Farida Yesmin And 3 Ors vs State Of Assam

Heard Mr. N.K. Kalita, learned counsel for the petitioners; Mr. P.S. Lahkar, learned Additional Public Prosecutor for the respondent State of

Assam; and Ms. B. Bhuyan, learned counsel for the informant.

By this application under Section 438, Code of Criminal Procedure, 1973 [CrPC], the petitioners viz. 1) Farida Yesmin, 2) Bimala Khatun, 3) Golapi

Khanam, and 4) Niyamat Khan have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with

Chhaygaon Police Station Case no. 1292/2021, registered under Sections 376/354C/302/201/143/325/379, Indian Penal Code [IPC].

The concerned case diary has been produced by the learned Additional Public Prosecutor.

The informant has lodged the First Information Report [FIR] on 01.11.2021 wherein she has named seven persons as accused and the accused

persons are â€" [i] Alep Khan, [ii] Farida Yasmin, [iii] Niyamat Khan, [iv] Bimala Khatun, [v] Golapi Khatun, [vi] Ismile Khatun, and [vii] Saleha

Khatun. The accused no. 2 is the wife of the accused no. 1; the accused no. 3 and the accused no. 4 are the father and mother respectively of the

accused no. 1; and the accused no. 5 is the sister of the accused no. 1.

From the materials in the case diary including the statements of the informant recorded under Section 161, CrPC and under Section 164, CrPC of

the informant and another witness, it is noticed that the husband of the informant used to live in another State for the purpose of earning his livelihood

and the informant used to stay in her house alone. The accused no. 1 had been maintaining physical relations with the informant with the use of threat

since a long period of time. As a result of such physical relationship maintained by the accused no. 1 with the informant under threat, the informant

became pregnant. When she became pregnant, the accused no. 1 tried to commit miscarriage by administering medicine to the informant. The

informant had, however, been able to give birth to a baby in the meantime. Having received the information, the accused no. 1 also called his other

family members named in the FIR to the house of the informant. After arrival of other accused persons i.e. the accused no. 2, the accused no. 3 and

the accused no. 5, the accused no. 1 snatched the new born baby from the clutches of the informant and took the baby to another room and killed the

new born baby by strangulation in presence of the said other accused persons maid servant of the informant. The informant, even after the incident,

tolerated the tortures inflicted by the accused no. 1. When on 28.10.2021, the informant along with the maid servant and another witness went to the

house of the accused no. 1 to apprise the father of the accused no.1 i.e. the accused no. 3 about the earlier incidents, they were asked to sit.

Thereafter, the accused no. 2, the accused no. 4 and the accused no. 5 came to the place and at the instigation of the accused no. 1, they physically

assaulted the informant. The maid servant had, however, stated that the accused no. 3 was not aware of the aforesaid events. The maid servant, the

informant and another witness who went to the house of the accused persons had, in their statements, did not specifically implicated the accused no. 3

for any participation in the incident of assault upon the informant.

Having considered the materials in the case diary including in the statements of the informant and the other witnesses against the petitioners which

are incriminating in nature, this Court is of the view that the benefit of pre-arrest bail under Section 438, CrPC cannot be extended to the petitioner no.

1 [accused no. 2], the petitioner no. 2 [accused no. 4], and the petitioner no. 3 [accused no. 5]. However, considering the fact that the maid servant

has not implicated the petitioner no. 4 [accused no. 3] in committing the act of killing of the new born baby and in the act of assault upon the

informant, this Court is of the view that the benefit of pre-arrest bail under Section 438, CrPC can be extended to the petitioner no. 4 provided he

extends his co-operation and assistance in the further investigation of the case.

Accordingly, while rejecting the prayer for pre-arrest bail of the petitioner no. 1, the petitioner no. 2, and the petitioner no. 3, it is provided that in the

event of arrest of the petitioner no. 4 viz. Niyamat Khan in connection with Chhaygaon Police Station Case no. 1292/2021, he shall be released on bail

on furnishing a bail bond of Rs. 25,000/- with one local surety of the like amount, to the satisfaction of the arresting authority subject to the conditions

that :

[i] the petitioner no. 4 appear before the Investigating Officer [I.O.] of the case within 10 [ten] days from today and shall co-operate with the

investigation and shall thereafter, make himself available for interrogation whenever required by the I.O. of the case;

[ii] the petitioner no. 4 shall not, directly or indirectly, make any inducement, threat or promise to any witness acquainted with the facts of the case so

as to dissuade him from disclosing such facts to the court or to any police officer;

[iii] the petitioner no. 4 shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected

by the police;

[iv] the petitioner no. 4 shall maintain law and order and he shall not commit an offence similar to the offence of which he is accused, or of the

commission of which he is suspected; and

[v] the petitioner no. 4 shall regularly remain present during the trial and co-operate the Court to complete the trial for the above offences, if charge

sheeted in the case.

The bail petition stands disposed of in the aforesaid terms.

Return the case diary.