Gauhati High Court
Page No.# 1/8 vs The State Of Assam And Anr on 22 August, 2025
Page No.# 1/8
GAHC010092322025
2025:GAU-AS:11238
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1433/2025
KRISHNA KAMAL BARUAH
S/O BANESWAR BARUAH
R/OMEKANAR CHUBURI
P.O. BIHAGURI
P.S. TEZPUR
DIST. SONITPUR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP BY THE PP, ASSAM
2:RAJU TURI
S/O LT. RAMA TURI
R/O RAJAPATHAR GAON
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM
PIN-78411
Advocate for the Petitioner : MR J PAYENG, MS A PAYENG,MR P KATAKI
Advocate for the Respondent : PP, ASSAM, MR. A PHUKAN, (AMICUS CURIAE, R-2),MR J A
HASSAN, SPECIAL P.P., ASSAM
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BEFORE
HON'BLE MRS. JUSTICE MITALI THAKURIA
ORDER
22-08-2025 Heard Mr. P. Kataki, learned counsel for the petitioner and Mr. J. A. Hassan, learned Special Public Prosecutor for the respondent No.1. Also heard Mr. A. Phukan, learned Amicus Curiae for the respondent No.2.
2. This is an application under Section 439 CrPC praying for grant of bail to the accused/petitioner, namely, Sri Krishna Kamal Baruah, who has been arrested on 30.06.2022 in connection with Dhula P.S. Case No. 114/2022 (Special POCSO Case No. 131/2022) pending before the Court of learned Special Judge, Darrang at Mangaldoi under Sections 354/354(A)/302/201/511, read with Section 376 IPC, read with Section 9(P)/10 of the POCSO Act.
3. The case records has been received and I have perused the same.
4. It is submitted by Mr. Kataki, learned counsel that the petitioner is innocent and he has not committed any such offence as alleged in the FIR. The day after the registration of the FIR on 12.06.2022, the petitioner himself surrendered before the police station and accordingly, he was arrested in connection with this case on 30.06.2022. The Police amalgamated Dhula P.S. U.D. Case No. 10/2022 along with Dhula P.S. Case No. 114/2022 as per order dated 29.06.2022, passed by the learned Sessions Judge, Darrang, Mangaldoi. After investigation, the charge sheet in the case was submitted on 25.09.2022 vide Charge Sheet No. 146 under Sections 354/354(A)/302/201/511, read with Section 376 IPC and Sections 9(P)/10 of the POCSO Act against the accused petitioner.
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5. During investigation post mortem was conducted in Mangaldoi Civil Hospital on 11.06.2022 wherein it was observed that no external injury is seen except ligature mark. As per the report, the ligature mark was non continuous. However, the cause of death was kept pending till receipt of the FSL report. Thereafter due to political intervention, the special investigation team, i.e., the CID took up the matter for investigation on 12.08.2022 and during investigation, the scene was recreated and the dead body of the deceased was exhumed after 74 days from the first post mortem report and the second post mortem examination was conducted at GMCH on 25.08.2022. But the second post mortem was based on the first post mortem report, wherein a ligature mark was described in the first autopsy report which could not be elicited during the second autopsy due to advanced state of decomposition. Thus, the second post mortem report which was conducted after 74 days after the death of the deceased victim cannot be conclusive evidence in any manner. Further, the Doctor of second post mortem report though relied on the first autopsy report, it stated that the cause of death was due to compression of neck during life. It is also been stated that the deceased was subjected to physical assault before her death, which was not observed during the first post mortem report. Thus, the entire prosecution case is based on the second autopsy report and only on the circumstantial evidence, as there is no eye witness to the prosecution case. The accused is in custody for more than 3 (three) years without any involvement in the alleged offence.
6. Mr. Kataki, learned counsel further submitted that the DNA profiling was also done, wherein the DNA of the accused was found in the panty of the deceased, but there was no any evidence of sexual intercourse with the deceased. He further, submitted that till date 23 numbers of witnesses have Page No.# 4/8 been examined by the prosecution out of 74 numbers of witnesses, including the vital witnesses of the prosecution and some of the official witnesses are only left to be examined and thus, there is no question of hampering or tampering with the evidence of the PWs at this stage. More so, inspite of receipt of notice, the informant of this case did not appear before the learned Trial Court to adduce evidence.
7. He further submitted that earlier bail application of the petitioner was rejected vide order dated 19.06.2024 in BA No. 816/2024 and since the date of rejection order, the Court had examined several vital witnesses and hence, considering all the aspects of the case including the length of detention already undergone by the petitioner, his bail prayer may be considered. The accused being the permanent resident of the locality, there is no chance of absconding, hampering or tampering with the prosecution witnesses. He will regularly appear before the learned Trial Court and will contest the case, if he is granted with the privilege of bail.
8. Mr. Kataki, learned counsel further submitted that no proper ground of arrest was communicated to the present petitioner, which may be one of the ground for consideration of bail application of the petitioner, which violates Article 22(1) of the Constitution of India.
