Page No.# 1/11 GAHC010025022026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/131/2026 DIPAK SUBEDAR SON OF SRI BANESWAR SUBEDAR RESIDENT OF- VILLAGE- PASCHIM BALIGAON, PO AND PS RAHA, DIST- NAGAON, ASSAM 2: AJIT SUBEDAR SON OF SRI BANESWAR SUBEDAR. RESIDENT OF- VILLAGE- PASCHIM BALIGAON PO AND PS RAHA DIST- NAGAON ASSA VERSUS THE STATE OF ASSAM TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM. Advocate for the Petitioner : MR. D K BAIDYA, MR. A M BORA Advocate for the Respondent : PP, ASSAM, Linked Case : Crl.A./345/2024 DIPAK SUBEDAR AND 2 ORS S/O. SRI BANESWAR SUBEDAR VERSUS Page No.# 2/11 THE STATE OF ASSAM REP. BY THE PP ASSAM. 2:AJIT SUBEDAR S/O. SRI BANESWAR SUBEDAR 3:BANESWAR SUBEDAR S/O. LATE RAKHESWAR SUBEDAR ' ALL ARE RESIDENT OF VILL. PASCHIM BALIGAON P/O. AND P/S. RAHA DIST. NAGAON ASSAM. ------------ Advocate for : MR. D K BAIDYA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM B E F O R E HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 14.05.2026 (Sanjeev Kumar Sharma, J) Heard Mr. A.M Bora, learned Senior Advocate, assisted by Mr. D.K Baidya, learned counsel, appearing for the appellant. Also heard Ms. B Bhuyan, learned Senior Counsel & Addl. Public Prosecutor, assisted by Ms. R Das, learned counsel, appearing for the respondent. 2. By the judgment and order dated 19.08.2024 passed by the learned Additional Sessions Judge No. 2, Nagaon in connection with Sessions (T1) Case Page No.# 3/11 No.48/201, the present applicants/appellants, namely, Dipak Subedar and Ajit Subedar along with an another accused/appellant via were convicted under Sections 341/302/34 IPC and each of them were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default to undergo simple imprisonment for three months, for committing the offence under Section 302/34 IPC and to undergo simple imprisonment for a period of one month and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for 7 days, for committing the offence under Section 341 of the IPC. All the three accused persons, who have been convicted by the learned Additional Sessions Judge No.2, Nagaon including the present applicant, have preferred Criminal Appeal No. 345/2024, which is pending disposal before this Court. 3. The sentence in respect of one of the accused/appellants i.e. Baneswar Subedar was suspended vide Order dated 09.12.2024 in I.A(Crl.) 993/2024. 4. By way of the present application under Section 430 of the BNSS, the remaining two appellants i.e. Ajit Subedar and Dipak Subedar have sought suspension of sentence as well as their release on bail. 5. The prosecution case is that on 22.10.2015, at around 9:00 PM, the accused/appellants restrained the deceased on the road and assaulted him with Page No.# 4/11 rod, etc., rendering him senseless, when the son of the deceased alongwith another person took the deceased to the hospital, where he was declared brought dead. The son of the deceased i.e. Sri Rajumoni Saikia had informed the O.C, Raha Police Station about the incident on the basis of which a GD Entry was made vide Raha Police Station GDE No. 586 dated 22.10.2015 and thereafter, the police proceeded to the place of occurrence. Subsequently, an FIR was lodged by the wife of the deceased on the next date. 6. Mr. A M Bora, learned Senior Counsel for the applicants/appellants submitted that the conviction of the appellants rests on the testimony of PW-7 i.e. the son of the deceased Rajumoni Saikia and also that of PW-6 Bijit Das. Although a perusal of their evidence i.e. their examination-in-chief would indicate that while PW-6 implicated appellant Ajit Subedar, claiming to have seen him in the light of his motorcycle, while assaulting the deceased, PW-7 deposed that on the day of occurrence at around 8:15 PM, he just came out from his house after having dinner and saw his neighbor, Baneswar Subedar, loudly asking his wife Basanti Subedar to give a lathi and a dao. Thereafter he saw her handing over a dao and a lathi to her husband Baneswar Subedar. After that he saw Baneswar Subedar as a pillion rider and another was riding away in a motorcycle, taking the dao and lathi towards Dakhinpat Chariali. Then, he Page No.# 5/11 reported to his mother (PW4) that Baneswar Subedar might have quarreled with others. When he was talking with his mother, Basanti Subedar came to their homestead gate and shouted to his mother that the dead body of his father would be left and his mother should bring his dead body. Further, PW-7 Rajumoni Saikia deposed in his evidence that he immediately went towards Dakhinpat Chariali by his scooty. After crossing 1 km from his house, on the road he saw Dipak Subedar was holding his father and Ajit Subedar was assaulting him with a rod on the right side of his face near the eye and Baneswar Subedar was standing nearby. He witnessed the occurrence under the focus of the headlight of his scooty. Having seen the occurrence, he raised a hullah and shouted not to assault his father. Then, Dipak Subedar and Ajit Subedar fled away by motorcycle towards Dakhinpat Chariali. 