Calcutta High Court (Appellete Side)
An Application Under Section 389 Of The ... vs In Re: Piyarul Sk on 24 August, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 24.08.2017
sm Rejected CRAN 4807 of 2016 In CRA 610 of 2016 In the matter of: An application under Section 389 of the Code of Criminal Procedure, 1973 And In re: Piyarul Sk. ... Appellant (In Jail) Mr.Kallol Mondal Mr.Diptendu Bondypadhyay ... for the appellant Mr.Sudip Ghosh ... for the State.
In a sessions trial, the appellant was convicted under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine with default clause.
The order of conviction and sentence has been challenged in this criminal appeal and after the appeal being admitted and with the leave granted by the court admitting the appeal, he has now approached this court for suspension of sentence.
At the very outset, the learned advocate appearing on behalf of the appellant draws our attention to the statements of four (4) witnesses, namely PWs 2, 3, 4 and 5, who are the villagers and vehemently contends that according to those witnesses, the victim caught fire accidentally, while cooking, and one of the witnesses claimed that at the time of occurrence, the appellant was in his shop and not present at house..
He then submits that none of those witnesses was declared hostile. Therefore, their evidence can very well be utilized by the defence to support the innocence of the appellant. He further submits that only the witness, PW /17, who happens to be the son of the victim, alleged that the victim was set on fire by his 2 father. He then vehemently contends that this child-witness was not only a baby at the time of occurrence, moreover he was examined during the trial invoking section 311 of the Code of Criminal Procedure by the concerned court and this witness is not at all believable.
On the other-hand, the learned advocate appearing on behalf of the State vehemently opposes the prayer for bail and submits that there is no reason to disbelieve PW/17. He further submits that the learned trial court has not committed any mistake in law or in facts by invoking Section 311 CrPC in examining the son of the victim (PW/17), who is a very vital witness and his evidence is very vital to reach to a just decision in the trial. He further submits that the defence never challenged the decision of the trial court to examine the PW/17 invoking Section 311 CrPC and therefore, they must not be allowed to complain against such examination. He lastly adds, when the evidence of PW/17 was recorder in accordance with law, same cannot be excluded from consideration on the mere allegation of his examination at a belated stage.
He then adds that now the only question left for decision, whether the child is to be believed or disbelieved. He then draws our attention to the statements of the child-witness and submits that not only he disclosed to the police that this appellant set fire on her mother, but also disclosed that both the appellant and his grand-mother told him that if this fact disclosed, then there will be a case against the appellant.
He further submits that PW/3, who supported the case of the appellant with regard to the question of plea of alibi and claimed that at the time of occurrence, the appellant was sitting at his tea-stall, was disbelieved by the learned trial court as also the story of accident has been completely discarded by the learned trial court by assigning sufficient reasons and also draws our attention to the findings of the trial court.
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Now, having heard the counsel for the parties and considering their respective submissions and the evidence on record and more particularly that of the PW/17, the son of the victim, whose presence at the place of occurrence, cannot be doubted and considering the nature and seriousness of the allegation, in our opinion, this is not a fit case for suspension of sentence and this application stands rejected and CRAN No.4807 of 2016 stands disposed of.
The office is directed to immediately call for the Lower Court Record, if not as yet called for. If the record is already there, then the paper book shall be prepared within three (3) months from the date of arrival of the record and as soon as the preparation of the paper book is complete and the appeal is made ready for hearing, the same shall be listed before the appropriate Bench taking appeal relating to crime against women, as and when the business of such court shall permit.
The learned advocate for the appellant shall have the liberty to mention the matter for early hearing.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Ashim Kumar Roy, J.) (Amitabha Chatterjee, J.)