Calcutta High Court (Appellete Side)
Mariyam Begam & Anr vs The State Of West Bengal on 12 February, 2020
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
CRAN 4951 of 2019
in
CRA 681 of 2019
Mariyam Begam & Anr.
-Vs.-
The State of West Bengal
With
CRAN 5017 of 2019
Mahidur Alam
-Vs.-
The State of West Bengal
Before: The Hon'ble The Chief Justice Thottathil B. Radhakrishnan
&
The Hon'ble Justice Arijit Banerjee
For the applicants : Mr. Milon Mukherjee, Sr. Adv.
(CRAN 4951 of 2019) Mr. Dattatreya Dutta, Adv.
(CRAN 5017 of 2019)
For the State : Mr. Saibal Bapuli, Ld. APP
(CRAN 4951 of 2019) Mr. Bibaswan Bhattacharya, Adv.
For the State : Mr. Madhu Sudan Sur, Ld. APP
(CRAN 5017 of 2019) Mr. Manoranjan Mahata, Adv.
Heard On : 10.02.2020
CAV on : 10.02.2020
Judgment On : 12.02.2020
Arijit Banerjee, J.:-
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1.These two applications have been filed for suspension of sentence and grant of bail by persons who stand convicted under Sections 302, 201 and 120B of the Indian Penal Code (in short 'IPC') and sentenced to life imprisonment and also to pay fine by the Additional District and Sessions Judge, Fast Track Court - II - Raiganj in Sessions Trial No.40/2014 arising out of Sessions Case No.264/2008. CRAN 4951/2019 is an application by the mother-in-law and sister-in-law (husband's sister) of the victim lady. CRAN 5017/2019 is an application by the victim's husband.
2. The brief facts of the case as would appear from the written complaint, the prosecution evidence and the findings of the Learned Trial Judge are that the 1st accused (husband of the victim) and the victim were married in 2004. After marriage, the victim went to the matrimonial house and resided there for two months. The 1st accused, thereafter, took her to a rented accommodation at Raiganj and resided there with the victim. On September 23, 2005, the 1st accused informed his father-in-law at about 10 a.m. that Sabina (victim) had left the matrimonial home at 8:30 a.m. to go to her parental house. He enquired as to whether Sabina had reached the parental house. On September 24, 2005 a diary was lodged by the 1st accused with the Raiganj Police Station that his wife had gone missing. On September 24, 2005 i.e. the same day, police seized one polythene bag containing one severed head of a lady. Other parts of a female human body were 3 recovered on 26th September and 27th September, 2005. The forensic examination report confirmed that all the parts belong to the same body. The lady was identified as the victim from photographs. Pursuant to investigation, charges were framed against the 1st accused, his mother (2nd accused) and his sister (3rd accused) under Sections 302/120B/201/34 IPC.
3. The prosecution examined 34 witnesses. The defence examined none. The Learned Trial Judge noted that there were no eye witnesses or direct evidence and convicted the accused person on the basis of circumstantial evidence. The Learned Trial Judge observed that the chain of circumstances is so complete that the same indubitably points towards the commission of the victim's murder by the accused persons.
4. We have heard learned Counsel for the applicants as also learned Counsel for the State. We have considered the legal evidence on record and assimilation of evidence by the Learned Trial Judge. It is, prima facie, seen from the judgment under appeal that the Learned Trial Judge recorded that the in-laws (2nd and 3rd accused persons) of the victim used to inflict mental and physical torture upon her. They used to put pressure on the victim to get landed property transferred from her father and that the factum of torture and demand were narrated by the victim to her family members and relatives whenever she visited her parental house. However, we find that no charge was framed under Section 498A IPC. Prima facie, there is nothing in the 4 prosecution evidence that would indicate involvement of the 2nd and 3rd accused persons in the commission of offences they were charged with. Undisputedly those two accused persons lived separately from the victim. It is nobody's case that on or about the date of occurrence those two accused persons were at the place of occurrence or in its vicinity.
5. On an overall assessment of the evidence on record we are satisfied that the 2nd and 3rd accused persons have made out a case for suspension of sentence and grant of bail.
6. As regards the 1st accused person being the applicant in CRAN 5017/2019, again, there is no direct evidence against him. The Learned Trial Judge has convicted him purely on the basis of circumstantial evidence. However, on an analysis of the legal evidence on record, we are, prima facie, satisfied that the chain of circumstances is not so complete that conviction of the 1st accused person could be based thereon. For one thing, although it is stated in evidence that the murder weapon was recovered from a showcase in the house of 1st accused person, the same was not produced or exhibited in Court. Around 10 doctors conducted post mortem on severed parts of the victim's body. None of the doctors were examined in Court by the prosecution. One of the observations of the Learned Trial Judge is that the 1st accused person was suspicious of the chastity of his wife and suspected that she was having illicit affair with some other person and on that ground there were frequent 5 quarrels between the husband and wife. From this alone, one cannot infer that the 1st accused killed his wife. In our prima facie view, the quality of evidence brought on record by the prosecution is not such as would persuade us to hold, at this stage, that the 1st accused does not have any arguable case for acquittal at the hearing of the appeal.
7. This apart, all the accused persons have been on bail all along till they were taken into custody with the pronouncement of the sentence after passing of the order of conviction. Thus, they have been on bail since 2005, i.e., for the last fifteen years. It is nobody's case that they have jumped bail at any point of time, misused or abused bail in any manner or have breached any condition of bail.
8. In view of the aforesaid we are of the opinion that this is a fit case where the applicants are entitled to an order of suspension of sentence and grant of bail. However, we clarify that the observations made in this order are, prima facie and only for the purpose of disposing of this interlocutory application for suspension of sentence and grant of bail pending disposal of the appeal. The observations made herein shall have no bearing at the final hearing of the appeal.
9. In the result, these applications succeed. The sentence of imprisonment and fine imposed on the applicants by the Learned Trial Court will stand suspended. The applicants shall be released on bail on furnishing bail bond of Rs.10,000/- each, with two sureties of like amount each, one of whom must be local, to the satisfaction of the 6 Convicting Court and on further condition that the applicants shall meet the Officer-in-Charge of the concerned police station once a month between 1st and 5th starting from March, 2020 and further that they shall be personally present or shall be represented before the Court when the appeal is taken up for hearing.
10. The applications being CRAN 4951 of 2019 and CRAN 5017 of 2019 are accordingly disposed of.
11. Criminal Section is directed supply urgent Photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.
12. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.
(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)