Gauhati High Court
Page No.# 1/6 vs The State Of Assam on 13 December, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/6
GAHC010222572022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3255/2022
FARIDA YASMIN AND 4 ORS
W/O ALEF KHAN
R/O GOROIMARI SATRA
P.S. CHHAYGAON
DIST. KAMRUP, ASSAM
PIN-781137
2: BIMALA KHATUN
W/O NIYAMAT KHAN
R/O GOROIMARI SATRA
P.S. CHHAYGAON
DIST. KAMRUP
ASSAM
PIN-781137
MOB. NO. 9864027090
3: GOLAPI KHATUN @ KHANAM
R/O GOROIMARI SATRA
P.S. CHHAYGAON
DIST. KAMRUP
ASSAM
PIN-781137
MOB. NO. 9864027090
4: ISMAIL HOQUE @ ISMAIL HUSSAIN
S/O LOKMAN ALI
R/O TUKRAPARA
P.S. CHHAYGAON
DIST. KAMRUP
ASSAM
PIN-781137
MOB. NO. 9864027090
5: SALEHA KHATUN
Page No.# 2/6
W/O ISMAIL HUSSAIN
R/O TUKRAPARA
P.S. CHHAYGAON
DIST. KAMRUP
ASSAM
PIN-781137
MOB. NO. 98640 2709
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE LEARNED, PP, ASSAM
Advocate for the Petitioner : MR. A K AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 13-12-2022 Heard Mr. A.K. Ahmed, learned counsel for the petitioners and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent State of Assam.
2. By this application under Section 438, Code of Criminal Procedure, 1973 [CrPC], the petitioners viz. [1] Farida Yasmin, [2] Bimala Khatun, [3] Golapi Khatun @ Khanam, [4] Ismail Hoque @ Ismail Hussain and [5] Saleha Khatun have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with Chhaygaon Police Station Case no. 1292/2021, registered for offences punishable under Sections 376/354C/302/201/143/ 325/379, Indian Penal Code [IPC].
Page No.# 3/6
3. The petitioner no. 1, petitioner no. 2 and the petitioner no. 3 had earlier preferred a bail application, A.B. no. 4353/2021 along with another named accused viz. Niyamat Khan as the petitioner no. 4 therein. When the bail application, A.B. no. 4353/2021 came up for consideration on 01.02.2022, the learned Additional Public Prosecutor produced the concerned case diary. Upon perusal of the materials in the case diary, then available on 01.02.2022, the prayers for pre-arrest bail in respect of the petitioner no. 1 [Farida Yesmin], petitioner no. 2 [Bimala Khatun] and petitioner no. 3 [Golapi Khatun] were rejected by order dated 01.02.2022 while allowing the prayer for pre-arrest bail of the other accused named in the FIR, Niyamat Khan [petitioner no. 4 therein], subject to terms and conditions mentioned in the order dated 01.02.2022.
4. The petitioner no. 1 who is named as accused no. 2 [A-2], is the wife of accused no. 1. The petitioner no. 2 [A-4] is the mother of the accused no. 1 whereas the petitioner no. 3 [A-5] is the sister of the accused no. 1. The petitioner no. 4 [A-6] and the petitioner no. 5 [A-7] are the father-in-law and the mother-in-law of the accused no. 1.
