Gauhati High Court
Johirul Islam vs The State Of Assam on 25 August, 2021
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/8
GAHC010097562021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1786/2021
JOHIRUL ISLAM
S/O. BABU SK, VILL. DEBOTTAR HASDOHA PART-IV, P.O. KISMAT
HASDOHA, P.S. AND DIST. DHUBRI, ASSAM, PIN-783301.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 25.08.2021 Heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by Mr. R. Islam, learned Advocate appears for the petitioner. Also heard Mr. B. B. Gogoi, learned Additional Public Prosecutor appearing for the State of Assam.
2. This Anticipatory bail petition has been filed by the Page No.# 2/8 petitioner namely, Johirul Islam apprehending his arrest in connection with Dhubri Police Station case No. 446/2016 under Sections 120(B)/342/376/325/379 of IPC.
3. The aforesaid case was registered on behalf of an FIR dated 04.05.2016 lodged by the informant namely, Hasen Ali.
4. The allegations in the FIR are that on the date of occurrence i.e. on 03.05.2016 at about 10.00 a.m, the daughter of the informant, Asma Begum, while on her way to the house of her brother-in-law, Aminur Rahman, one Aseda Bibi with prior motive and conspiring with the other accused persons named in the FIR including the petitioner, Jahirul Islam, took her to the house of the petitioner, Jahirul Islam. It is alleged that the accused/petitioner, Jahirul Islam forcibly confined the daughter of the informant and committed rape upon her against her will. The daughter of the informant raised alarm and upon hearing the commotion, the elder daughter of the informant, Hasimon Bibi and her relatives arrived at the place of occurrence and had seen the accused/petitioner committing the illicit act by confining her in a room. The accused/petitioner, thereafter, fled away from the place of occurrence. When the matter was reported to the parents of the accused/petitioner, Jahirul Islam, they forcefully pulled the daughter of the informant and inflicted injuries on her head, forehead, finger of her right hand and caused grievous injuries to the various parts of the body by hand, Page No.# 3/8 stick, stone and they also took away her ornaments namely, one gold necklace, one pair of ear ring, gold nose pin, anklet (payel) etc. It is alleged that the accused no.8 named in the FIR namely, Mofida Bibi had also inflicted blow on the head of the victim, Asma Begum by rod causing grievous injuries and had fled away from the place of occurrence. It is alleged in the FIR that a meeting with regard to the alleged incident was scheduled in the house of the informant, however, the accused persons were not present in the meeting and as such there was a delay in lodging the FIR. The informant alleged that the daughter of the informant, Asma Begum was undergoing medical treatment in Dhubri Civil Hospital in a critical condition.
5. The learned Senior counsel for the petitioner submits that the allegations made in the FIR are totally false and without any basis. The learned counsel for the petitioner submits that the whole episodes as narrated in the FIR is concocted and are figments of imagination of the informant. The actual story is that there is a discord between the families of the informant and the petitioner which arose out of land disputes between the two families. The learned counsel for the petitioner further submits that an FIR in respect of the dispute had already been lodged by the petitioner and his family against the informant and other family members which was registered as Dhubri Police Station case No. 442/2016 under Sections 447/148/325/354/34 of Indian penal Code. The Page No.# 4/8 learned Senior counsel for the petitioner submits that the FIR in the present case is a counter blast to the FIR lodged by the petitioner and his family members. It is submitted by the learned counsel for the petitioner that the disputes between the two families namely the family of the informant and that of the petitioner have in the meantime been mutually settled and pursuant to lodging of the FIR the police did not require the presence of the petitioner for all these years. However, in April, 2021 the police visited the house of the petitioner and enquired about his whereabouts. Consequently the present Anticipatory Bail petition is preferred. The learned Senior counsel, therefore, submits that there being no iota of truth in the allegations made, the prayer for Anticipatory Bail by the petitioner ought to be granted and the petitioner be allowed to remain on Anticipatory Bail as prayed for.
6. This Court while granting interim bail vide order dated 30.06.2021 called for the Case Diary. Subsequently, vide order dated 02.08.2021, this Court also called for the Case Diary in connection with Dhurbi Police Station Case No. 442/2016 under Sections 447/148/325/354/34 of Indian penal Code
7. The learned Additional Public Prosecutor has submitted that the case dairy in respect of Dhurbi Police Station case no. 446/2016 under Sections 447/148/325/ 354/34 of Indian penal Code which is relevant to the present proceedings is available. However, in so far as Dhubri Police Station case No. 442/2016 is concerned, the learned Additional Public Prosecutor submits Page No.# 5/8 that as per the instructions received from the Investigating Officer, the charge-sheet in the matter has been submitted vide charge-sheet no. 321/2017 dated 18.07.2017.