9. Mr. Hassan, learned Special PP submitted in this regard that the earlier bail application of the petitioner was rejected considering all these aspects of the case including the subsequent autopsy report and DNA profile etc., while passing the rejection order. There is no new ground for considering the present bail application of the petitioner, which was earlier rejected considering all these aspects.
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10. He further submitted that the informant could not appear before the learned Trial Court below to adduce evidence as he was suffering from Tuberculosis, but at present he has recovered and he is ready to appear before the learned Trial Court on receipt of summon. Further, he submitted that there are colleagues of the petitioner, who are yet to be examined by the prosecution and there is every possibility of hampering with the evidences of those colleagues or witnesses, who are from the same department.
11. Mr. Hassan further submitted that as per the instruction received by him, the wife of the accused also offered bribe to one of the police officer during investigation, which also may be a circumstance to reject the bail application of the present petitioner, as the probability of hampering the evidence of the colleagues of the accused cannot be denied at this stage.
12. There is every chance of conviction of the accused petitioner, after the DNA profiling of blood samples also match with the blood samples of the victim as well as the DNA found in the torn panty of the deceased. Accordingly, Mr. Hassan raised vehement objection and submitted that till the completion of the non formal witnesses, specially, the witnesses from the same department, the present bail prayer of the petitioner may not be considered.
13. Mr. Hassan also submitted a list of witnesses and specially he submitted that till completion of examination of 5 (five) number of witnesses, i.e., the father of the victim, one Sudipta Saha, land owner, one Sarmistha Das Saha, Amal Das, Manalisha Roy and Pulakesh Roy, who worked together with the accused petitioner at the relevant point of time, the petitioner may not be granted with the privilege of bail.
14. Mr. Phukan, learned Amicus Curiae appearing on behalf of the informant Page No.# 6/8 submitted that from the contents of the charge sheet and other materials, it prima facie reveals that the first autopsy was not done properly, for which the second post mortem had to be done by exhuming the dead body of the deceased after 74 days of the first autopsy. He further submitted that there is no new ground as prayed for in the present application, which is subsequent to the earlier bail application, which was rejected on perusal of the case record and considering all the material aspects.
15. Mr. Phukan further submitted that the present petitioner himself surrendered before the police station, after coming to know about the filing of the case against him and thus, he was well aware about the ground of his arrest and thus, he cannot take the ground of non communication of the grounds of arrest to him, nor it violates the Article 22(1) of the Constitution of India.
16. Accordingly, Mr. Phukan, raised objection and submitted that it is not at all a fit case to grant bail to the petitioner, at this stage.
17. Heard the submissions of the learned counsel for the parties. I have also perused the scanned copy of the records and the earlier rejection order dated 19.06.2024, wherein, all the prospects of the case was considered, while rejecting the bail application.
18. It is seen that the present application has been filed only on the ground of long incarceration and as well as on the ground that the vital witnesses of the prosecution has already been examined. But considering the submission of Mr. Hassan, learned Special PP it reveals that there are 5/6 witnesses, who are yet to be examined by the prosecution, which may be vital for the prosecution case. Being the employee of the same department or the colleagues of the petitioner, the probability of hampering with the evidence of those witnesses also cannot Page No.# 7/8 be denied at this stage and the informant of the case is yet to be examined by the prosecution, who is one of the vital witnesses of the prosecution.
19. Further, it is correctly submitted by the learned Amicus Curiae in regards to the communication of the ground of arrest and it is admitted fact that the petitioner himself surrendered before the police on coming to know about the registration of the case against him. Thus, it cannot be held that he was not aware about the grounds of his arrest, as claimed by the petitioner.
20. As the detail discussion on the merit has been made in the earlier rejection order, I do not find it proper to repeat the same observation, however, this Court is of the opinion that till examination of those 5/6 vital prosecution witnesses enlarging of the petitioner on bail at this stage may hamper or tamper the evidence of those prosecution witnesses.
21. In the case of Rajesh Ranjan [(2004) 7 SCC 528], the Hon'ble Supreme Court have held that mere fact that the accused has undergone certain period of incarceration by itself would not entitle the accused to be enlarged on bail nor the fact that the trial is not likely to be concluded in the near future, either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail. It is also held that while considering the bail application, the Court must consider the nature of accusation, the severity of the punishment in case of conviction, the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge.
22. Here in the instant case also it is seen that the trial of the case is going on a good pace and 32 numbers of witnesses have already been examined out of Page No.# 8/8 96 prosecution witnesses, as stated by the learned Special PP and only 5/6 number of vital witnesses are yet to be examined by the prosecution apart from some of the official witnesses.
23. Considering the entire facts and circumstances of the case, this Court is of the opinion that the present bail application of the petitioner, namely, Krishna Kamal Baruah is hereby rejected, at this stage. The learned Special Judge is hereby directed to examine the vital witnesses as referred above, preferably within 2/3 months.
24. In terms of the above, this bail application stands disposed of.
JUDGE Comparing Assistant