HABIBUR RAHMAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. A.M. Mazumdar, learned senior counsel for the accused appellants and Mr. Noor Mohammad, learned Public Prosecutor. I have also considered the lower court records.

(2.) Mr. Mazumdar has led me through the impugned judgment and order convicting the accused appellants under Section 376(2)(j)/34 IPC and sentencing them thereunder to ten years' rigorous imprisonment and also to pay a fine of Rs. 1000/- each, in default, to further three months' rigorous imprisonment. Mr. Mazumdar urges that the accused-appellants have been falsely implicated and that the test identification parade is of no assistance to the prosecution to connect the accused-appellants with the alleged offence inasmuch as the prosecutrix (PW.2) was given an opportunity to see them after the arrest and before the T I P. In her cross-examination she said, "I saw the accused persons in the police station when I came to lodge:the FIR. I saw them in the lock-up." Mr. Mazumdar submits that the evidence on record is wholly insufficient to convict the accused-appellants. Besides the doctor (PW 1), the prasecutrix (PW 2), the Magistrate (PW 5) and the Investigating Police Officer (PW 6), the prosecution examined only two witnesses, viz, PW 3 and PW 4. Both of them did not support the prosecution case and were declared hostile. Mr. Mazumdar submits that even in the evidence of the prosecutrix (PW 2) there is material discrepancy and there is vital contradiction between her evidence and that of the investigating police officer (PW 6). PW 2 said that she showed blood stained cloth to PW 6 who took the same. PW 6 denied this. In this case nothing, and for that matter no such cloth, was seized by the police. Mr. Mazumdar streneously argues that there is prima facie ground for substantial doubt about conviction of the accused-appellants.

(3.) However, the main plank of Mr. Mazumdar's argument is the delay in disposal of the appeal. Which according to him, entitles the accused-appellants to be released on bail in view of Article 21 of the Constitution. Mr. Mazumdar points out that the instant appeal was admitted as far back as 18.8.2000, more than a year ago; and the paper book has not been prepared as yet. In Anurag Baitha's case 1987 Crl.L.J. 2037, the accused-appellant was convicted under Sections 302/34/333 IPC read with Section 27 of the Arms Act and was sentenced to life imprisonment on the capital charge. In appeal, the High Court refused bail to him. More than a year thereafter he renewed his prayer for bail. Noticing the two competing principles, namely, one which is applied when the prayer for bail is refused on merits; and the other arising on account of the long incarceration of the accused and the inevitable delay in hearing of his appeal, the matter was referred to a larger bench. The Full Bench held : "Art. 2 1 does not stop short at the end of the trial but continues to extend its protective shield even after the post-conviction stage. Equally it has to be borne in mind that in the event of later acquittal by the appellate court the long incarceration in jail during the pendency of the appeals is inherently incompenstable in terms of money. Even assuming that S. 389 does not envisage the questions of delay, the applicability of Art. 21 and the right of speedy trial and expeditious hearing of substantive appeals cannot be possibly excluded from this area. Barring exceptions the reasonable period of time for the hearing of substantive appeals on capital charges pending in the High Court must be broadly one year. Once this is so fixed, a convict would become entitled to claim bail on the ground of the delay in hearing the appeal itself unless there are cogent grounds for acting otherwise. To the following horrendous capital crimes (categorisation is not exhaustive) which are shocking to the conscience of society, the general rule stated above shall not apply :- (a) Multiple and mass murders on caste and tribal considerations. (b) Dacoity coupled with murder. (c) Rape with murder. (d) Bride Burning. (e) Terrorist crime. (f) Daylight bank robbery; abduction for ransom followed by murder; indiscriminate use of firearms and bombs in murders disturbing public order.