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 prosecutrix (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 strenuously argues that there is prima facie ground for substantial doubt about conviction of the accused -Appellants. 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 Cri.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 prayed 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:

(3.) IN view of what has been stated above, and considering all aspects of the matter, it is ordered that the execution of the sentence be suspended, the realisation of fine be stayed and the accused -Appellants (1) Baharul Ali, (2) Mohibul Islam, (3) Adya Nath and (4) Brajo Gopal Saha be allowed to go on bail of Rs. 25,000/ - each with surety of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Barpeta.