrested.

9) From the records of the case, it is seen that police after completion of the investigation of the case submitted the charge sheet in said Bongaigaon P.S. Case No. 226/2024 on 23.09.2024 against the accused persons of the case, named above, including the two petitioners under Sections 120(B)/ 302/201 of the IPC read with Sections 25 (1-A)/27/35 of the Arms Act.

10) After filing of the said charge sheet in Bongaigaon P.S. Case No. 226/2024 on 23.09.2024, the said Bongaigaon P.S. Case No. 226/2024 was re-numbered as Sessions Case No. 73 (BGN)/2024 before the Court of learned Sessions Judge, Bongaigaon.

11) The learned Sessions Judge, Bongaigaon on 21.10.2024 framed charge under Sections 120(B)/302/201 IPC read with Sections 25(1-A)/ 27(2)(3)/35 of the Arms Act against the petitioner of B.A. No. 3271/2024 Nilima Kachari. On the same date, i.e., on 21.10.2024, by a separate order the learned Sessions Judge, Bongaigaon framed charge under Sections 120(B)/302 of the IPC read with Sections 25(1-A)/27(2)(3)/35 of the Arms Act against the petitioner of B.A. No. 3546/2024, Benima Kachari @ Sila.

12) From the charge sheet prosecution's case is that the petitioner of B.A. No. 3271/2024, Nilima Kachari suspected her husband Chandra Kanta Das, Gram Panchayat Secretary of Chiponsila Gaon Panchayat of having an illicit relationship with the former Gaon Panchayat President of the same Panchayat, one Subhanshree Narzary and because of that, said Nilima Kachari warned said Subhanshree Narzary, the former Gaon Panchayat President of Chiponsila Gaon Panchayat asking her to stay away from her husband Chandra Kanta Das. Suspecting of continuation of illicit relationship of her husband Chandra Kanta Das with said Subhanshree Narzary, former Gaon Panchayat President; the petitioner, Nilima Kachari, wife of Chandra Kanta Das had discussion with her sister, Benima Kachari @ Sila, i.e., the petitioner of B.A. No. 3546/2024, who is married and resides at Dudhnoi, District-Golapara. Said Benima Kachari @ Sila, through her in-laws and family relationship, including her husband Rajib Basumatary, was known to one Manoj Kumar Basumatary @ Munition @ Mufur, Ex-NDFB Cadre of Lakhipur, Goalpara. Said Benima Kachari @ Sila, at the instance of her sister Nilima Kachari engaged Manoj Kumar Basumatary @ Munition @ Mupur to eliminate said Chandra Kanta Das, her own brother-in-law, i.e., husband of Nilima Kachari. Said Manoj Kumar Basumatary @ Munition @ Mufur engaged his colleague Sagra Narzary @ Taklu, another Ex-NDFB Cadre, with whom said Manoj Kumar Page No.# 5/8

Basumatary had undergone training during the NDFB days in the NDFB Base Camp at Udalguri, to eliminate said Chandra Kanta Das on the request of Nilima Kachari because of his alleged illicit relationship.

13) Said Benima Kachari @ Sila initially paid Rs. 1,00,000/- to Manoj Kumar Basumatary @ Munition @ Mufur to eliminate Chandra Kanta Das, i.e., the deceased that was paid to her by Nilima Kachari, with an assurance to pay another amount of Rs. 2,00,000/- after the execution. Said Manoj Kumar Basumatary @ Munition @ Mufur along with Sagra Narzary @ Taklu and Nakul Iswary @ Hagrama and with the help of Jyotish Daimary, Junel Daimary @ Double Mongor and Lukendra Basumatary @ Lukend killed said Chandra Kanta Das on 26.06.2024. The accused Jyotish Daimary provided the murder weapon to commit the crime and the accused Sagra Narzary @ Taklu hired the killer Nakul Iswary @ Hagrama, where Junel Daimary @ Double Mongor, brother of the accused Jyotish Daimary was having close contact with Manoj Kumar Basumatary @ Munition @ Mufur, who along with Nilima Kachari and Benima Kachari @ Sila, planned the execution where Junel Daimary @ Double Mongor was the driver of the vehicle and accused Lukendra Basumatary @ Lukend, who is a farmer, kept the arm that was used in the crime, in his house on receipt of cash amount from Sagra Narzary @ Taklu.

14) The charge-sheet along with the call detail reports indicated close relationship of the petitioner Nilima Kachari and petitioner Benima Kachari @ Sila with said Manoj Kumar Basumatary @ Munition @ Mupur and Sagra Narzary @ Taklu.

15) Moreover, the petitioner Nilima Kachari, as per her promise paid Rs. 2,00,000/- to her sister Benima Kachari @ Sila after the execution of the crime that was to be paid to Manoj Kumar Basumatary @ Munition @ Mupur and police during investigation recovered the said amount of Rs. 2,00,000/- from Benima Kachari @ Sila.

