JUDGMENT : 1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. A. Ahmed, learned counsel for the accused-petitioners and Mr. B. Sharma, learned Additional Public Prosecutor for the respondent State of Assam. 2. By this application under Section 439, Code of Criminal Procedure, 1973 [CrPC], the accused-petitioners viz. [1] Saiful Islam, [2] Injamamul Khan @ Injamul Khan, [3] Badshah Fakir, and [4] Faridul Islam have prayed for their release on bail in connection with Sessions Case no. 160/2022, presently pending before the Court of learned Additional Sessions Judge [FTC], Barpeta, Assam [‘the trial court’, for short]. The case, Sessions Case no. 160/2022 has arisen out of Tarabari Police Station Case no. 34/2022, which was registered for offences under Sections 120B/325/385/302, Indian Penal Code [IPC]. 3. The First Information Report [FIR] in connection with Tarabari Police Station Case no. 34/2022 was lodged by one Faizur Rahman [the informant] on 17.04.2022 wherein he named 8 [eight] persons including the present four accused-petitioners, as accused. The informant stated that his cousin brother, Rubul Hoque Choudhury [the deceased] and one Ramela Khatun were having a love affair. At around 12/12-30 noon on 16.04.2022, the two of them were at the bank of the river Brahmaputra near Bandali Reserve Forest. As they were conversing, the accused persons arrived the place and by apprehending both of them, the accused persons physically assaulted them. The accused persons thereafter, sent the girl back to her house but kept Rubul Hoque Choudhury with them on the pretext of holding Bichar. They had demanded money from Rubul Hoque Choudhury and when he could not pay the demanded amount, Rubul Hoque Choudhury was assaulted to death and his dead body was thrown in the river Brahmaputra. The informant stated to have come to learn about the incident from Ramela Khatun. The informant had mentioned that apart from the named accused persons, other accused persons were also involved. 4. On receipt of the FIR, the Officer In-charge, Tarabari Police Station registered the FIR as Tarabari Police Station Case no. 34/2022 under Sections 120B/325/385/302, IPC on 17.04.2022. The 4 [four] accused-petitioners along with two other named accused persons, were arrested during the course of investigation and they were produced before the Court of learned Sub-Divisional Judicial Magistrate, Barpeta on 19.04.2022. On being so produced, the accused-petitioners were remanded to custody and since 19.04.2022, all the accused-petitioners are in custody. 5. 34/2022 under Sections 120B/325/385/302, IPC on 17.04.2022. The 4 [four] accused-petitioners along with two other named accused persons, were arrested during the course of investigation and they were produced before the Court of learned Sub-Divisional Judicial Magistrate, Barpeta on 19.04.2022. On being so produced, the accused-petitioners were remanded to custody and since 19.04.2022, all the accused-petitioners are in custody. 5. The Investigating Officer [I.O.] of the case after completing investigation in connection with Tarabari Police Station Case no. 34/2022, submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 36/2022 dated 15.07.2022 finding a prima facie case for commission of offences under Sections 120B/385/323/354/302, IPC against 6 [six] nos. of accused persons including the present 4 [four] accused-petitioners. The other two charge sheeted accused persons are [1] Darog Ali @ Jakir Ali and [2] Lal Mamud Khan @ Mamud. At the time of submission of the charge sheet, all the 6 [six] charge sheeted accused persons were in judicial custody. In the charge sheet, the I.O. of the case enlisted 33 [thirty three] nos. of persons as prosecution witnesses [PWs]. Included amongst them are [1] Amirul Islam at serial no. 7 and [2] Joinal Miya at serial no. 8, who earlier were amongst the 8 [eight] nos. of accused persons named by the informant in the FIR. 6. On submission of the charge sheet, the case stood committed to the Court of learned Sessions Judge, Barpeta. On being so committed, the case has been registered as Sessions Case no. 160/2022. The case was thereafter transferred to the Court of learned Additional Sessions Judge [FTC], Barpeta [the trial Court] for disposal. On 25.07.2022, the charge sheeted accused persons were produced from judicial custody and after hearing the learned Additional Public Prosecutor and the learned defence counsel on the point of charge, the learned trial court framed charges for the offences under Sections 120B/385/323/354/302, IPC against all the accused persons. The charges were thereafter, read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The case thereafter proceeded for trial. In the course of the trial, recording of evidence of 12 [twelve] nos. of prosecution witnesses [PWs] have been completed on 29.10.2022. 7. For consideration of the prayers for bail of the accused-petitioners, the scanned copies of the case record of Sessions Case no. The case thereafter proceeded for trial. In the course of the trial, recording of evidence of 12 [twelve] nos. of prosecution witnesses [PWs] have been completed on 29.10.2022. 7. For consideration of the prayers for bail of the accused-petitioners, the scanned copies of the case record of Sessions Case no. 160/2022 and the case diary of Tarabari Police Station Case no. 34/2022 were called for and the same have been received. 