Gauhati High Court
Majid Ali @ Majid Ali vs The State Of Assam on 12 June, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/10
GAHC010012512025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/1246/2024
MAJID ALI @ MAJID ALI
S/O. LATE MOSLEM ALI SHEIKH
R/O. SHISHUBARI
P/S. AMGURI
DIST. CHIRANG
BTAD
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY THE PP
ASSAM
------------
Advocate for : MR. I U CHOWDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : I.A.(Crl.)/36/2025
JAKIR HUSSAIN @ JAKIR HUSSAIN
S/O LATE MD. YAD ALI
RESIDENT OF VILLAGE PUB KHANNARPARA
PS BIJNI
DIST CHIRANG
BTAD
ASSAM
Page No.# 2/10
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
------------
Advocate for : MR. M ISLAM
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Linked Case : I.A.(Crl.)/58/2025
ASMAT ALI @ AJMAT ALI @ AJMAD ALI
S/O SAHAJAHAN ALI
RESIDENT OF VILLAGE PUB KHAMARPARA
PS BIJNI
DIST CHIRANG
ASSAM
783390
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
2:SMTI ANUJA BRAHMA
W/O LATE RAM BHABAN YADAB @ ROBINDAR RAI
RESIDENT OF PUB SAPAGURI (DOHOLAPARA) PO CHAPAGURI
PS AND DIST BONGAIGAON
ASSAM 783380
------------
Advocate for : MR. A PHUKAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
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BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 12.06.2025
[Mitali Thakuria, J.]
Heard Mr. H. R. A. Choudhury, learned Senior Counsel assisted by Mr. I. U.
Chowdhury and Mr. M. Islam, learned counsel for the applicants in I.A.(Crl.) No.
1246/2024 & I.A.(Crl.) No. 36/2025, respectively; and Mr. S. Das, learned
counsel for the applicant in I.A.(Crl.) No. 58/2025. Also heard Ms. B. Bhuyan,
learned Senior Counsel and Additional Public Prosecutor appearing for the State
respondent.
2. These interlocutory applications under Section 389 of the Code of Criminal
Procedure, 1973, corresponding to Section 430 of the Bharatiya Nagarik
Suraksha Sanhita, 2023, have been filed seeking suspension of sentence and to
release the applicants on bail during the pendency of the connected appeals,
being Crl. A. No. 22/2025, Crl. A. No. 426/2024 & Crl. A. No. 15/2025.
3. The applicants have preferred the aforementioned criminal appeals
challenging the impugned judgment and order dated 28.11.2024, passed by the
learned Additional Sessions Judge, Bijni in Sessions Case No. 184(B)/2018,
whereby the applicant- Asmat Ali has been convicted under Section 120(B) IPC;
and applicants- Majid Ali and Jakir Hussain have been convicted under Sections
120(B)/302/392 of the Indian Penal Code and sentenced them to undergo R.I.
for life and also to pay a fine of Rs. 50,000/- under Section 302 of Indian Penal
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Code with default stipulation, R.I. for 7 (seven) years and also to pay fine of Rs.
20,000/- under Section 120(B) of Indian Penal Code with default stipulation and
R.I. for 10 (ten) years and also to pay a fine of Rs. 50,000/- under Section 397
of the Indian Penal Code with default stipulation.
