Majid Ali @ Majid Ali Vs the State of 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

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ORDER

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Date : 12.06.2025 [Mitali Thakuria, J.]

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 personsAsmat 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.

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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.

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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.

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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.

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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.

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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.

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16. In terms of above, these interlocutory applications stand disposed of.

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JUDGE JUDGE

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Majid Ali @ Majid Ali v. the State of Assam

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Majid Ali @ Majid Ali v. the State of Assam

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