Calcutta High Court (Appellete Side)
Asharat Sk. @ Hafizul @ Hafiz vs In Re:- Md.Ilyash & Anr on 7 March, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 45 07.03.2017
sm Rejected CRAN 2492 of 2016 With CRA 313 of 2016 In re: An application under Section 389 of the Code of Criminal Procedure, 1973 filed on 27.06.2016.
And In the matter of:- Asharat Sk. @ Hafizul @ Hafiz. .. Appellant. Mr.Debasish Roy, Mr.Bitasok Banerjee. ... for the appellant.
Mr.Subir Banerjee. .. for the State.
In a sessions trial, total four (4) persons were charged for committing offence under sections 341/396/397 of the Indian Penal Code. Finally, the present appellant was convicted and sentenced to undergo rigorous imprisonment for ten (10) years and eight (8) years respectively and to pay fine with default clause, whereas the co-accuseds were acquitted.
The said order of conviction is challenged in this appeal and after the appeal being admitted with leave granted by the court admitting the appeal, the appellant has approached this court for suspension of sentence and an order of his release on bail.
The learned advocate for the appellant vehemently contends that on the very next day of arrest of the appellant, he was placed in 2 the TI Parade and allegedly identified and a copy of the recovery memo was not exhibited during the trial.
He then draws our attention to the evidences of PW 18 and 20 and points out that, according to the said witnesses, the appellant was shown to them and PW 9 the only witness, who identified him in the TI Parade and in the court. He lastly submits that 313 was not conducted by the learned Judge.
On the other-hand, the learned advocate appearing for the State vehemently opposes the prayer for suspension of sentence and submits that this is a case, where robbery committed in the road and one person was killed and another was injured. The injured witness is PW 9 and he identified the appellant both in the TI Parade as also in the court.
He further submits that there is no bar in holding the TI Parade on the very next day of the arrest of the accused and there is nothing wrong. He also submits that PW 9 was suggested that the accused was before hand shown to him at the police station. However, he denied the fact. He was never cross-examined on the point what was stated by PWs 18 and 20.
He further submits that the stolen articles were also recovered from the possession of the appellant. Then he contends that the result of examination of 313 was recorded in the prescribed 3 form and the alleged recording under the bottom portion of the examination of the accused under section 313 CrPC.
The learned advocate for the appellant submits that the accused was not examined under section 313 CrPC by the learned trial Judge himself, rather the endorsement goes to show that it was merely done in his presence.
The learned advocate for the State submits that such endorsement in form for examination under section 313 CrPC cannot be taken to mean that the examination was not done by the learned trial Judge himself and it was merely done in his presence, because it goes to show that the examination is also done by the Presiding Officer of the court and such examination is also interpreted by him in language understood by the accused and in the present case, it appears that the learned trial Judge interpreted the same in Bengali.
The learned advocate for the State finally insisted us to issue rule for enhancement of the sentence considering the gravity of the offence.
Heard the learned advocates appearing on behalf of both the parties. Considered their respective submissions. Perused the impugned judgement and the depositions of the witnesses. A copy whereof has been handed over to us by the learned advocate for the appellant.
4
This is a case, where robbery committed in a road and one person was killed. The injured witness, who was accompanied the victim, has identified the appellant in the TI Parade and in the court and the stolen articles were also recovered from his possession.
The lacuna, which has been pointed out to us by the learned advocate for the appellant, is not convincing. Accordingly, this application for suspension of sentence, being CRAN 2492 of 2016, stands rejected.
We agree with the learned advocate for the State that this is a fit case, where the enhancement rule should be issued, because not only that robbery was committed, but one person was killed in course of such crime.
We, therefore, direct that a notice be served upon the appellant to show-cause as to why his sentence shall not be enhanced. The said notice be served upon him through the court of the learned Additional Chief Judicial Magistrate, Birbhum at Rampurhat and the question of enhancement will be considered at the time of final hearing of this appeal.
Office is directed to call for the lower court records, if not as yet called for. If the record is already there, the requisite number of paper books shall be prepared within six (6) months from this date or then four (4) months from the date of arrival of the records and 5 immediately after the preparation of the paper books is complete and the appeal is made ready for hearing, the same shall be listed before the appropriate Bench for hearing.
We make it clear that any of the observations made hereinabove must not be construed as to our opinion regarding the merit of the case. We make it clear that those observations were made only for the reason that the same were necessary for taking the decision as to the question of bail.
Urgent xerox certified copy of this order, if applied for, be handed over to the learned advocates for the parties on their usual undertakings.
(Ashim Kumar Roy, J.) (Malay Marut Banerjee, J.) 13 07.03.2017 sm Rejected CRM No.1782 of 2017 In the matter of an application for bail under Section 439 of the Code of Criminal Procedure filed on 23.02.2017 in connection with 6 Harishchandrapur Police Station Case No.375 of 2016 dated 07.06.2016 under sections 447/326/307/302/120B of the Indian Penal Code.
And
In Re:- Md.Ilyash & Anr. .. Petitioners.
Mr.Tapan Dutta Gupta ... for the petitioners
Mr.Binoy Panda
Ms.Pushpita Saha ... for the State.
Heard the learned advocates appearing on behalf of the parties. Perused the case diary.
The petitioners are in custody for about 234 days and 224 days respectively. They are the father and son.
The learned advocate for the petitioners vehemently contends that a co-ordinate Bench of this court granted bail to one of the co- accuseds, viz. Abdul Khalek @ Kalu, in connection with CRM No.892 of 2017, and the said co-accused and the petitioner no.2 are standing on same footing.
However, the learned advocate for the State vehemently disputes such contentions and draws our attention to the statement of one of the eyewitnesses to the occurrence recorded under section 164 CrPC and points out that the petitioner no.2 is the son of the petitioner no.1 and in the said statement, it has been categorically alleged that both the father and son assaulted the victim, who succumbed to his injury. Then he draws our attention to the statement of another eyewitness to the occurrence and points out 7 that he corroborates the said eyewitness. Lastly, he points out that the offending weapon as seized from the possession of the petitioner no.2.
Now, having regard to the facts as above, in our opinion, this is not a fit case for bail.
Accordingly, this application for bail stands rejected. We have been informed that although the charge-sheet has been submitted long back, but till date the case has not been committed due to the reason that the accuseds are absconding.
We, therefore, direct the learned Magistrate before whom the case is now pending to split-up the case of the petitioners from that of the absconding accuseds and to commit the case taking recourse to section 309 CrPC and in accordance with law.
(Ashim Kumar Roy, J.) (Debi Prosad Dey, J.)