4. The brief fact of the case, as projected by the applicants/ appellants, is
that the conviction and sentence passed by the learned Trial Court under
Section 302 of the Indian Penal Code is unsustainable in law inasmuch as the
learned Trial Court erred in appreciating the evidence on record properly and
passed the judgment on the basis of presumptions, inferences and assumptions
rather than cogent and reliable evidence. It is contended that the conviction is
based solely on circumstantial evidence without adherence to the settled
principles governing such cases. The applicants/appellants contends that in a
case based on circumstantial evidence, the circumstances relied upon must be
cogent, firmly established, and should form a complete and unbroken chain
pointing unerringly to the guilt of the accused and ruling out any hypothesis
consistent with innocence. However, in the instant case, the circumstances
relied upon by the prosecution were neither cogently proved nor sufficient to
link the applicants/appellants to the commission of the offence under Section
302 IPC in case of accused/applicant- Majid Ali and Jakir Hussain.
5. Further it is the case of the applicants/appellants that there are material
contradictions in the evidences of prosecution witnesses and that the F.I.R. was
lodged with an unexplained delay of three days. Further, the prime
suspect/accused, Hasen Ali, who was last seen with the deceased, was not sent
up for trial. Furthermore, the name of the applicant/appellant- Asmat Ali did not
appear in the F.I.R., and key witnesses (PWs- 1, 2 & 3) gave inconsistent
statements regarding the events and alleged extra-judicial confessions made by
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accused- Majid Ali and Asmat Ali before the villagers. Further, the learned Trial
Court, in paragraphs 51 and 52 of the impugned judgment, observed that the
applicant/appellant- Md. Majid Ali @ Abdul Majid led the Investigating Officer to
recover a "sabol" (iron rod used for digging) from his residence and that the
said object was used in the commission of the crime. However, there is nothing
on record to substantiate the claim that the victim was assaulted or killed with
the said object. The prosecution has failed to prove that the recovered "sabol"
was the weapon of offence, and the recovery, which was allegedly not made in
accordance with law, cannot be treated as incriminating evidence warranting
conviction.
6. It is further contended that the examinations of the applicants/appellants
under Section 313 of the Code of Criminal Procedure were not conducted in
compliance with the prescribed legal norms. The incriminating circumstances
relied upon by the prosecution were not put to the applicants/appellants during
their examination, thereby causing serious prejudice to their defence. It is a
settled proposition of law that any such circumstance not put to the accused
under Section 313 Cr.P.C. cannot be used against them to sustain a conviction.
More so, no motive for the alleged offence has been established, which assumes
significance in a case resting on circumstantial evidence. Accordingly, the
applicants/appellants contended that the impugned judgment and order of
conviction and sentence suffers from grave infirmities in law and fact, and
therefore pray for suspension of sentence and release them on bail pending
final adjudication of their appeals.
7. Mr. Choudhury, learned Senior Counsel for the applicants in I.A.(Crl.) No.
1246/2024 & I.A.(Crl.) No. 36/2025, submitted that there is no material to
suggest that any criminal conspiracy was made among the present
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accused/applicants. The learned Additional Sessions Judge, Bijni passed the
judgment and order of conviction only on the basis of statements recorded
under Section 161 Cr.P.C., which are not at all admissible in the eye of law. He
further submitted that the case of Asmat Ali [applicant in I.A.(Crl.) No. 58/2025]
and the case of Jakir Hussain [applicant in I.A.(Crl.) No. 36/2025] are on the
same footing who were allegedly found carrying the body of the deceased in a
handcart. But, surprisingly, the learned Trial Court convicted the
accused/applicant- Asmat Ali only under Section 120(B) IPC without any
evidence of criminal conspiracy, while the other accused/applicant- Jakir Hussain
was convicted under Sections 120(B)/302/392 IPC without any
evidence/allegation of murder against him. Further Mr. Choudhury submitted
that in case of accused/applicant- Majid Ali also, there is no evidence of
committing murder of the deceased and it is one Hasen Ali who was last seen
together along with the deceased when they went out from their house, as per
the statement made by the wife/informant of the deceased. But, surprisingly,
said Hasen Ali was not sent up for trial and only on the basis of statement made
by the co-accused, the accused/applicant- Majid Ali was arrested in connection
with this case and he was also convicted under Section 302 IPC.
8. Mr. Das, learned counsel appearing on behalf of applicant in I.A.(Crl.) No.
58/2025, also submitted that the accused/ applicant- Asmat Ali was implicated
subsequently in the case applying provision under Section 319 Cr.P.C. and there
is no material on record justifying his conviction under Section 120(B) IPC.
9. Accordingly, it is submitted by the learned counsel appearing on behalf of
the applicants that the learned Additional Session Judge committed serious
illegality while passing the judgment and order, which is prima facie in the face
of the record, and therefore it is a fit case wherein all the applicants can be
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released on bail by suspending the order of conviction passed against them till
the final disposal of the connected appeals.
10. Ms. Bhuyan, learned Senior Counsel and Additional Public Prosecutor,
submitted in this regard that as per the co-accused person, the dead body of
the deceased was taken from the house of the accused/applicant Majid Ali by
the other 2 (two) accused/applicants- Asmat Ali and Jakir Hussain, which
reveals from their extra-judicial confessions. Further, as per PW-3 also, the
applicant- Asmat Ali brought the dead body from the house of the co-accused
Majid Ali. Further she submitted that as per PW-3, while the accused persons-
Asmat Ali and Jakir Hussain were pushing and pulling the handcart, they asked
them that what was carried by them, and then they replied that they used to
work with bricks and they were carrying some materials in the handcart.
