Gauhati High Court
Page No.# 1/4 vs The State Of Assam on 6 August, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/4
GAHC010084312021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1367/2021
MOJAHER HUSSAIN KHAN @ MOJAHER ALI AND 3 ORS.
S/O MOSHARRAF HUSSAIN, R/ JAHRUPAM, PS BARPETA, DIST. BARPETA,
ASSAM
2: AJAHAR ALI
S/O NURUL ISLAM
R/O VILL CHAPRA
PS BARPETA
DIST. BARPETA
ASSAM
3: ISMAIL HUSSAIN@ ISMAIL
R/O VILL CHAPRA
PS BARPETA
DIST. BARPETA
ASSAM
4: NURUL ISLAM
S/O LATE SAHAR UDDIN
R/O VILL CHAPRA
PS BARPETA
DIST. BARPETA
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM
Advocate for the Petitioner : MR A K AZAD
Advocate for the Respondent : PP, ASSAM
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 06-08-2021 The Court proceedings have been conducted through online court proceeding services.
2. Heard Mr. A.K. Azad, learned counsel for the petitioners and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.
3. By this application under Section 438, Code of Criminal Procedure, 1973 (CrPC), the petitioners viz. 1) Mojaher Hussain Khan @ Mojaher Ali, 2) Ajahar Ali, 3) Ismail Hussain @ Ismail and 4) Nurul Islam have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with Barpeta Police Station Case No. 960/2021 registered for offences punishable under Sections 147/148/447/326/302, Indian Penal Code.
4. The First Information Report (FIR) was lodged on 22.04.2021 by one Fazar Ali. In the FIR, 11 persons have been named by the informant as accused with the petitioner no. 1 as accused no. 5; petitioner no. 2 as the accused no. 3; petitioner no. 3 as accused no. 4 and the petitioner no. 4 as the accused no. 8.
5. The allegations in the FIR are, inter-alia, to the effect that at around 09-30 a.m. on 22.04.2021, the accused persons coming together as a group to the house of the informant had assaulted the informant's father, Nazrul Islam and the informant's mother, Hasina Begum. As a result of the attack made by various sharp weapons, both the informant's father and mother sustained grievous injuries. The father of the informant, Nazrul Islam was taken to the Page No.# 3/4 medical hospital at Barpeta where he was declared dead. The Post-Mortem Examination Report of the deceased, Nazrul Islam indicates that he sustained about 19 nos. of injuries, 16 of them were serious. As per the Post-Mortem Examination Report, the cause of death was due to shock and hemorrhage as a result of the injuries sustained over the body as described, therein. All the injuries were opined to be caused by moderately sharp cutting pointed weapon and were homicidal in nature except injury nos. 9, 12 and 13 which were caused by blunt force impact. As per the injury report of the informant's mother, the injuries sustained by Hasina Begum were grievous caused by blunt weapon. The injured, Hasina Begum, in her statement has implicated accused no. 1, accused no. 2, accused no. 3 (petitioner no. 2), accused no. 7 and accused no. 10 for the attack made on the deceased and on her. Similarly, all the eye witnesses whose statements are available in the case diary, have implicated these same accused persons for the assault made on the deceased and the injured. The witnesses whose statements have been recorded so far, as are available in the case diary, have not implicated the petitioner no. 1, petitioner no. 3 and the petitioner no. 4 the assault resulting in the injuries on the deceased and the injured.
6. Upon consideration of the fact that the eye witnesses including the injured i.e. the mother of the informant have not implicated the petitioner no. 1, the petitioner no. 3 and the petitioner no. 4 in the assault made on the deceased and the injured, I am of the considered view that the petitioner no. 1, petitioner no. 3 and petitioner no. 4 have made out a prima facie case for grant of the benefit of pre-arrest bail under Section 438, CrPC.
7. While rejecting the prayer for pre-arrest bail in respect of the petitioner no. 2, it is provided, that in the event of arrest of the petitioner nos. 1, 3 and 4 in Page No.# 4/4 connection with Barpeta Police Station Case No. 960/2021, they shall be released on bail on furnishing a bail bond of Rs. 20,000/- each with one local surety each of the like amount to the satisfaction of the arresting authority, subject to the conditions that :
1. The petitioner nos. 1, 3 and 4 shall appear before the Investigating Officer of the case within a period of 10 (ten) days from today and shall cooperate with the investigation of the case;
2. The petitioner nos. 1, 3 and 4 shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and
3. The petitioner nos. 1, 3 and 4 shall not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the police.
The bail application stands disposed of in the aforesaid terms.
JUDGE Comparing Assistant