The Gauhati High Court heard an application for stay of life sentence and bail pending appeal in a murder case, dismissing the prayer without deciding the merits of the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010056642017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.) 830/2017
1:GOBINDA SAHA and 3 ORS
S/O GAUR CH. SAHA, R/O BIJNI TOWN, WARD NO. 2, PS-BIJNI, DIST. CHIRANG BTAD, ASSAM
2: SRI GOPAL SAHA S/O GANESH SAHA R/O BIJNI TOWN WARD NO.2 PS- BIJNI DIST. CHIRANG BTAD ASSAM 3: SRI RAJ KUMAR SAHA S/O LATE RAJENDRA CH. SAHA R/O BIJNI TOWN WARD NO. 2 PS- BIJNI DIST. CHRIANG BTAD ASSAM 4: SRI GANESH SAHA S/O LATE HRIDOY SAHA R/O BIJNI TOWN WARD NO.2 PS-BIJNI DIST. CHIRANG BTAD ASSA VERSUS
1:THE STATE OF ASSAM and ANR.
2:SMTI. BASANTI SAHA
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W/O LATE BINOY SAHA R/O BIJNI DIST. CHIRANG BTAD ASSA
Advocate for the Petitioner : MR.R ALI
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A. 437/2017
1:SRI GOBINDA SAHA and 3 ORS S/O GAUR CH. SAHA R/O BIJNI TOWN WARD NO.2 PS-BIJNI DIST. CHIRANG BTAD ASSAM 2: SRI GOPAL SAHA S/O GANESH SAHA R/O BIJNI TOWN WARD NO.2 PS- BIJNI DIST. CHIRANG BTAD ASSAM 3: SRI RAJ KUMAR SAHA S/O LATE RAJENDRA CH. SAHA R/O BIJNI TOWN WARD NO. 2 PS- BIJNI DIST. CHRIANG BTAD ASSAM 4: SRI GANESH SAHA S/O LATE HRIDOY SAHA R/O BIJNI TOWN WARD NO.2 PS-BIJNI DIST. CHIRANG BTAD ASSAM VERSUS
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1:THE STATE OF ASSAM and ANR GHC
2:SMTI. BASANTI SAHA W/O LATE BINOY SAHA R/O BIJNI DIST. CHIRANG BTAD ASSAM
Advocate for the Petitioner : MR.N MAHAJAN Advocate for the Respondent : H SARMA
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 05-04-2018
Heard Mr. B. K. Mahajan, learned counsel for the applicants/appellant and Ms. B. Bhuyan, leaned Addl. Public Prosecutor, Assam.
This is a petition under Section 389(3) of the Code of Criminal Procedure 1973 (Cr.P.C) filed by the accused applicants/appellant, namely, Sri Gobinda Saha, Sri Gopal Saha, Sri Raj Kumar Saha and Sri Ganesh Saha praying for stay of operation of conviction and sentence, passed by the learned Sessions Judge, Chirang in Sessions Case No. 97 (B)/2015, against them under Section 341/302 of the Indian Penal Code(IPC).
Be it stated that by the impugned Judgment and order, dated 08.11.2017, passed in Session Case No. 97(B)/2015, the learned Sessions Judge, Chirang has convicted and sentenced each of the accused applicants/appellant to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/-, in default to suffer simple imprisonment for 1 year under Section 302 IPC and further, to suffer rigorous imprisonment for 15 days under Section 341 IPC.
Mr. B. K. Mahajan, learned counsel for the accused applicants/appellant, submits that the learned Sessions Judge without appreciating the evidence from proper perspective and based on conjectures and surmises has convicted the petitioners. Mr. Mahajan submits that the learned Court below ignored the vital contradictions between the allegations made in the F.I.R. by P.W-1, the informant and in her evidence.
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According to Mr. Mahajan, P.W-1, the informant did not state about any accused carrying iron rod or dao as deposed in her evidence. Mr. Mahajan further submits that the learned trial Court did not consider that in one breath, P.W-I stated that her son Bimal Saha was present with her, when she came to the place of occurrence, after hearing the scream of her husband, but in cross-examination, she in the same breath stated that after about half an hour of her arrival at the place of occurrence, her son arrived and also failed to appreciate that the prosecution side did not exhibit the extract of the relevant GD Entry, although P.W.1 categorically stated in her evidence that she verbally reported the occurrence in the relevant night of the occurrence creating doubt about the involvement of the applicants. According to Mr. Mahajan, the evidence of P.W.2 also creates doubt about the prosecution story of the case as he stated that in the G.D.Entry, there was no mention of the names of the applicants, although their names found place in the written F.I.R., lodged thereafter. Mr. Mahajan further submits that the evidence of P.W.s No. 4, 5, 6, 7, 8 and 9, who are independent witnesses and residents near to the place of occurrence did not speak about the occurrence, rather they deposed that the deceased, who was a habitual drunkard, used to create nuisance in the locality, indicating thereby possibility of other persons involvement in his killing and as such, the accused applicants may be released on bail till disposal of the related appeal.
Controverting the above argument of the learned counsel for the accused applicants, Ms. B. Bhuyan, learned Addl. Public Prosecutor, submits that P.W-I, the wife of the deceased, who was the eyewitness to the occurrence, deposed to have seen the accused applicants assaulting her husband with iron rod, dao, bamboo sticks etc., when she rushed to the place of occurrence hearing screaming of her husband. Ms. Bhuyan submits that her (P.W-1) son P.W.-2 corroborated her (P.W-1) evidence and their evidence is supported by the evidence of the autopsy surgeon’s findings vide Ext. 4, the post-mortem report. Ms. Bhuyan, learned Addl. Public Prosecutor, draws our attention to the statement of P.W-1, recorded under Section 164 Cr.P.C and submits that her (P.W-1) evidence corroborates the facts she had stated therein, and further, that in Bijni P.S. G.D. Entry No. 608, dated 20.03.2011, recorded at 11.30 p.m., the name of the accused applicants were mentioned as assailants of the deceased. Therefore, Ms. Bhuyan submits that there is abundance of incriminating evidence against the accused applicants and as such, the sentence may not be suspended and they may not be released on bail.
We have given due consideration to the rival contentions made by the learned counsel for the parties and appreciated the relevant evidence available on LCR.
On an objective appreciation of the above arguments of the learned counsel for both the sides and the reasons recorded in the impugned judgment and order, we are of the opinion that having regard to the nature and gravity of accusation and the grounds for conviction recorded by the learned Sessions Judge against the applicants and the manner in which the offences were committed, it is not desirable to
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suspend the sentence until the appeal is disposed of and further, in the meantime to release them on bail.
For the reasons, set forth above, the application stands dismissed.
We, however, make it clear that we have not expressed any opinion on the merit of the related
appeal.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether to grant stay of conviction and sentence pending appeal under Section 389(3) CrPC.
Whether to release accused on bail during pendency of appeal.
Colour shows how this judgement treated each authority
Sessions Judge, ChirangReferred¶25
Session Case No. 97(B)/2015
3 provisions across 2 enactments
Gobinda Saha and 3 Ors.
State of Assam and Anr.
Ujjal Bhuyan
Ajit Borthakur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
