Calcutta High Court (Appellete Side)
Tinku Mahar vs Unknown on 29 August, 2016
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 84. 29.08.2016
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ap C.R.A. 434 of 2016 In the matter of: Tinku Mahar. ... Appellant.
Mr. Kunal Ganguly. ... for the Appellant.
Mr. Ashis Das. .... for the State
In a sessions trial, the appellant was convicted under Section 302 IPC and sentenced to suffer R.I. for life and to pay fine with default clause.
Against such order of conviction and sentence, a statutory appeal has been preferred by the appellant which has already been admitted. Now, with the liberty granted by this court admitting the appeal, the appellant has approached this court for suspension of sentence.
Heard the learned Advocates appearing for the respective parties. Perused the impugned judgment, the copies of the depositions of the witnesses produced by the counsel of the appellant and other materials on record.
This is a case based entirely on circumstantial evidence. The victim is the brother-in-law of the appellant. The first circumstance against the appellant is that his extra judicial confession made to his wife, PW/1.
2We find from the cross-examination of the PW/1 that some litigations were pending between the husband and the wife. Apart from that, we also find that on the next date of the incident the dead body was discovered, however, the post mortem Doctor found the same in a decomposed state.
Since having regard to the submission of the learned counsel of the appellant, we found a case showing possibilities of success in the appeal has been made out, accordingly, in the light of the decision of the Hon'ble Apex Court in the case of Atul Tripathi vs. State of U.P., reported in (2014) 9 SCC 177, and in terms of the proviso to sub-section (1) of section 389 CrPC, we granted an opportunity to the learned counsel for the State to file show-cause in support of his objection against the release of the appellant on bail. However, the learned counsel for the State chooses to rely on the available records and submits that it would be sufficient for her to resist this application.
Now, considering the findings on which the impugned order of conviction is based and the ground on which the same is under challenge, we are of the opinion that a prima facie case has been made out showing the possibilities of success in the appeal. This application for suspension of sentence is allowed.
Accordingly, we direct pending hearing of the appeal, the order of execution of sentence shall remain suspended and the appellant 3 shall be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Murshidabad on a bond of Rs.10,000/- with two sureties of Rs.5,000/- each, one of whom must be local.
It goes without saying whatsoever we have observed hereinabove must not be construed as to our opinion on the merits of the case and we make it clear such observation was called for due to the various points raised by the learned counsel for the appellant. We further make it clear that this observation shall have no bearing on the final hearing of the appeal.
Having regard to the fact that already records have been received, we direct the Department to prepare the requisite number of paper books within six months from this date and as soon as the preparation of the paper books is complete and the appeal is made ready for hearing, the same shall be listed for hearing before the appropriate bench.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of necessary formalities.
(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.) 4