8. Mr. Choudhury, learned senior counsel for the accused-petitioners has referred extensively to the depositions of the prosecution witnesses, more particularly, of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 [the informant] to submit that no evidence has emerged against the accused-petitioners to hold them responsible for the death of the deceased. He has further submitted that the deceased had met his death as a result of drowning. He has submitted that when the deceased was confronted by some persons at the river bank with the allegation that he was indulging in immoral act with the girl, the deceased on the apprehension that he would face retribution at the hands of the villagers immediately, tried to escape from the scene by jumping into the river. When he jumped into the river, he might have got himself hurt by getting smacked with stones at the riverbed. It was as a result of such impact the deceased had ultimately met his death. The girl with whom the deceased was found at the river bank on the alleged date of incident, had deposed as P.W.1. In her deposition, more particularly, in her cross-examination, she stated that she did not know how the deceased died after she returned from the place of occurrence. She deposed to the effect that after she was brought back from place of occurrence by her cousin, she did not know what had happened thereafter, with the deceased. It is also his submission that the other witnesses also did not depose to the effect that they had seen any overt act on the part of the accused-petitioners in the act of alleged assault on the deceased. 8.1. It has also been submitted on behalf of the accused-petitioners that the investigation in relation to the crime is complete in all respects since a charge sheet has already been submitted. Therefore, there is no question of influencing any witness or tampering with the evidence. 8.1. It has also been submitted on behalf of the accused-petitioners that the investigation in relation to the crime is complete in all respects since a charge sheet has already been submitted. Therefore, there is no question of influencing any witness or tampering with the evidence. Moreover, the accused-petitioners are local persons and they are permanent residents of the addresses, mentioned in the application. Learned senior counsel for the accused-petitioners has also submitted that there are no criminal antecedents of the accused-petitioners. Highlighting the said aspects, the prime contention that has been urged is long incarceration of the accused-petitioners for 8 [eight] months since 19.04.2022. It is also his submission that prima facie the deceased had died as a result of drowning and thus, the death of the deceased cannot be made relatable to the alleged assault sought to be attributed to the accused-petitioners by the prosecution. 9. Opposing the prayer for bail of the accused-petitioners, Mr. Sharma, learned Additional Public Prosecutor has referred extensively to the statements of the witnesses recorded under Section 161, CrPC and other materials on record. He has also referred to the deposition of 12 [twelve] nos. of prosecution witnesses, who have been examined during the ensuing trial of Sessions Case no. 160/2020. It is his submission that the prosecution case is based on both direct evidence and circumstantial evidence. One part of the incident leading to the death of the deceased are based on direct evidence whereas the other part of the incident are based on circumstantial evidence. The release of the accused-petitioners at this stage of the trial has the possibility of effecting a free and fair trial. 10. I have considered the submission of the learned counsel for the parties and have also perused the materials available in the case record of Sessions Case no. 160/2020 and the concerned case diary. 11. From the materials in the case record, it has emerged that when Rubul Hoque Choudhury [the deceased] and Ramela Khatun were at the bank of the river Brahmaputra near Bandali Reserve Forest, the accused persons came to the place and apprehended both of them. After restraining both of them, they were physically assaulted. 160/2020 and the concerned case diary. 11. From the materials in the case record, it has emerged that when Rubul Hoque Choudhury [the deceased] and Ramela Khatun were at the bank of the river Brahmaputra near Bandali Reserve Forest, the accused persons came to the place and apprehended both of them. After restraining both of them, they were physically assaulted. When the news about restraining Rubul Hoque Choudhury [the deceased] and the girl at the river bank came to the knowledge to the inhabitants of the nearby localities, the inhabitants of the nearby localities gathered at the place and asked the accused persons who kept Rubul Hoque Choudhury [the deceased] and the girl with them, as to why they were restrained. Then the accused persons had asked the crowd, who gathered at the place, to disperse and leave the place as they would hold bichar of Rubul Hoque Choudhury [the deceased] and the girl. Having been asked by the accused persons to leave the place, the inhabitants of the nearby localities left the place leaving Rubul Hoque Choudhury [the deceased] and the girl in the company of the accused persons. The materials further go to indicate that one of the accused persons, Lal Mamud Khan @ Mamud made phone calls to the accused persons and asked them to demand a ransom of Rs. 3,00,000/- from Rubul Hoque Choudhury [the deceased] with further threat that in the event the said ransom amount was not paid, he would be thrown at the river. The family members of the girl was thereafter informed over phone by one of the accused persons stating that the girl was caught with a boy while they were committing bad act at the river side. The accused persons had also called one of the relatives of the other girl who accompanied Ramela Khatun stating that the other girl accompanied Ramela Khatun. Then the relatives of the two girls came to the place of occurrence