7. By referring to the cross-examination of PW-6 & 7 and also the deposition of PW-9, the I.O, learned Senior Counsel has pointed out that PW-7 had never implicated the aforesaid persons i.e. the present applicants/appellants in his statement recorded under Section 161 Cr.P.C. 8. Learned Senior Counsel has also referred to the deposition of DW-2, who was posted as the in-charge of B.P Civil Hospital Outpost on 21.10.2015 and who recorded the statement of the son of the deceased Sh. Raju Saikia on Page No.# 6/11 22.10.2015 in connection with GDE No. 280 dated 22.10.2015, and the said DW-2 has deposed that Raju Saikia stated before him that on 22.10.2015 at night there was a marpit, in which his father sustained severe injuries and that while he was brought to Nagaon Civil Hospital, he died on the road and that Raju Saikia did not indicate any name of the person who assaulted his father while giving his statement. 9. It is also submitted that though the said Rajumoni Saikia had implicated the appellants in his statement under Section 164 Cr.P.C before the Magistrate, the said statement was recorded two months after the occurrence and therefore, the same appears to be a concocted one and cannot be said to corroborate the evidence of PW-7 before the Court. It is also submitted that the prosecution had withheld the evidence of DW-2 by not examining him as a prosecution witness, as his evidence would be unfavorable to the prosecution and because of which, the defence had to examine him as DW-2. It is further submitted that the DW-1, in front of whose residence the occurrence took place, did not also implicate the accused persons and that it is quite possible that the deceased sustained the injuries as a result of an accident, without any involvement of the applicants/appellants. 10. Ms. B Bhuyan, learned Addl. Public Prosecutor, has vehemently opposed Page No.# 7/11 the prayer for suspension of sentence and release of the appellants/applicants on bail and written objection in this regard has also been submitted which we have duly considered. 11. This Court, while suspending the sentence in respect of co-appellant Baneswar Subedar and releasing him to bail vide Order dated 09.12.2024 in I.A(Crl.) 993/2024 had observed as follows:- “…..Viewed from that angle, we are of the opinion that there is reasonable doubt in this case as to whether, the applicant herein had in reality, played any role leading to the death of the deceased. Such a doubt, however, may not arise with regard to the other two accused persons against whom sufficient and cogent evidence appear to be available on record. Under such circumstances, we are unable to agree with the submission made by the learned Addl. P.P that the applicant herein stands on equal footing with the other accused/appellants, who have also been convicted in this case.” 12. The learned Trial Court, while dealing with the aspect of the omission of PW-7 to state before the I.O that the present applicants/appellants were involved in the assault upon the deceased, had observed as follows:- “31. This apparent omission of PW-7 to state before the I.O (PW-9) is attributable to the way the statement of PW-7 was recorded by the IO. PW7 disclosed in his cross examination that his statement was not Page No.# 8/11 recorded on the night of the occurrence and also on the next day of the occurrence. When he went to give his statement to police, It was not recorded saying that the situation was not good at that time. Refusal of the IO to immediately record the statement of the most vital witness leaves much to be desired from the investigating officer. Against these revelation by PW7, PW9 In his cross examination revealed that he recorded the statement of PW7 twice but did not mention as to why his statement was recorded again for the second time. It is not believable that the PW7 who immediately after the occurrence informed police about the occurrence and who assaulted his father based on which a GDE was entered at the police station would specifically omit to mention the very same thing before the IO. When he (PW7) again reiterated the occurrence implicating the accused persons before the Magistrate while giving statement u/s 164 CrPC, it is not only Improbable but the same would also be unnatural to assume that he would have forgotten to mention the crucial part of the occurrence to the IO. Therefore, it appears that it was the IO who failed to record his statement promptly at the earliest opportunity and omitted to record the entire statement of the said witness. 