Nurul Hoque @ Nural Hoque and 4 Ors. Vs the State of Assam and Anr.

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.

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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.

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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.

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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.

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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.

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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.

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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

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released on bail and will not misuse the liberty so granted.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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16. In terms of the above, these interlocutory applications are disposed of.

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JUDGE JUDGE

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Nurul Hoque @ Nural Hoque and 4 Ors. v. the State of Assam and Anr.

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Nurul Hoque @ Nural Hoque and 4 Ors. v. the State of Assam and Anr.

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