and the girls were handed over to their relatives so as to take them to their respective houses. But the accused persons had kept Rubul Hoque Choudhury [the deceased] in their custody by informing to the relatives of the two girls that Rubul Hoque Choudhury [the deceased] would be handed over to his guardian in due course after holding bichar. But the accused persons had kept Rubul Hoque Choudhury [the deceased] in their custody by informing to the relatives of the two girls that Rubul Hoque Choudhury [the deceased] would be handed over to his guardian in due course after holding bichar. The keys of the motor-cycle of Rubul Hoque Choudhury [the deceased] was kept also in their possession. The materials indicate that the relatives of the two girls requested the accused persons to allow Rubul Hoque Choudhury [the deceased] also to go with them, but the accused persons refused to do so. Calls were made by the accused persons to a relative of Rubul Hoque Choudhury [the deceased] to come to the river side. The materials further go to indicate that there were discussions among the accused persons that there was no possibility to receive the demanded ransom from the family of Rubul Hoque Choudhury [the deceased] and one of them instructed the other accused persons to kill Rubul Hoque Choudhury [the deceased] and throw his body at the river. When news about restraining Rubul Hoque Choudhury [the deceased] spread in the nearby localities, the people from the nearby localities started inquiring about the same from the accused persons. Then, the accused persons had informed the others that Rubul Hoque Choudhury [the deceased] had dived into the river Brahmaputra to commit suicide. One of the them had also tried to divert the fact of missing of Rubul Hoque Choudhury [the deceased] by stating to police that Rubul Hoque Choudhury [the deceased] boarded a boat and left for his house. 12. As has been mentioned above, the prosecution side has enlisted 33 [thirty three] nos. of persons as prosecution witnesses in the charge sheet through whom it has intended to bring home the charges against the accused-petitioners. Out of the 33 [thirty three] nos. of proposed prosecution witnesses, 5 [five] of them are official witnesses. The rest are mostly inhabitants of the localities where the alleged incident had occurred and there witnesses are familiar with the families of the deceased, the girls who were with the deceased and the accused-petitioners. Out of the 33 [thirty three] nos. of proposed prosecution witnesses, 5 [five] of them are official witnesses. The rest are mostly inhabitants of the localities where the alleged incident had occurred and there witnesses are familiar with the families of the deceased, the girls who were with the deceased and the accused-petitioners. On perusal of the statements of the witnesses, recorded under Section 161, CrPC and Section 164, CrPC, it can be noticed that some of the witnesses had witnessed the events till the time the accused persons had asked the people from the nearly localities, who gathered at the place of occurrence having learnt that the accused persons kept Rubul Hoque Choudhury [the deceased] and the girl in their custody, to disperse and leave the place. The other witnesses in their statements have stated about chain of events, which occurred subsequent to the period when the two girls were taken to their respective houses by their relatives. All the witnesses other than the official witnesses, are inhabitants of the nearby localities and who know the families of the deceased, the girls who were with the deceased at the relevant time and the accused persons. 13. It is well settled that the matters to be considered in an application for bail are [i] whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; [ii] nature and gravity of the charge; [iii] severity of the punishment in the event of conviction; [iv] danger of the accused absconding or fleeing, if released on bail; [v] character, behavior, means, position and standing of the accused; [vi] likelihood of the offence being repeated; [vii] reasonable apprehension of the witnesses being tampered with; and [viii] danger, of course, of justice being thwarted by grant of bail. The overriding considerations in granting bail are the nature and gravity of the circumstances in which the offence was committed; and the position and status of the accused with reference to the victim and the witnesses. 14. In so far as the submission as regards the death of the deceased prima facie due to drowning is concerned, the inquest on the dead body by the Executive Magistrate preceded the Inquest Report and thereafter, the Post- Mortem Examination [PME] on the body of the deceased was carried out on 18.04.2022 at the Fakhruddin Ali Ahmed Medical College & Hospital [FAAMC&H], Barpeta. As per the PME Report, the death was due to coma resulting from head injury. It has further reported about fractures in cervical bones [C2 & C3] and multiple contusions. All the injuries are found to be ante-mortem in nature and caused by blunt impact. The PME Report has further recorded that the approximate time since death was 36-48 hours. While not expressing any opinion on the merits of the case, the Inquest Report and the Post-Mortem Examination Report when considered in their entirety, it cannot be said in an outright manner that the death of the deceased was due to drowning as the facts emerging from the said two reports are prima facie suggestive of the fact that the deceased was murdered. 