5. When the case diary was produced on 01.02.2022 for the purpose of consideration of pre-arrest bail prayers of the petitioner no. 1, petitioner no. 2 and the petitioner no. 3, this Court has recorded as under :
" From the materials in the case diary including the statements of the informant recorded under Section 161, CrPC and under Section 164, CrPC of the informant and another witness, it is noticed that the husband of the informant used to live in another State for the purpose of earning his livelihood and the informant used to stay in her house alone. The accused no. 1 had been maintaining physical relations with the informant with the use of threat since a long period of time. As a result of such physical relationship maintained by the accused no. 1 with the informant under threat, the informant became pregnant. When she became pregnant, the accused no. 1 tried to Page No.# 4/6 commit miscarriage by administering medicine to the informant. The informant had, however, been able to give birth to a baby in the meantime. Having received the information, the accused no. 1 also called his other family members named in the FIR to the house of the informant. After arrival of other accused persons i.e. the accused no. 2, the accused no. 3 and the accused no. 5, the accused no. 1 snatched the new born baby from the clutches of the informant and took the baby to another room and killed the new born baby by strangulation in presence of the said other accused persons [and] maid servant of the informant. The informant, even after the incident, tolerated the tortures inflicted by the accused no. 1. When on 28.10.2021, the informant along with the maid servant and another witness went to the house of the accused no. 1 to apprise the father of the accused no.1 i.e. the accused no. 3 about the earlier incidents, they were asked to sit. Thereafter, the accused no. 2, the accused no. 4 and the accused no. 5 came to the place and at the instigation of the accused no. 1, they physically assaulted the informant. The maid servant had, however, stated that the accused no. 3 was not aware of the aforesaid events. The maid servant, the informant and another witness who went to the house of the accused persons had, in their statements, did not specifically implicate the accused no. 3 for any participation in the incident of assault upon the informant."
6. Having considered the above materials available in the case diary, then produced, the prayers for pre-arrest bail in respect of the petitioner no. 1 [A-2], the petitioner no. 2 [A-4] and the petitioner no. 3 [A-5] were rejected.
7. Mr. Goswami, learned Additional Public Prosecutor has submitted, on the basis of the materials in the case diary, received by him today, that subsequently, the places where the new born baby was stated to be buried, as identified by the informant, were duly dugged up by following all the formalities and in presence of the Circle Officer, Goraimari Revenue Circle, concerned Gaon Burah and other officials. But no evidence regarding any buried human body was found at such dugged up places. The informant, at a later point of time, in her statement recorded under Section 161, CrPC has stated that she had, in fact, given birth to Page No.# 5/6 a still born baby and the baby was not live one, which is contrary to what she stated earlier.
8. There are no materials in the case diary attributing any overt act on the part of the petitioner no. 4 and the petitioner no. 5 in any of the incidents alleged by the informant in the FIR. The petitioner no. 4 and the petitioner no. 5 reside at a different locality.
9. It is settled that after rejection of an application for pre-arrest bail under Section 438, CrPC on merits, there is scope to file a subsequent bail application for pre-arrest bail if there is change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.
10. Having regard to the materials presently available in the case diary, produced by the learned Additional Public Prosecutor today and in view of the changed version of the informant during the course of investigation, this Court is of the considered view that, this Court is of the considered view that custodial interrogation of the petitioners for the purpose of carrying out further investigation of the case is not necessary and their release on pre-arrest bail, at this stage of investigation, is not unlikely to bring any adverse effect in the further investigation of the case, provided the petitioners continue to extend their assistance and co-operation in the further investigation of the case.
11. Accordingly, it is provided that in the event of arrest of the petitioners in connection with Chhaygaon Police Station Case no. 1292/2021, they shall be released on bail on furnishing a bail bond of Rs. 25,000/- each with one local surety of the like amount each to the satisfaction of the arresting authority, subject to the conditions that :
Page No.# 6/6 [i] the petitioners shall appear before the Investigating Officer [I.O.] of the case within 10 [ten] days from today and shall co-operate with the investigation and shall thereafter, make themselves available for interrogation whenever required by the I.O. of the case;
[ii] the petitioners shall not, directly or indirectly, make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
[iii] the petitioners shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
[iv] the petitioners shall maintain law and order and he shall not commit an offence similar to the offence of which he is accused, or of the commission of which he is suspected; and [v] the petitioners shall regularly remain present during the trial and co- operate the Court to complete the trial for the above offences, if charge sheeted in the case.
The bail petition stands disposed of in the aforesaid terms.
JUDGE Comparing Assistant