32. If viewed from this angle the omission is not attributable to the said PW7 but to the failure of PW9 to promptly record the statement. When PW7 has consistently implicated the accused persons in his first information to police, in his Section 164 CrPC statement and then in his deposition, the failure of the IO to promptly record his statement fully cannot be used to discredit his consistent testimony. The revelation of the IO that he had recorded the statement of PW7 twice also goes to show that the IO himself was not satisfied with the recording of the statement Page No.# 9/11 of the said witness. Hence, this Court does not find any contradiction in his previous statement so as to reject his deposition. 33…. 34…. 35. DW2 is the police officer who was posted as in charge of BP Civil Hospital police out post. He deposed that on 22-10-2015 he recorded the statement of Sri Raju Saikia, son of late Runga Saikia of village Baligaon in connection with GDE No.280 dated 22-10-2015. He also claimed to have recorded the statement of one Sri Bijit Das, son of Sri Sorudhan Das. According to him, Raju Saikia stated before him that on 22-10-2015 at night there was a marpit in which his father sustained severe injuries and that when he was brought to Nagaon Civil Hospital he died on the road. Raju Saikia did not indicate any name of the person who beat his father while giving his statement. The learned defence Counsel has argued by referring to this deposition of DW2 that Raju Saikia did not name any accused before the said police officer and therefore, the accused persons were implicated subsequently. 36. With all due respect, this argument is liable to be rejected. First of all, DW2 was not the investigating officer of the case. He was neither entrusted to record any statement by the OC of Raha PS after entering the GDE No.586 dated 22-10-2015 nor was any offence reported to him at that time. The shoddy manner of recording the said purported statement is clear from the fact that the said police officer even failed to correctly record the name of the father of Raju Saikia. Neither the GDE No.280 dated 22-10-2015 nor those statements were even exhibited. The Page No.# 10/11 said BP Civil Hospital police out post, which is an outpost under the Nagaon police station, had no jurisdiction to record statement of any witness of an offence committed within and registered in the Raha police station. The revelation in his cross examination that the statement of Raju Saikia was written by pen and his signature was written using carbon paper also goes to show the discrepancy during recording of the said purported statement. PW7 in his cross examination clearly stated that he cannot remember whether he gave any statement at the hospital to police. Therefore, when the previous statement itself is not proved, the attempt of the defence to shake the prosecution case by producing ASI Sri Amar Singh Bordoloi, as DW2 also fails.” 13. A perusal of the Roha P.S GDE No. 586 dated 22.10.2015, which was recorded by the officer-in-charge of Roha Police Station clearly shows that the PW-7, son of the deceased had specifically mentioned that it was the present appellants, i.e. Dipak Subedar and Ajit Subedar, who had assaulted the deceased and thereafter, it appears to be unconvincing that the said person would omit to state before the I.O. the aforesaid facts when his statement was recorded on the very next day. Furthermore, the GDE No. 280 dated 22.10.2015 said to have been recorded by the DW-2 prima facie appears to be without jurisdiction, as he does not state as to on what basis or who made the said GD Entry at PB Civil Hospital Outpost, when a GD Entry being Roha P.S GDE No. 586 was already made at Roha Police Station. Page No.# 11/11 14. In view of the above, at this stage it would be premature to proceed on the basis that the evidence of PW-7 cannot be said to be credible or reliable and having regard to the heinous nature of the offence, for which the applicants/appellants have been found guilty by the learned Trial Court, no case for suspension of the sentence imposed upon or release of the applicants/appellants on bail is made out. 15. Needless to say, the observations made herein would have no bearing on the merits of the connected appeal. 16. The prayer stands rejected and the Interlocutory Application stands dismissed accordingly. JUDGE Comparing Assistant