Kishor Pathak @ Kamal Pathak Vs the State of Assam and Anr.

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GAHC010145632024

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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.)/694/2024

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KISHOR PATHAK @ KAMAL PATHAK S/O LATE HARGOBIND PATHAK VILL.- BHAKATPARA (DALONGPAR) P.S.- TAMULPUR DIST.- BAKSA. VERSUS

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THE STATE OF ASSAM AND ANR. REP. BY P.P. ASSAM.

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-----------Advocate for : MR P DAS 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 YARENJUNGLA LONGKUMER

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ORDER

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Date : 19.05.2025 [M. Choudhury, J]

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Heard Mr. P. Das, learned counsel for the applicant-appellant and Ms. A. Begum, learned Additional Public Prosecutor for the opposite party no. 1, State of Assam.

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The instant application under Section 389 of the Code of Criminal Procedure, 1973 is preferred by the applicant-appellant seeking suspension of execution of the sentence passed against the applicant-appellant and for his release on bail.

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The applicant as the appellant has preferred the accompanying appeal, Criminal Appeal no. 235/2024 to assail a Judgment and Order dated 22.05.2024 passed against him by the Court of learned Sessions Judge, Baksa at Mushalpur in Sessions Case no. 53/2019. By the said Judgment and Order dated 22.05.2024, the learned trial court has convicted the applicant-appellant for the offence under Section 302, Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- [Rupees Two Thousand], in default of payment of fine, to undergo simple imprisonment for another 6 [six] months.

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Mr. Das, learned counsel for the applicant-appellant has submitted that the learned trial court has returned the finding of guilt after an erroneous appreciation of the testimony of the prosecution witnesses – P.W.1, P.W.3, P.W.4, P.W.6, P.W.7 & P.W.8. He has submitted that none of these witnesses saw the incident regarding sustaining of burn injuries by the deceased. There is no evidence as regards the person who had allegedly set fire on the deceased. As per the testimony of P.W.3 & P.W.4, it was the accused who had assisted the deceased to come out of the pond.

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On the other hand, Ms. Begum, learned Additional Public Prosecutor

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appearing for the opposite party no. 1 has submitted that the deceased had sustained extensive burn injuries on her person. It has been established from the evidence on record that the applicant-appellant was present in the house of the deceased prior to the occurrence and at the time of occurrence. She has submitted that P.W.3 or the other witnesses on whose testimony the trial court had placed reliance, cannot be placed in the category of interested witnesses, as contended by the learned counsel for the applicant-appellant. P.W.3 being a neighbour of the deceased and the informant, had seen the applicant-appellant at the place of occurrence. The testimony of the other prosecution witnesses had corroborated the factum of sustaining burn injuries by the deceased and the presence of the accused-appellant at the place of occurrence at the relevant point of time.

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We have considered the submissions of the learned counsel for the parties and have also gone through the materials on record available in the case records of Sessions Case no. 53/2019 including the testimonies of the prosecution witnesses and the autopsy report, in original.

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The alleged incident had occurred on 13.05.2014. The First Information Report was lodged on 24.05.2014. The deceased expired on 21.05.2014. As per the opinion of the Autopsy Doctor recorded in the Post-Mortem Examination Report, the death of the deceased was due to septicemia following burn injuries which covered 75% to 80% of the total body surface area. From the testimony of the prosecution witnesses, it has emerged that it was in the house of the deceased, the deceased had sustained the burn injuries on 13.05.2014. As per the testimony of P.W.3, the incident occurred in the morning hours of

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13.05.2014. The other prosecution witnesses had also testified that the occurrence took place in the morning hours of 13.05.2014. The deceased was heard screaming for help on sustaining burn injuries on her person. Having caught fire, the deceased after coming out from her house, jumped into the pond which was in the house premises of the deceased. As per the testimony of P.W.3, the applicant-appellant was found to be present in the house of the deceased at that point of time. P.W.4 had deposed to the effect that when asked, the deceased told her that it was the applicant-appellant who set her on fire. P.W.3 had also deposed to the effect that when asked immediately after the victim was pulled out of the pond, in burnt condition, the victim told her that it was the applicant-appellant who had set her on fire. The prosecution had sought to place a motive by making efforts to bring evidence regarding a dispute about a tempo.

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The learned counsel for the applicant-appellant has submitted that the testimony of the prosecution witnesses was also to the effect that the applicantappellant had also assisted in pulling the victim out of the pond. The conduct of the applicant-appellant of leaving the place of occurrence immediately after the occurrence, as emerged from the evidence on record, is a factor which cannot be ignored. The learned counsel for the applicant-appellant has further contended that there are clear omissions on material points in the prosecution witnesses in their previous statements are fortified by the testimony of the I.O. Where there is any contradiction in the testimony of the prosecution witnesses qua their previous statements recorded under Section 161, CrPC is a matter which is to be appreciated and decided at the time of hearing, as prima facie, the previous statements of the witnesses were put to the witnesses by the

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deference specifically.

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We have also perused the replies given by the applicant-appellant during his examination under Section 313, CrPC to find out as to whether he had provided any explanation. On perusal, we find that there was no proper explanation as regards his presence at the place of occurrence at the time of sustaining burn injuries by the deceased at her own house.

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It is settled proposition that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302, IPC, the Court is to consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been committed, after he has been convicted for committing serious offence of murder, etc.

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Having considered all the factors which are relevant for the purpose of considering the application for suspension of execution of sentence, we do not find any prima facie case to pursue ourselves to allow the instant application. In such view of the matter, the prayer made in this application, being bereft of merit, is rejected, at this stage.

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JUDGE JUDGE

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Comparing Assistant

Kishor Pathak @ Kamal Pathak v. the State of Assam and Anr.

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Kishor Pathak @ Kamal Pathak v. the State of Assam and Anr.

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