Gauhati High Court
Page No.# 1/8 vs The State Of Assam And Anr on 9 June, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/8
GAHC010002792024
2025:GAU-AS:7502-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/27/2024
NURUL HOQUE @ NURAL HOQUE AND 4 ORS.
S/O LATE KURU SK @ KERU SHEIKH,
VILL.- MAJPARA, P.S.- BILASIPARA, DIST.- DHUBRI (ASSAM).
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM.
Advocate for the Petitioner : MR H R A CHOUDHURY,
Advocate for the Respondent : PP, ASSAM,
Linked Case : I.A.(Crl.)/32/2024
ROHIMUL ISLAM AND 2 ORS.
S/O AJIJUR RAHMAN
VILL.- MASPARA
P.S.- BILASIPARA
DIST.- DHUBRI (ASSAM).
2: AZAD ALI
S/O LATE FAZAR ALI
VILL.- MASPARA
Page No.# 2/8
P.S.- BILASIPARA
DIST.- DHUBRI (ASSAM).
3: MATIAR RAHMAN
S/O LATE FAZAR ALI
VILL.- MASPARA
P.S.- BILASIPARA
DIST.- DHUBRI (ASSAM).
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P.
ASSAM.
2:ABDUL BATEN
S/O LATE MOHAMMAD ALI
R/O BANGALIPARA PART- II
P.O.- BOLASIPARA
P.S.- BILASIPARA
DIST.- DHUBRI
ASSAM
PIN- 783348.
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
Page No.# 3/8
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
09.06.2025
(M. Thakuria, J)
Heard Mr. A. Ahmed, learned counsel for the applicants; Ms. B. Bhuyan,
learned Senior Counsel and Additional Public Prosecutor representing the State
respondent No.1; and Mr. M. A. Sheikh, learned counsel for respondent No.2.
2. These interlocutory applications are filed under Section 389 of the Code of
Criminal Procedure, 1973, praying for suspension of sentence and grant of bail
to the applicants during the pendency of the connected appeals.
3. It is to be mentioned here that the applicants have already filed appeals,
being Crl. A. No. 466/2023 and Crl. A. No. 5/2024, against the impugned
judgment and order dated 07.12.2023, passed by the learned Additional
Sessions Judge, Bilasipara, in Sessions Case No. 74/2015, whereby the
appellants/present applicants were convicted under Sections 147/ 148/ 341/
323/ 302/149 of the Indian Penal Code, and sentenced them to undergo, Simple
Imprisonment for 2 months U/S 147, S.I. for 3 months U/S 148, S.I. for 1 month
U/S 323/149, S.I. for 15 days U/S 341/149, and Rigorous Imprisonment for life
U/S 302/149 of the IPC, along with a fine of Rs. 10,000/- (Rupees ten
thousand) each, and in default of payment, to further undergo S.I. for 2
months. All the sentences were directed to run concurrently.
4. As per the order dated 11.12.2024, passed by the Division Bench of this
Hon’ble Court in I.A. (Crl.) No. 32/2024, bail has already been granted to
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accused/present applicant No. 2, Azad Ali.
5. Mr. Ahmed, learned counsel for the applicants, submits that the conviction
and sentences passed by the Trial Court are legally unsustainable due to serious
errors in the appreciation of evidence. The judgment is based on assumptions
and lacks proper evaluation of key facts. He contends that the prosecution failed
to prove the present applicants’/appellants’ involvement beyond reasonable
doubt and that the Trial Court overlooked material contradictions and failed to
assign due weight to the defence evidence. In particular, P.W.9, an alleged
injured eyewitness (who is the own brother of both the informant and the
deceased), had earlier made a G.D. Entry stating that the deceased was
assaulted by an unknown person. This significant contradiction was not
addressed in the judgment. The Court also failed to consider the defence
evidence and improperly relied on selective prosecution witnesses (P.W.4, P.W.6,
and P.W.9), contrary to the principle that defence and prosecution witnesses
must be treated equally.
6. He further submits that the requirements for conviction under Sections
147, 148, 149, and 302 of the IPC were not met. There was no clear evidence of
a common object or intention among the accused, particularly as the deceased
suffered only one injury, and the medical testimony did not confirm it to be fatal
in the ordinary course of nature. In light of these lapses, the conviction is
perverse and warrants appellate interference. Thus, he submits that the learned
Additional Sessions Judge, by misreading the evidence on record, has wrongly
convicted the applicants. There is every chance of success in the appeals, and
therefore, in the interest of justice, the applicants may be released on bail.
Accordingly, he prays for suspension of the sentence and submits that, the
applicants are willing to comply with any conditions imposed by this Court if
Page No.# 5/8
released on bail and will not misuse the liberty so granted.
7. Mr. Ahmed, learned counsel for the applicants, further submitted that the
FIR was lodged on 20.06.2013 at Bilasipara Police Station, but it was produced
before the learned Magistrate on 24.06.2013, and the Magistrate’s endorsement
was also made on 24.06.2013. He further submitted that the deceased died at
Hayat Hospital, Guwahati, and accordingly, a G.D. Entry was also made at the
Odalbakra Outpost, which was numbered as Odalbakra OP GDE No. 527 dated
23.06.2013. At the time of making the G.D. Entry, the informant did not name
any accused persons. However, at the time of filing the FIR, all the accused
persons were named, alleging their involvement in the offence. The prosecution
has not been able to establish the common object or intention of all the accused
persons as required under Section 149 of IPC. He also submitted that the
deceased sustained only one injury; therefore, the participation of all the
accused persons in the offence, as alleged in the FIR, is questionable.