8. Since the Case diary in respect of Dhubri Police Station case No. 446/2016 as called for is available, it is agreed at the Bar that the matter can be taken up for disposal.
9. The learned counsels for the parties have been heard and the case dairy presented has been duly perused. From the case dairy presented the statements of the victim girl under Section 164 Cr. P.C is seen. In her statement recorded under Section 164 Cr. P.C, Asma Begum, daughter of the informant, Hasen Ali stated that on the date of the occurrence i.e. on 03.05.20216 at about 10.00 a.m she was going towards to the house of her sister, Habilur Bibi for spreading out the paddy. While on her way she met Aseda who took her to her house. She went with Aseda to her (Aseda's) house. Aseda made her sit in her house and went away. Then Jahirul (the petitioner herein) gagged her and pulled her to his room and committed rape upon her. On raising hue and cry the parents of the petitioner/accused came and the petitioner absconded. When the matter was informed to the parents and family members of the petitioner, they assaulted her. It is stated that Aseda even bit on her right hand and forehead. Her ornaments namely, golden necklace, nose ring, bangle's anklet were forcibly taken away.
10. Pursuant to the alleged incident and lodging of the FIR Page No.# 6/8 the daughter of the informant was taken for medical examination. In the medical examination report issued by one Dr. Rabindra Sarma, S.D.M & HO, Dhubri Civil Hospital, Dhubri issued on 30.05.2018, where he opined that the injuries were simple in nature and caused by blunt objects.
11. In so far as the Injury Report available in the Case Diary, it is seen that one Dr. Sk. Md. Asharuddin, Medical and Health Officer-I, Civil Hospital, Dhubri opined that there is no external injury detected at the time of examination and that this report is prepared as per hospital records. The examination was shown to have been done on 03.05.2016 at 11.45 a.m. In so far as the medical examination report for sexual assault is concerned the findings of the medical Officer namely, Dr. (Mrs.) Muskura Ahmed, Sr. M. & H.O, Civil Hospital, Dhurbi are that "not consistent with recent sexual intercourse/assault." This medical examination was conducted on 07.05.2016.
12. The learned counsels for the parties have been heard and the Case Diary in respect of the progress of the investigation has been perused. It is seen that the incident is alleged to have been occurred on 03.05.2016 and the FIR was lodged on 04.05.2016. The medical examination for sexual assault appears to have been conducted within a reasonable period of time i.e on 07.05.2016. The specific allegation made in the FIR against the petitioner is that he committed rape on the informant's daughter. Such allegation is belied by the report of the medical examination conducted to determine Page No.# 7/8 sexual assault. As discussed above, the date of occurrence was on 03.05.2016 and till date it is seen that although the investigation has progressed substantially, the police has not filed the charge-sheet so far.
13. No incriminating materials have been found against the petitioner. The medical report available in the case Diary also does not indicate any injuries or evidence of rape and physical assault alleged to have been committed by the petitioner and his family members on the informant's daughter. Accordingly, in view of all the above discussion, this Court is of the view that grant of Anticipatory Bail to the petitioner will not hamper the investigation carried on by the police in view of the progress made as seen from the case dairy presented. There is also no material in the case dairy to suggest that the grant of Anticipatory Bail as prayed for by the petitioner will hamper the investigations carried on in any manner. Accordingly, the Anticipatory Bail petition is allowed. Interim bail granted earlier vide order dated 30.06.2021 is hereby made absolute on the following conditions :-
i) That the petitioner shall continue to appear before the Investigating Officer once every month till the investigations are completed;
ii) That the petitioner shall not change their residence or move out of the jurisdiction of the Dhubri Police Station without written information to Page No.# 8/8 the Investigating Officer;
iii) That the petitioner shall appear before the Investigating Officer within 10 days;
iv) That the petitioner shall not hamper or tamper with the investigation in any manner; and
v) That the petitioner 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/her from disclosing such facts to the Court or to any police officer.
14. It is made clear that in the event of violation of the above conditions by the petitioners, the Investigating Officer will be at liberty to seek cancellation of the bail as per law.
15. Accordingly, the pre-arrest bail application stands allowed and disposed of.
16. Return the Case Diary.
JUDGE Comparing Assistant