15. Since prolonged period of the accused-petitioners’ custody has been urged as prime factor to be considered for their release on bail, it is appropriate to refer to few of the decisions of the Hon’ble Supreme Court of India rendered on the aspect of period of custody. In Anil Kumar Yadav vs. State [NCT of Delhi] and another; [2018] 12 SCC 129, the Hon’ble Supreme Court of India has observed that in crimes like murder, the mere fact that accused is in custody for more than one year, may not be a relevant consideration. In Gobarbhai Naranbhai Singala vs. State of Gujarat; [2008] 3 SCC 775, it is observed that the period of incarceration by itself would not entitle the accused to be enlarged on bail. It has been observed in Ash Mohammad vs. Shiv Raj Singh @ Lalla Babu and another; [2012] 9 SCC 446, that though the period of custody is a relevant factor, the same has be weighed simultaneously with the totality of the circumstances and the criminal antecedents and these factors are to be weighed in the scale of collective cry and desire and societal concern has to be kept in view in juxtaposition to individual liberty. In Brijmani Devi vs. Pappu Kumar; [2022] 4 SCC 497, the Hon’ble Supreme Court of India has observed that liberty of an individual is an invaluable right but at the same time while considering an application for bail, the Courts cannot lose sight of the serious nature of accusations against an accused and the facts that have a bearing in the case, particularly when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie satisfaction. It has been observed in Panchanan Mishra vs. Digambar Mishra; [2005] 3 SCC 143, that once a person is released on bail in criminal cases where the punishment is quiet stringent and deterrent, the accused in order to get away from the clutches of the same indulged in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation. The prime consideration is to protect a free and fair trial and to ensure that justice is done. This may happen only if the witnesses are able to depose without fear, freely and truthfully. 16. It is true that the accused-petitioners are in custody as undertrials only, not yet convicted, and their personal liberty is also relevant. But it is equally true to the Court in the matter of granting or refusing bail is also obligated to consider the impact of their release on bail on the prosecution witnesses and also the impact on the society. It is to be ensured that during trial, the material witnesses should be in a position to depose without fear and justice being done to the society. A balance has to be struck by taking into consideration all the above factors. The Hon’ble Supreme Court of India in Criminal Appeal no. 342 & 343 of 2022 [Kamla Devi vs. State of Rajasthan and another] decided on 11.03.2022, has emphasized that there cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. 342 & 343 of 2022 [Kamla Devi vs. State of Rajasthan and another] decided on 11.03.2022, has emphasized that there cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt which would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused. 17. Though Mr. Choudhury, learned senior counsel for the accused-petitioners and Mr. Sharma, learned Additional Public Prosecutor has extensively referred to the evidence of the prosecution witnesses [PWs] so far examined, to make contrary submissions that the depositions of those prosecution witnesses [PWs] go to support their respective cases, this Court is of the considered view that the Court should refrain from making a detailed analysis of such depositions, at this stage of the ensuing trial, so as to give any findings, be it a tentative one, about them as the same might have propensity to affect the outcome of the ensuing trial in any manner. But, at the same time, this Court after perusal of the depositions of the prosecution witnesses, is not persuaded to agree with the submissions of the learned senior counsel for the accused-petitioners that the depositions of the witnesses do not contain any inculpatory statements is so far as the accused-petitioners are concerned. 18. As have been noted herein above, many of the remaining proposed prosecution witnesses [PWs] are known to the families of the deceased, the girls who were at the place of occurrence with the deceased at the relevant point of time and also of the accused-petitioners as well. 19. 18. As have been noted herein above, many of the remaining proposed prosecution witnesses [PWs] are known to the families of the deceased, the girls who were at the place of occurrence with the deceased at the relevant point of time and also of the accused-petitioners as well. 19. Having considered all the materials on record, this Court is not inclined to hold that the prosecution has not established a prima facie case as regards the death of the deceased as a result of murder and as regards the involvement of the accused-petitioners qua the death of the deceased. Taking all the above fact situation obtaining in the case in hand, I am of the considered view that in so far as the prayer for bail of the accused-petitioners, at the present stage of the ensuing trial, are concerned, the interest of fair and free trial will be best served so as to allow the vital prosecution witnesses to depose in the ensuing trial without any kind of threat perception to them and without any possibility of them being influenced or coerced in any manner, with the accused-petitioners on bail. In such view of the matter, I am not persuaded and inclined to allow the prayers for bail of the accused-petitioners at this stage of the ensuing trial. Consequently, the prayers for bail of the accused-petitioners are rejected at this stage of the trial. 20. It is made clear that the observations made above are only in respect of consideration of the present accused-petitioner’s prayer for bail and they shall not have any bearing in the ensuing trial.