16) During the investigation of the case the arm that was used in the crime, the bike by which the assailants came and also flew away and the Bolero car used by the other accused persons of the case were recovered. The CCTV footages as well as the Hotel records seized during the investigation of the case proved the presence of the accused persons Manoj Kumar Basumatary @ Munition @ Mupur, Jyotish Daimary, Sagra Narzary @ Taklu, Junel Daimary @ Double Mongor and Nakul Iswary @ Hagrama on the previous night of the incident around the place of occurrence and the CDR collected by police showed their presence in the place of occurrence and Page No.# 6/8

nearby during the time of the incident.

17) The FSL report of the arm seized during investigation of the case affirmed that it was used during the crime of the incident.

18) From the case records, it is seen out of 78 prosecution witnesses, named in the charge sheet, prosecution has adduced evidence five of its witnesses, including three protected prosecution witnesses, who were cross examined by the defence.

19) Mr. Khan, learned counsel appearing for the petitioner Nilima Kachari relied on the decision of the Hon'ble Apex Court in the case of Sanjay Chandra Vs Central Bureau of Investigation, reported in (2012) 1 SCC 40.

20) Mr. Khan, learned counsel for the petitioner Nilima Kachari relying the decision of said Sanjay Chandra (Supra) particularly the observations of the Hon'ble Apex Court made in Paragraph Nos. 21, 22, 23, 40, 41, 42, 43 and 46 of the said Judgment, submitted that considering the detention of the petitioner Nilima Kachari since 01.07.2024, her further custodial detention is not warranted as the trial of the case is presently going on and it is also not known as to when the said trial will come to an end after recording the evidence of 78 Nos. of prosecution witnesses. As such, considering her detention since 01.07.2024, Mr. Khan, learned counsel has prayed for bail of Smti. Nilima Kachari, petitioner of B.A. No. 3271/2024.

21) Ms. M Bora, learned counsel for the petitioner of B.A. No. 3546/2024 Smti. Benima Kachari @ Sila, adopted the same submission on behalf of the said petitioner as been submitted by Mr. Khan, learned counsel for the petitioner of B.A. No. 3271/2024, Nilima Kachari; sister of the accused petitioner Smti. Benima Kachari @ Sila.

22) Perused the decision of the Hon'ble Apex Court in Sanjay Chandra (Supra). It is seen that the case of Sanjay Chandra (Supra) is related to economic offences involving huge amounts of money. But in the cases in hand, relate to the murder of the husband of the informant, which prima facie appears be a cold blooded murder executed in a pre-planned manner as per the prosecution's case, specified in the charge sheet.

23) Law is well settled that in heinous offences involving murder, rape, dacoity etc., like in the present case of murder, once trial commences and the prosecution starts examining its witnesses, Page No.# 7/8

the Court, be it the Trial Court or the High Court, should be loath in entertaining the Bail Application of the accused persons. Once the trial commences, it should be allowed to reach to its final conclusion, which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercise its discretion in the favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets duly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering the release of the accused on bail on the ground that the right of the accused to have a speedy trial has been infringed. [ X Vs. State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC]

24) In the case in hand, commission of the offence occurred on 26.06.2024. During investigation, both the accused petitioners were arrested on 01.07.2024 and charge sheet in the case was filed on 23.09.2024. Charge in the case against the accused petitioners were framed on 21.10.2024 and as on 30.01.2025, prosecution has examined five of its witnesses including the protected witnesses, who were duly cross examined by the defence, including both the petitioners.

25) For the reasons above, this Court is of the opinion that the custodial detention of the petitioners, namely, (i) Nilima Kachari of B.A. No. 3271/2024 and (ii) Benima Kachari @ Sila of B.A. No. 3546/2024 since 01.07.2024, cannot be considered for their bail in said Sessions Case No. 73 (BGN)/2024 arising out of Bongaigaon P.S. Case No. 226/2024, pending before the Court of learned Sessions Judge, Bongaigaon where trial of the case is in progress.

26) Accordingly, both the bail applications of the petitioners, i.e., (i) B.A. No. 3271/2024 of Nilima Kachari, wife of Late Chandra Kanta Das and (ii) B.A. No. 3546/2024 of Benima Kachari @ Sila wife of Sri Rajib Basumatary in said Sessions Case No. 73 (BGN)/2024 arising out of Bongaigaon P.S. Case No. 226/2024, pending before the Court of learned Sessions Judge, Bongaigaon are rejected.

27) It is made clear that the Court of learned Sessions Judge, Bongaigaon while adjudicating the said Sessions Case No. 73 (BGN)/2024 arising out of Bongaigaon Police Station Case No. 226/2024 shall not be influenced with any of the observation or finding made herein Page No.# 8/8

above, in these bail applications.

JUDGE

Comparing Assistant