Page No.# 1/4 GAHC010099912025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/487/2025 ASHIRON NESSA @ ASIRAN NESSA W/O. LT. HUSSAIN ALI, VILL.- FURHANI ATI, P/O. LETERPAR BAZAR, P/S. JURIA, DIST. NAGAON, ASSAM, PIN-782124. VERSUS THE STATE OF ASSAM REP BY PP ASSAM 2:ABDUL HAMID S/O. LT. JABED ALI VILL.- HATIMORIA P/S. MOIRABARI DIST. MORIGAON ASSAM PIN-782126 Advocate for the Petitioner : MR E AHMED, MR. K A MAZUMDER,MR A HAI,MISS R A CHOUDHURY Advocate for the Respondent : PP, ASSAM, Linked Case : Crl.A./63/2025 ASHIRON NESSA @ ASIRAN NESSA W/O. LT. HUSSAIN ALI VILL.- FURHANI ATRI P/O. LETERIPAR BAZAR P/S. JURIA DIST. NAGAON ASSAM PIN-782124. Page No.# 2/4 VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP ASSAM. 2:ABDUL HAMID S/O. LT. JABED ALI VILL.- HATIMORIA P/S. MOIRABARI DIST. MORIGAON ASSAM PIN-782126. ------------ Advocate for : MR E AHMED Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 04/08/2025 (Michael Zothankhuma, J) Heard Mr. K.A. Mazumdar, learned counsel for the applicant/appellant. Also heard Ms. A. Begum, learned APP, Assam, appearing for the respondent no.1. The instant Interlocutory Application seeks suspension of the sentence passed against the applicant/appellant in Sessions (T-1) Case No. 98/2013 by the learned Sessions Judge, Nagaon, vide judgement and order dated 24/01/2024, by which the applicant has been convicted under section 302 IPC. The applicant’s counsel submits at the outset that in terms of the NALSA Special Campaign for Old Prisoners and Terminally ill Persons, which had been flagged off on 10/12/2024, prisoners who are above 70 years of age, ought to be released on bail. The applicant’s counsel submits that the applicant has been convicted Page No.# 3/4 under section 302 IPC for having murdered her daughter-in-law by burning her with Kerosene. He submits that the Police had arrested the applicant, her husband and son, in connection with the death of the deceased daughter-in-law due to burn injuries. He submits that though the applicant had made a dying declaration on 14/06/2011 at 4-45 p.m. implicating the present applicant and her husband, the evidence of PWs- 2, 3 & 8 is to the effect that the deceased had told them that she had caught fire while cooking ‘Dal’. He accordingly submits that the evidence relied upon by the Court is contradictory. The learned trial Court could not have convicted the applicant, when there were two different/contradictory sets of evidence, one in favour of the applicant and the other against the applicant. He also submits that the applicant’s husband had died during the criminal proceeding in the learned trial Court. Further, as the applicant’s son had been acquitted, there should be parity of decision on the same set of facts. Ms. A. Begum, learned APP, Assam, on the other hand, submits that when there is a dying declaration made before a Doctor and witnesses, the contents of the dying declaration would have to be accepted by the trial Court, even if there is contradictory evidence made by the prosecution witnesses. Accordingly, the application under section 430 BNSS should be rejected. We have heard the learned counsels for the parties. The evidence of PWs 2 & 3 is to the effect that they had a heard a hue and cry coming from the house of their neighbour i.e. the deceased. On reaching the said residence, they found that the deceased was on fire. On asking the deceased with regard to the same, the deceased stated that she caught fire while she was cooking ‘Dal’. PW-8 also reiterated the evidence of Page No.# 4/4 PWs 2 & 3, due to PW-2 telling the PW-8 what the deceased had told PW-2. On the other hand, the dying declaration of the deceased points the finger of blame towards the applicant and her husband for setting her on fire on the said date, which ultimately led to the deceased losing her life. Without going deeply into the merits of the case, we are of the view that as there are contradictory evidence, we cannot ignore the evidence given in favour of the applicant at this stage. Accordingly, we are prima facie of the view that the sentence imposed upon the applicant vide judgement dated 24/01/2024 passed by the learned Sessions Judge, Nagaon in Sessions (T-1) Case No. 98/2013, arising out of Juria PS Case No. 157/2011 should be suspended. Thus, the impugned sentence passed by the learned Trial Court is suspended in view of the contradictory evidence submitted by the prosecution and keeping in view the old age of the applicant, who is 72 years of age. The applicant, viz. Ashiron Nessa @ Asirun Nessa is accordingly allowed to go on bail, on furnishing a bail bond of Rs. 35,000/- (Rupees thirty five thousand), with one surety of like amount to the satisfaction of the learned Sessions Judge, Nagaon. The IA stands disposed of. Registry to place the written objection filed by the State on 02/08/2025 in the records of the case. JUDGE JUDGE Comparing Assistant