Gauhati High Court
Khandakar Safiur Rahman vs The State Of Assam And Anr on 29 November, 2022
Author: Suman Shyam
Bench: Suman Shyam, Parthivjyoti Saikia
Page No.# 1/4
GAHC010156992022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/442/2022
KHANDAKAR SAFIUR RAHMAN
S/O- AKHER ALI KHANDAKAR, VILL. NO. 1 BHANDARA, P.S. MANIKPUR,
DIST. BONGAIGAON, ASSAM, PIN- 783390.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:SAMSUL ALI
S/O- LATE KASHEM ALI
R/O- VILL.- KASDOHA
P.S. BIJNI
DIST. CHIRANG
ASSAM
PIN- 783390
Advocate for the Petitioner : MR. M U MAHMUD
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
29.11.2022 (Suman Shyam, J) Heard Mr. M. U. Mahmud, learned counsel appearing for the Page No.# 2/4 applicant. Also heard Ms. S. Jahan, learned Addl. P.P., Assam representing the State.
The applicant herein Khandakar Saifur Rahman (A-1) along with another accused person Mustt. Lal Bhanu(A-2) were convicted under Sections 302/120B of the IPC by the judgment dated 07.07.2022 passed by the learned Additional Sessions Judge, Bijni, Chirang in connection with Sessions Case No.16(B)/2021 for committing the murder of deceased Eyad Ali and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.20,000/- with default stipulation.
The prosecution case, in a nutshell, is that the applicant (A-1) had conspired with accused Lal Bhanu (A-2), who is the wife of the deceased, to kill her husband by engaging contract killers. In furtherance of such conspiracy, the husband of A-2 was killed in an incident which took place late in the evening of 07.07.2021. The prosecution case is entirely based on circumstantial evidence. A perusal of the impugned judgment indicates that the learned trial court had heavily relied upon the Call Details Report (CDR) of both the accused persons and the contract killers around the time of the incident to come to the conclusion that the incident was the outcome of criminal conspiracy. According to the prosecution, the applicant Khandakar Saifur Rahman was maintaining an illicit relationship with Lal Bhanu (A-2) and in order to continue with their illicit affair, the deceased was eliminated by hiring contract killer. It appears that one of the contract killers was killed in an Page No.# 3/4 encounter with the police and the other is absconding.
Mr. Mahmud has referred to the evidence on record to submit that the prosecution has failed to produce the voice sample or the details of conversation between the accused, which was available with the operator, to establish the conspiracy theory. According to Mr. Mahmud, there is no evidence to establish the illicit relationship between his client and the co-accused. Moreover, the ownership of the SIM Cards relied upon by the prosecution also could not be established by leading cogent evidence. According to the applicant's counsel, the prosecution has failed to establish the charge brought against the accused/applicant beyond reasonable doubt and hence, there is a strong possibility that the applicant might be acquitted by the appellate court. On such count a prayer has been made for releasing the applicant on bail pending disposal of the appeal.
Ms. S. Jahan, learned Addl. P.P., Assam, on the other hand, submits that the learned trial court had relied upon the materials available on record which includes the CDR as well as the broken SIM Card and the weapons which were recovered by the police. However, whether such material would be sufficient to sustain the conviction of the applicant is a matter that can be gone into during the final hearing of the appeal.
After hearing the submissions of the learned counsel for both the sides and on perusal of the materials available on record, we find that this is a case entirely based on circumstantial evidence and the Page No.# 4/4 conspiracy theory has been sought to be established by the prosecution merely by relying upon the CDR. Whether the CDR has been proved by adducing cogent evidence and if so, what impact the failure on the part of the prosecution to produce the conversation and the voice sample, if any, of the accused persons, would have in this case, are matters that would have to be looked into minutely during the hearing of the appeal. However, having regard to the peculiar facts and circumstances of the case, we are of the opinion that the applicant has made out a good case for allowing the bail prayer made in the I.A. pending disposal of the appeal.
We, accordingly, direct that the applicant Khandakar Saifur Rahman be released on bail on furnishing a bond of Rs.50,000/- (Rupees Fifty Thousand) and two local sureties of the like amount to the satisfaction of the learned trail court with a further conditions that he would not leave the jurisdiction of the learned Addl. Sessions Judge, Bijni, Chirang without prior permission and shall also record his attendance before the learned trial court once in every month.
With the above observation, this I.A. stands disposed of.
JUDGE JUDGE Comparing Assistant