8. Furthermore, P.W.9, the eyewitness and one of the victim in this case,
while deposing before the Court, brought allegations only against applicant
No.1, Rohimul Islam [I.A. (Crl.) No.32/2024], and did not incriminate the other
accused persons. According to Mr. Ahmed, the accused persons only intended to
snatch money due to a monetary dispute and had no common object or
intention to kill the deceased. Moreover, the other accused persons did not
assault the deceased. Accordingly, he submits that this is a fit case in which all
the applicants in both interlocutory applications, i.e., I.A. (Crl.) No.27/2024 and
I.A. (Crl.) No.32/2024, may be released on bail by suspending the sentence
imposed on them till the final disposal of the connected appeals. He further
submits that all the applicants are permanent residents of the addressed locality
and are ready to furnish sufficient sureties if granted bail.
Page No.# 6/8
9. Ms. Bhuyan, learned Senior Counsel and Additional Public Prosecutor,
submitted that P.W.9 is an eyewitness and a victim, and he clearly brought
allegations against the accused/applicants, detailing how they assaulted him
and the deceased at the time of the incident. She further submitted that P.W.4
and P.W.6 are also eyewitnesses who witnessed the incident of assault by the
accused/applicants. She argued that the defence has failed to establish a prima
facie case to grant bail by suspending the sentence, while the evidence may be
discussed and scrutinized at the time of final hearing of the appeal. But, there is
no palpable or glaring illegality in the impugned judgment and order dated
07.12.2023, passed by the learned Additional Sessions Judge, Bilasipara, in
Sessions Case No. 74/2015. Accordingly, she objected in allowing the
accused/applicants to be enlarged on bail.
10. On the other hand, Mr. Sheikh, learned counsel for respondent No.2,
submitted that the evidence of the prosecution witnesses cannot be conclusively
evaluated at this stage. It must be determined whether the case attracts Section
149 of IPC or whether there was any common intention or object to kill the
deceased by all the accused/applicants. He contended that the delay in placing
the FIR before the learned Magistrate does not vitiate the entire trial. Moreover,
all the accused/applicants were named in the FIR, which was duly registered at
Bilasipara Police Station. He also submitted that at the time of giving the G.D.
Entry at the Odalbakra Outpost, P.W.9 might not have been in a stable state of
mind to name all the accused/applicants, as it was made after the death of his
brother. He further objected to the application under Section 389 of Cr.P.C.,
submitting that it is not a fit case for granting bail by suspending the sentence.
11. After hearing the submissions of learned counsels for both sides, it
appears that Mr. Ahmed emphasized the delay in producing the FIR before the
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Magistrate and the non-mentioning of the accused/applicants’ names in the GD
entries at both Bilasipara Police Station and Odalbakra Outpost. He also raised
the issue of the prosecution’s failure to establish a common object or intention
of all the accused persons to kill the deceased, suggesting instead a motive
limited to a monetary dispute. However, upon perusal of the case record, it is
evident that the names of all the accused/applicants were mentioned in the FIR.
The mere non-mentioning of names in the G.D. Entry cannot be the sole basis
to discard or disbelieve the FIR, which was lodged soon after the victims were
sent for treatment. The G.D. Entry at Odalbakra Outpost was made after the
deceased died during treatment at Hayat Hospital. That G.D. Entry merely
recorded the death of the deceased and did not name the accused/applicants.
12. Though Mr. Ahmed submitted that P.W.9 did not implicate all the
accused/applicants, the record and evidence suggest otherwise. All the
accused/applicants were present at the scene, and some caused injuries to
P.W.9 and the deceased. Death of the deceased may be due to head injury
allegedly inflicted by applicant No.1 (Rohimul Islam), the fact that there was
only one fatal injury cannot alone rule out the possibility of common intention or
object without a thorough analysis of all the evidence.
13. Moreover, P.W.4 and P.W.6 also claim to be eyewitnesses who saw the
accused/applicants assaulting the deceased. The delay in producing the FIR
before the Magistrate does not, in itself, vitiate the trial unless prejudice is
demonstrated by the defence. Additionally, in the Section 164 of Cr.P.C.
statement of P.W.9, all accused/applicants were named, showing their
involvement at the time of the incident. Thus, the non-mentioning of names at
the time of the G.D. Entry cannot by itself be grounds to disbelieve the FIR or
the prosecution case without fully analyzing the evidence.
Page No.# 8/8
14. For the consideration of an application under Section 389 of Cr.P.C., the
Appellate Court is not expected to re-appreciate evidence or search for minor
lacunae in the prosecution case. It is a well-settled principle that such an
application is to be allowed only when there is palpable illegality or perversity in
the findings.
15. In light of the above discussion, we are of the considered view that there
is no merit in the application filed under Section 389 of Cr.P.C. seeking
suspension of sentence and grant of bail to the accused/applicants pending
disposal of the connected appeals. Accordingly, these interlocutory applications
stand rejected.
16. In terms of the above, these interlocutory applications are disposed of.
JUDGE JUDGE Comparing Assistant
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