Allowed

Sri Punya Mazumdar and Anr. v. the State of Assam and Anr.

Gauhati HC1 Oct 2018I.A.(Crl.)/561/2018

Case brief

AI extract

What is this about?

The Gauhati High Court considered an application under Section 389 CrPC for bail and sentence suspension. The plea of juvenility for one appellant was dismissed based on an enquiry report establishing his age exceeded 18 years. The Court granted bail pending appeal despite evidence discrepancies being reserved for the main appeal.

What did the court decide?

Each appellant released on bail of Rs. 25,000 with one surety of like amount to the satisfaction of the learned Sessions Judge.

Sri Punya Mazumdar and Anr. Vs the State of Assam and Anr. — Bail and Remand | Gauhati HC (2018)

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Page No.# 1/4

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GAHC010160882018

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

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Case No. : I.A.(Crl.) 561/2018

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1:SRI PUNYA MAZUMDAR AND ANR

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S/O BABUL MAZUMDAR VILLAGE UTTAR PUTHIMARI PS BOKO, 781132 DIST KAMRUP ASSAM

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2: GOVINDA MANDAL S/O BIREN MANDAL VILL KAHIBARI PS BOKO DIST KAMRUP ASSA

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VERSUS

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1:THE STATE OF ASSAM AND ANR TO BE REPRESENTED BY PP, ASSAM

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2:HANUMAHAN SEKHARU S/O LATE JARU SEKHARU VILL KAHIBARI PS BOKO DIST KAMRUP 78112

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Advocate for the Petitioner : MR. A AHMED

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Advocate for the Respondent : PP, ASSAM

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::BEFORE::

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THE HON’BLE CHIEF JUSTICE (ACTING) MR. A.K. GOSWAMI THE HON’BLE MR JUSTICE AJIT BORTHAKUR

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01.10.2018

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(A. Borthakur, J)

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Heard Mr. A. Ahmed, learned counsel for the appellants/ applicants. Also heard Mr. H. Sarmah, learned Additional Public Prosecutor, Assam.

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2. This is an application under Section 389 of the of the Code of Criminal Procedure, 1973, praying for suspension of sentence passed by the learned Sessions Judge, Kamrup, Amingaon in Sessions Case No. 163/2014 under Sections 302/34 of the Indian Penal Code and to release them on bail, during the pendency of their appeal being Crl. Appl. No. 229/2018, preferred against the impugned judgment and order, dated 08.05.2018, passed in the aforesaid Sessions Case, whereby each of the appellants/applicants is sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for 2 months.

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3. So far the appellant/applicant No. 2 namely, Govinda Mandal is concerned, the applicants have stated that his date of birth is 31.01.1994, as per his school certificate, dated 01.01.2004. According to them, he was a student of Kahibari L.P. School from where he passed Class-IV, on 31.12.2003 and to that effect, the Head Teacher of the said school issued a certificate, dated 01.01.2004. The alleged occurrence took place on 28.02.2007 and at that time, he was a juvenile, as his age was 13 years 28 days and therefore, he is entitled to get the benefit of juvenility.

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4. In view of the plea of juvenility of the appellant/applicant No. 2, by order, dated 31.07.2018, learned Sessions Judge, Kamrup, Amingaon, was directed to make an enquiry in terms of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2006 and Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007. Accordingly, learned Sessions Judge, Kamrup, Amingaon, after a due enquiry, submitted his report. The relevant portion of the enquiry report, dated 21.08.2018, enclosing therewith the detail order, dated 20.08.2018, passed in Misc.(Enquiry) Case No.01/2018, reads as hereinbelow, extracted-

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“Accordingly, the inquiry conducted as per Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, on the basis of a school certificate submitted by the petitioner is found not below 18 years on the date of occurrence. The School certificate

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submitted by the petitioner is found inconsistent with the record of the school wherefrom the said certificate was issued and according to the aforesaid record of the school of Kahibari Prathamic Bidalaya(presently known as Kahibari Anchalik M.E. School), the date of birth of the petitioner is 1.1.1989 and accordingly, the age of the petitioner Gobinda Mandal on the date of incident i.e. 28.02.2007 is 18 years 1 month 27 days.”

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5. On hearing the learned counsel for both sides on the enquiry report and consideration thereof, we are satisfied that the appellant/ applicant No. 2 named-above, was not a ‘juvenile’ or ‘child’ within the meaning of Section 2(K) of the Juvenile Justice (Care and Protection of Children) Act, 2006, and therefore, was not a ‘juvenile in conflict with law’, on the day of the alleged occurrence.

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6. Resultantly, the plea of juvenility of the applicant No. 2 stands dismissed.

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7. Mr. A. Ahmed, learned counsel appearing for the appellants /applicants submits that the circumstances relied upon by the prosecution do not point their guilt or connect them with the crime. Mr. Ahmed further submits that the learned trial Court relied on the evidence that on the day of occurrence at about 4 p.m., the appellants/applicants came to the house of Sonu Mohan Sakharu, the uncle of the deceased and called out the deceased Amrit Sakharu, whereas the F.I.R. disclosed that one Hanu Mohan Sakharu alleged that they called the deceased at about 8 p.m. from his house. It is also submitted by Mr. Ahmed that the evidence does not disclose the time of last seen together of the appellants/applicants with the deceased in the market and whether, thereafter, they proceeded anywhere. According to Mr. Ahmed, learned counsel for the appellants/applicants, the learned trial Court omitted to consider the vital contradictions on evidence and based on surmises and conjectures, convicted the applicants, for which, subject to the final outcome in the connected appeal, the appellants/applicants may be released on bail till then suspending the sentence.

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8. Controverting the above argument, Mr. H. Sarmah, learned Additional Public Prosecutor, submits that the contradictions highlighted by the appellants/applicants are insignificant and not going into the core of the case in view of the other incriminating circumstances proved by the prosecution in the case and further, that at the present stage of the connected appeal, the sentence may not be suspended and the appellants/applicants may not be released on bail.

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9. We have considered the above arguments advanced by the learned

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counsel of both sides and considered the materials available on the relevant record of the learned trial court.

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10. From scrutiny of the evidence of the prosecution witnesses, it appears that out of the 12 witnesses examined by the prosecution, P.Ws 7 and 8 were declared as hostile witnesses by the prosecution. The alleged occurrence took place during night hours and the deadbody of Amrit Sakharu was found lying on the village road side. The evidence of P.W. 11, the autopsy surgeon, reveals that the cause of death of the deceased was ligature strangulation and homicidal in nature. There are some discrepancies in the form of contradictions regarding the last seen together of the appellants and the deceased as well as the place wherefrom the appellants called the deceased away, subject, of course, to a detail scrutiny at the time of hearing of the connected appeal.

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11. Therefore, we feel that further detention of the appellants/ applicants is not required during the pendency of the appeal.

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12. Accordingly, we direct that each of the appellants/applicants shall be released on bail of Rs. 25,000/- with one surety of the like amount, each, to the satisfaction of the learned Sessions Judge, Kamrup, at Amingaon, till the connected appeals are disposed of.

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Interlocutory Application stands disposed of.

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JUDGE CHIEF JUSTICE(ACTING)

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Comparing Assistant

Sri Punya Mazumdar and Anr. v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Sri Punya Mazumdar and Anr. v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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