Gauhati High Court
Prasanta Bhuyan @ Sushil Bhuyan vs The State Of Assam And Anr on 6 August, 2020
Author: P.K.Deka
Bench: Suman Shyam, P.K.Deka
Page No.# 1/3
GAHC010178052019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.) 675/2019
1:PRASANTA BHUYAN @ SUSHIL BHUYAN
S/O- BHABA BHUYAN, R/O- CHOWKHAMTING GAON, P.O. SISSI
BORGAON, P.S. SILAPATHAR, DIST.- DHEMAJI, ASSAM, PIN- 787110.
VERSUS
1:THE STATE OF ASSAM AND ANR
REP. BY P.P., ASSAM.
2:AHMED ALI
S.I. DHEMAJI POLICE STATION
DIST.- DHEMAJI
ASSAM
Advocate for the Petitioner : MR. I CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
THE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
06.08.2020 (P.K.Deka,J) Heard Mr. I. Choudhury, the learned counsel for the applicant and Ms. S. Jahan, the Page No.# 2/3 learned Addl. P.P. Assam.
The applicant has filed this application under Section 389 of the Cr.P.C. for suspending the sentence passed against the applicant vide judgment and order dated 04.07.2019 by the learned Sessions Judge, Dhemaji in Sessions Case No. 127(DH)/2011 convicting the applicant under Section 10(a)(iv) of the Unlawful Activities (Prevention) Act, 1967 sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 5,000/- in default rigorous imprisonment for 2 months and also convicting him under Section 13(2) of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred as UA(P) Act) and sentenced him to undergo rigorous imprisonment for 4 years and fine of Rs. 5,000/- in default for another R.I. for 2 months.
Mr. Choudhury, submits that the only incriminating material against the applicant as held by the learned Session Judge, Dhemaji that the police seized his motor cycle vide Ext. 62 used by the applicant lending support to the fact that he was involved providing assistance to the ULFA members in commission of the bomb blast. It is further submitted that the applicant had almost completed 1 (one) year in jail if, the post trial detention is taking into consideration and as such there being no materials against him hence the learned counsel sought for suspending the operation of sentence against the applicant and release him on bail.
Ms. Jahan, the learned Addl. P.P. on the other hand, objected the said submission of the learned counsel for the applicant. She referred to the statement under Section 164 Cr.P.C. of Sri Jatin Dowari as observed by the learned court below that on 05.08.2004 while he was at home in the evening suddenly ULFA members including "Peasanna Bhuyan" along with others threatened him on gun point and took him out from his house and reached Dhemaji College Gate. They asked to show the college field (place of occurrence). Sri Jatin Dowari accordingly, shown the college field whereafter, he was send back to the Girls Hostel Tiniali. As per Ms. Jahan the applicant is named by the co-accused Sri Jatin Dowari in his statement under Section 164 Cr.P.C. and that itself is an incriminating material showing the direct and specific Page No.# 3/3 act of attribution towards assisting the unlawful association for furtherance of unlawful activities by the applicant and rightly convicted by the learned court below.
We have perused the judgment, the records and specifically the statement under Section 164 Cr.P.C. of Sri Jatin Dowari and other accused persons convicted under Section 302 IPC and other provisions of law. In order to decide this application under Section 389 Cr.P.C. at this stage entering into the merits of the finding of the court below is not the requirement but to examine the incriminating materials recorded against the convicted person vis-a-vis the materials on record. As per the record Jatin Dowari was a co-accused and if the statement under Section 164 Cr.P.C. is looked into which remained unrebutted during the trial, at this stage, we are not inclined to apply discretion in favour of the applicant after considering the materials on record in the light of provisions of UA(P) Act, 1967.
Accordingly, this application is dismissed.
JUDGE JUDGE. Comparing Assistant