Thereafter, the accused- Jakir Hussain fled away from that place and the other
accused- Asmat Ali was caught red handed with the dead body and thus, it is
seen that they tried to suppress the matter and the accused- Asmat Ali also
stated that he took the dead body from the house of Majid Ali. Thus, the
accused- Asmat Ali made a confession before the PW-3 as well as PW-4 and his
extra-judicial confession cannot be disbelieved as there is no evidence of having
any enmity or previous grudge with the said PWs-3 & 4. Ms. Bhuyan, learned
Additional Public Prosecutor, accordingly, raised objection and submitted that
there are sufficient prima facie materials against the accused/applicants and
hence, their bail petition filed under Section 389 IPC may not be considered at
this stage.
11. After hearing the submissions made by the learned counsel for both sides,
we have also perused the case record and the judgment and order dated
28.11.2024, passed by the learned Additional Sessions Judge, Bijni in Sessions
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Case No. 184(B)/2018.
12. From the F.I.R. as well as from the statement made by the PW-1, the
informant of this case, it is seen that her husband/deceased went with one
Hasen Ali on the day of incident in a Indica Car carrying an amount of Rs.
2,00,000/- as he used to deal with the scrap materials, but he did not return on
the said night and his phone was also found switched off. Thereafter, getting
information from Bijni Police Station, she went there and found the dead body
of her husband. So, from her evidence as well as from the statement made in
the F.I.R., it is seen that her deceased husband went with one Hasen Ali on the
relevant night of incident and there was no mention about the other accused
persons in the F.I.R. and said Hasen Ali was known to her as he used to visit
their house on some previous occasion also. But, from the materials available in
the case record as well as from the evidence of the PWs, it is seen that prima
facie there is no evidence of any criminal conspiracy against the present
applicants and the entire case is based on circumstantial evidence as there is no
eye witness to the prosecution. More so, from the judgment passed by the
learned Additional Session Judge, it is seen that the judgment is based on
basically the statement made by the witnesses under Section 161 Cr.P.C., which
is not admissible in the eye of law. It is the allegation that the deceased went
with one Hasen Ali carrying Rs. 2,00,000/-, but there is no evidence against
these accused/applicants regarding any robbery or snatching of money to
attract Section 392 IPC. However, the allegation brought against the
accused/applicants- Jakir Hussain and Asmat Ali, that they were carrying the
dead body of the deceased on a handcart. But, surprisingly, there is no addition
of Section 201 IPC if they were trying to disappear the evidence. However, there
is no iota of evidence in regards to commission of murder by the said
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accused/applicants- Jakir Hussain and Asmat Ali, who were allegedly carrying
the dead body on a handcart.
13. Furthermore, the case of the other accused/applicant- Majid Ali, who is
also convicted under Sections 120(B)/302/392 IPC, it is seen that except the
statement made by the Asmat Ali, there is no evidence that the dead body was
brought from the house of said Majid Ali nor there is any evidence that Majid Ali
used to stay in the said house. It is the allegation that one "sabol" was
recovered from the house of the said Majid Ali. But, as per the post-mortem
report, the death was caused due to asphyxia and there is no sign of any other
injuries, though it is alleged that one "sabol" was used while committing the
murder of the deceased. In paragraph No. 70 of the judgment, it has been held
by the learned Additional Session Judge that as per I.O., the "sabol" was used
to press the neck by their feet and thus, the "sabol" was used for strangulating
the deceased. However, in paragraph No. 70 of the judgment, the learned
Additional Session Judge made the entire discussion only considering the
statement of the I.O., which has been described while investigating the case
and while recording the statement of witnesses under Section 161 Cr.P.C., which
is not at all admissible in the eye of law.
14. In view of the foregoing discussion, we are of the considered opinioin that
the applicants have succeeded in establishing a prima facie case for suspension
of the execution of sentence. Thus, considering the submission made by the
learned counsel both sides and other circumstances of this case, we find it
appropriate to allow the interlocutory applications. Accordingly, the operation of
the sentence dated 28.11.2024, passed by the learned Additional Sessions
Judge, Bijni in Sessions Case No. 184(B)/2018, is hereby suspended till final
disposal of the connected criminal appeals, being Crl. A. No. 22/2025, Crl. A.
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No. 426/2024 & Crl. A. No. 15/2025. The applicants are accordingly allowed to
go on bail by executing a bond of Rs. 50,000/- (Rupees fifty thousand) only
each with one surety of like amount to the satisfaction of the learned Additional
Sessions Judge, Bijni.
15. However, the observation made hereinabove are confined only for the
purpose of considering the present interlocutory applications and hence the
observations made above shall not be construed as observations in respect of
the merits of the accompanying criminal appeals.
16. In terms of above, these interlocutory applications stand disposed of.
JUDGE JUDGE
Comparing Assistant
