Page No.# 1/6 GAHC010081592025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/380/2025 AMIDUL ISLAM @ MD. AMIDUL ISLAM AND 3 ORS S/O- AZIMUDDIN 2: ABDUL ALI @ MD. ABDUL ALI S/O. AZIM UDDIN 3: AZIMUDDIN @ MD. AZIMUDDIN S/O. LT. TAIZUDDIN 4: RAHIM BADSHA @ MD. RAHIM BADSHA S/O. AZIMUDDIN ALL ARE R/O. VILL. 9 NO. BLOCK KAWAIMARI P/S. SARTHEBARI DIST. BARPETA ASSAM VERSUS THE STATE OF ASSAM REP. BY THE P.P, ASSAM. Advocate for the Petitioner : MR H A AHMED, MR H A AHMED,MR. A AHMED,MR H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM, Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 23-10-2025 [M. Choudhury, J] Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. I.U. Choudhury, learned counsel for the applicants-appellants; and Ms. B. Bhuyan, learned Senior Counsel & Additional Public Prosecutor assisted by Ms. R. Das, learned counsel for the respondent State of Assam. 2. The instant application under Section 389, Code of Criminal Procedure is preferred seeking suspension of execution of the sentence passed against the applicants-appellants and their release on bail. The applicants has the appellants have preferred the accompanying criminal appeal against a Judgment and Order dated 11.03.2025 passed by the Court of learned Sessions Judge, Barpeta [‘the Trial Court’, for short] in Sessions Case no. 176/2022. By the Judgment and Order dated 11.03.2025, the Trial Court has convicted all the applicants- appellants for the offences under Section 302 and Section 323 of the Indian Penal Code [IPC] read with Section 34, IPC. All the applicants-appellants have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each with default stipulation for the offence under Section 302, IPC read with Section 34, IPC. They have also been sentenced to undergo rigorous imprisonment of one year and to pay fine of Rs. 1,000/- each with default stipulation, for the offence under Section 323, IPC read with Section 34, IPC. 3. During the course of the trial, the prosecution side examined 11 [eleven] nos. of prosecution witnesses. One witness was examined as Court Witness Page No.# 3/6 [C.W.1]. the defence side examined 5 [five] nos. of witnesses as Defence Witnesses [D.W.1 – D.W.5]. 4. The allegations in the First Information Report [FIR], lodged on 14.05.2022, were inter alia to the effect that at around 04-00 p.m. on 13.05.2022, all the four applicants-appellants, who were named in the FIR, assaulted one Najrul Islam to death and also caused injuries to the informant- P.W.1, Mirjan Ali; the wife of Najrul Islam, Eliza Ahmed [P.W.3] and the mother of Najrul Islam, Sundari Nessa [C.W.1]. 5. Mr. Choudhury, learned Senior Counsel appearing for the applicants- appellants has submitted that there was prior animosity between the family of the deceased and the family of the applicants-appellants. He has further submitted that the applicants-appellants had also sustained injuries in the same incident and as such, the version of the prosecution side was doubtful and it would appear that the family of the deceased was in fact the aggressor in the said incident. He has further submitted that the even if the testimony of the prosecution witnesses are assumed to be true, then by no stretch, the death of the deceased in the incident can be termed as one under Section 302, IPC. He has further submitted that there was never any intention on the part of the applicants-appellants to cause death of the deceased. There were a nos. of discrepancies in the prosecution case. 6. On the other hand, Ms. Bhuyan, learned Senior Counsel & Additional Public Prosecutor appearing for the State has submitted that apart from the deceased, there were injured eye witnesses in the incident, that is, P.W.1, P.W.3 and C.W.1. Page No.# 4/6 The testimony of the injured eye witnesses are consistent as regards the assault committed by all the four applicants-appellants. The testimony of the injured witnesses are corroborated by the other prosecution witnesses like P.W.2, P.W.4, P.W.5 and P.W.6, who testified to have witnessed the incident. Ms. Bhuyan has further submitted that since it has emerged from the record that the deceased sustained injuries on his head and sustained fracture in the skull and he died at the hospital on the date of the incident itself. 7. As per the Post-Mortem Examination Report [Ext.-2] and the testimony of the Autopsy Doctor [P.W.9], the deceased sustained linear fracture on his skull and left parietal bone. As per the opinion of the Autopsy Doctor, the death was due to coma as a result of the injuries sustained over the head. It has further emerged from the evidence on record that the deceased died on the date of the incident itself, that is, on 13.05.2022. As per the testimony of the injured eye- witnesses and the other eye-witnesses, the assaults were made by wooden logs and bamboo sticks and the injuries sustained by the deceased and the injured seem to be consistent with the instruments of assault. 8. The incident has occurred near the residences of both the sides. As per the testimonies of P.W.1, P.W.3 and C.W.1, they also sustained injuries in the incident and such part of the testimony of these witnesses had received corroboration from the evidence of P.W.11, who was the Medical & Health Officer at Srukshetri CHC. 9. The prosecution witnesses, P.W.2, P.W.4, P.W.5 & P.W.6, who stated themselves to be the neighbours of both the sides, deposed to the effect that Page No.# 5/6 they witnessed the incident wherein all the applicants-appellants had taken part. As per their testimony, the applicants-appellants’ side was the aggressor. From the evidence of D.W.1 and D.W.2, it transpires that two of the applicants- appellants viz. Azimuddin and Rahim Badsha also received medical treatment allegedly for sustaining grievous injury and simple injury respectively. However, during cross-examination of the prosecution witnesses, it was not even suggested that the applicants-appellants had also sustained injuries in the same incident. 10. In considering the prayer for suspension of execution of the sentence and the prayer for bail involving a serious offence like murder punishable under Section 302, IPC, the Court has to give consideration to the relevant factors like the nature of accusation made against the applicants-appellants; the manner of commission of the alleged crime; the gravity of the offence and the sentence imposed. 11. After going through the evidence on record, more particularly, the testimony of the autopsy doctor and the injured eye witnesses, which truth substantially corroborated by the other witnesses, this Court is of the considered view that applicants-appellants have not been able to made out a prima facie case for suspension of execution of the sentence passed against them. In such view of the matter, this Court is of the considered view that the instant application is not merited at this stage. 12. It is, however, made clear that the observations made hereinabove are only for the purpose of considering the prayer for suspension of execution of the sentence and grant of bail to the applicants-appellants and the same shall not be construed as observations made with regard to the merits of the Page No.# 6/6 accompanying criminal appeal. JUDGE JUDGE Comparing Assistant