THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. THE STATE OF ASSAM

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA Date : 04.11.2022 ORDER Heard Mr. F.A. Laskar, learned counsel for the petitioners. Also heard and Mr. M.P. Goswami, learned APP appearing for the State and Mr. D. Hussain, learned counsel for the informant.

By this application under Section 438 Cr.P.C., the petitioners, namely, (1) Manowar Hussain Barbhuiya, (2) Mubarak Hussain Barbhuiya, (3) Jasmol Hussain Barbhuiya, (4) Tajmol Hussain Barbhuiya, and (5) Habijur Rahman Barbhuiya, are seeking pre-arrest bail, apprehending arrest in connection with Kalain PS Case No. 94/2022 under Section 147/ 148/ 447/ 448/ 380/ 435/ 436 IPC corresponding to GR Case No. 2414/2022.

Although the case diary of Kalain PS Case No. 71/2022 and Kalain PS Case No. 94/2022 were called for, but only the case diary of Kalain PS Case No. 94/2022 is produced. The learned APP seeks some more time to produce the case diary of Kalain PS Case No. 71/2022. However, as the said case diary of Kalain PS Case No. 71/2022 was not produced despite orders dated 05.09.2022,

19.09.2022, 29.09.2022, 26.09.2022 and 28.10.2022, the Court has proceeded to hear the matter on the basis of available case diary. It is stated that the learned Addl. P.P. as well as the learned counsel appearing for the informant Page No.# 3/6 have opposed the prayer for pre-arrest bail.

As per the FIR dated 13.06.2022, it is alleged that at 2 PM on 10.06.2022, the 15 FIR named accused along with others came together at the residence of the brother of the informant with dao, spade, dagger and other deadly weapons and by attacking their house and shops, they took away valuable articles like gold, silver and cash and they tried to assault the informant and her family and they also destroyed the valuable articles of the house and by pouring petrol, the house of the informant’s brother was set on fire and although the fire brigade came, but the house could not be saved. It was alleged that the destroyed or stolen articles were one variety shop, one power tiller, one motorcycle, one computer, one colour T.V., one laptop, one washing machine one, refrigerator, one rice mill, 70 kgs of rice stored in the house, food items of cattle, six bhori of golden ornaments, valuable documents, deeds and NRC documents and it was further alleged that the value of damaged articles was about Rs.45-46 lakh. It was also stated that except the clothes worn by informant and her family, rest everything was ruined.

On perusal of the case diary, it appears that the grocery shop of Islam Uddin was burned down and one mezi ghar on an open paddy field was also burned down. The witnesses examined by the I.O had denied that except for the grocery shop, the houses of the informant was burned. In course of investigation, it was found that items like fridge, washing machine, power tiller, rice mill, motorcycle, etc. was not found burned. It was found that a plastic sheet by which the power tiller was covered was partly burned and the I.O. has found that the lid of diesel tank was opened and diesel was spilled and then the fire was ignited. The aforesaid state of affairs is apparent from the statements Page No.# 4/6 of various witnesses as well as note/ remark by the I.O.

From the investigation carried out so far, it appears that at 6 AM on the day of incident, i.e. 10.06.2022, the informant’s side of Kalain PS Case No. 94/2022 were ploughing in the paddy filed allegedly belonging to the accused persons in Kalain PS Case No. 94/2022 and when they tried to obstruct them, the informant’s side in Kalain PS Case No. 94/2022 attack them and resultantly three persons were grievously injured and they were sent to Kalain CHC, where after treatment they were referred to SMCH, Silchar, where were the doctor declared one of injured, namely, Azizur Rahman as brought dead and the two members of the accused in Kalain PS Case No. 94/2022 were undergoing treatment at SMCH, Silchar then. Accordingly, on 10.06.2022 a GDE was made at 1.00 PM and FIR was lodged at about 11.40 PM on 10.06.2022, which was registered as Kalain PS Case No. 71/2022 under Section 143/147/148/149/120B/325/326/302 IPC.

It appears that the after the news of the death of Azizur Rahman spread, members of the accused persons in Kalain PS Case No. 94/2022 attacked the house of the informant and burn the shop and house of Islam Uddin and one mezi ghar situated at the open paddy field.

The learned counsel for the informant has submitted that all the houses of the informant’s side was completely burned down including motorcycle, power tiller etc. and in this regard, the learned APP has also supported the projection made by the learned counsel for the informant.

As already indicated above, the case diary does not reveal that the dwelling houses of the informant was burned and perhaps because in Page No.# 5/6 Assamese, the I.O. has mentioned the burnt area as shop house, the learned APP is under impression that the dwelling house of the informant was burned down. However, the investigation carried out so far does not support that the dwelling houses of the informant’s side was burned down and that fridge, washing machine, power tiller, rice mill, motorcycle, etc. was burned.

This anticipatory bail application stands disposed of.

Return the case diary. JUDGE Comparing Assistant