Nasiruddin Seikh @ Naser v. The State of Assam and Anr

ORDER Date : 06.03.2024 [Manish Choudhury, J.] Heard Mr. S. Das, learned counsel for the applicant-appellant; Ms. N. Das, learned Additional Public Prosecutor for the respondent no. 1, State of Assam; and Mr. R. Islam, learned counsel for the opposite party no. 2-informant.

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¶2The instant application has been preferred by the applicant seeking suspension of the sentence the applicant is presently undergoing pursuant to a judgment and order dated

31.05.2022 of conviction and sentence passed by the learned trial court of Additional Sessions Judge, Dhubri in Sessions Case no. 41/2000. The applicant as the appellant, has assailed the judgment and order in the connected the criminal appeal, Crl. A. no. 217/2022. The applicant-appellant has inter-alia been undergoing sentence of life imprisonment pursuant to his conviction under Section 302 of Indian Penal Code [IPC].

¶3By the judgment and order impugned in the connected appeal, 4 [four] accused persons viz. [1] Babu @ Hazarat Ali; [2] Fakir Chand @ Fakir; [3] Ibrahim Ali; and [4] Nasiruddin Seikh [the applicant-appellant]; have been convicted for the offences under Sections 148/149 of the Indian Penal Code [IPC] as well as for the offences under Sections 302/149, IPC. For the offences under Sections 148/149, IPC, all the accused persons including the applicant-appellant, have been sentenced to undergo rigorous imprisonment for a term of 3 [three] years with a fine of Rs. 2,000/- each with default stipulation. For the offence under Section 302, IPC, all the accused persons including the applicant-appellant, have been sentenced to undergo life imprisonment.

¶4The investigation was initiated on the basis of a First Information Report [FIR] lodged by one Sarkar Unush Mondal [P.W.3]. As per the FIR, the informant's nephew Jashim Mondal was attacked on a village road at about 6-30 a.m. on 30.06.1998. At that time, Jashim Mondal was going towards Alomganj Bazar and all on a sudden, the accused-persons named in the FIR, 6 [six] in nos. including the applicant-appellant, intercepted Jashim Mondal in front of the house of a co-villager. It was alleged that in the FIR that the accused persons injured Jashim Mondal grievously by stabbing in his abdomen with dagger. As a result, Jashim Mondal died on the spot.

¶5Mr. Das, learned counsel for the applicant-appellant has submitted that earlier, the learned trial court had acquitted all the accused persons including the applicant-appellant, but in an appeal preferred against the order in acquittal, the earlier judgment of the trial court was set aside. It was thereafter, the impugned judgment and order dated 31.05.2022 has Page No. 3/3 been rendered. It is submitted that on the same set of evidence, the applicant-appellant was acquitted earlier but on the second occasion, the learned trial court had found all the accused persons guilty of the offences, mentioned earlier. It is his submission that there are inconsistencies in the evidence of the prosecution witnesses. It is his submission that P.W.4 and P.W.5 were relatives of the deceased and as such, their depositions cannot be accepted without proper scrutiny, which, according to him, was not done by the learned trial court.

¶6Ms. Das, learned Additional Public Prosecutor, Assam has, on the other hand, referred to the Post-Mortem Examination [PME] Report which had reported that the deceased sustained multiple penetrating wounds on the abdominal part and the injuries reported in the PME Report are consistent with the deposition of the informant, who was examined as P.W.3.

¶7We are gone through the materials on record including the evidence of the witnesses and the PME Report for the purpose of consideration of the prayer for suspension of the sentence. It is prima facie found that the informant-P.W.3 in his evidence had stated about presence of all the 4 [four] accused persons, who faced the trial. From the depositions of witnesses, prima facie it has further emerged that the accused persons were not unknown to the witnesses as they belong to the same village. Having regard to the nature of accusations made against the accused persons, the manner of commission of crime; the gravity of the offence; and the desirability or otherwise of releasing the convicted accused persons on bail, this Court is of the prima facie view that this is not a fit case for exercising the power under Section 389, CrPC for suspension of sentence. In such view of the matter, the instant application stands rejected.

JUDGE JUDGE Comparing Assistant

Page No. 1/3 GAHC010151382022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/507/2022 NASIRUDDIN SEIKH @ NASER ALOMGANJ PART- 9, P.O. AND P.S.- GAURIPUR, DIST.- DHUBRI, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REP. BY THE LEARNED P.P., ASSAM. 2:SARKAR UNUSH MANDAL S/O LATE MONSER MUNSHI VILL.- HAZARI JHARNA P.O. AND P.S.- GAURIPUR DIST.- DHUBRI ASSAM Advocate for the Petitioner : MR. SURAJIT DAS Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY HONOURABLE MRS. JUSTICE MALASRI NANDI