Calcutta High Court (Appellete Side)
Rakesh Pandey vs The State Of West Bengal on 11 February, 2020
Author: Arijit Banerjee
Bench: Arijit Banerjee
1 11.02.2020
Item No.10 Ct. No.1 AD & Saswata CRA 360 of 2018 + CRAN 2323 OF 2018 + CRA 687 of 2018 + CRA 688 of 2018 Rakesh Pandey
-vs-
The State of West Bengal Mr. Soumopriyo Chowdhury Mr. Abhishek Gupta Ms. Ishita Roy ... for the appellants Mrs. Kakali Chatterjee ... for the State This is an application for suspension of sentence and grant of bail pending an appeal against conviction and sentence handed down by the Court of sessions for offences found to be punishable under Sections 364A, 302, 120B and 201 of the Indian Penal Code. The appellant/applicant is the first accused out of the three accused persons. We have heard the learned counsel for the applicant and the learned counsel for the prosecution. The prosecution case unfolds to the effect that Subham Chakraborty, a class 3 student went missing on 25.11.2011 from his home after around 7.00 P.M. The investigation on the basis of the complaint of the father of the victim lodged on 2 the very next day led to the discovery of the dead body of the victim from a pond in the neighbourhood of the locality. The Court below found all the three persons guilty of offences charged against them and sentenced all of them to life imprisonment.
In support of this application for suspension of sentence, learned counsel for the applicant argued that the sole basis on which the first accused has been convicted is the so-called extra judicial confession stated to have been made before PW- 1 to PW-8 and such statement as attributed to the first accused does not amount to extra judicial confession. It is argued that there is no requisite corroboration as between the versions of the different witnesses. Hence, the credibility of the testimony of PW-1 to PW-8 on that issue remains shaky. It is further argued that the call details of the mobile phones as relied on by the Court below were on the basis of the unverified call detail records and if at all there is any relevance of the call details it is only about call made by another accused person to one of the neighbours of the father of the victim demanding ransom. It is therefore argued that this is a case where the allegations and the findings against the first applicant and the quality of evidence as against him has to be treated differently from those as against accused 3 person nos. 2 and 3 from whom there were other seizures including an Ambassador car.
Learned counsel for the State making copious reference to the different materials relied upon by the Court of first instance argued for the position that PW-1 to PW-8 were believed and there is a ring of truth in the statements given by them before the Court below and such materials sufficiently establish that the first accused/applicant had made extra judicial confession which is worthy of cognizance in terms of the laws governing that field. She also argued that the quality of findings by the learned sessions Judge is such that there is no stone left unturned in the course of the trial in arriving at the conclusion.
We have given our anxious consideration to the contentions of both sides and are of view that having been roped under Section 120B as well along with Sections 302 and 364A of the IPC, we do not see that there is any clear demarcating element which could be utilized to cull out the participation of the first accused simply for the reason that his extra judicial confession has not been proved in accordance with law. We are, therefore, of the view that this is not a fit case where we could consider the quality of findings and the material evidence on record to take a lenient 4 view and grant bail or to differentiate the case of the first accused applicant from the case as found by the Court below as against accused person nos. 2 and 3. Be that as it may, we notice that during trial and post sentencing, by now the applicant/appellant/first accused has been in custody for more than 8 years. We are, therefore, inclined to take the view that having regard to the ratio and law laid down by the Hon'ble Supreme Court of India in Kashmira Singh -vs- State of Punjab reported in (1977) 4 SCC 291 this is one of those matters where we are unable to envisage that the final hearing of this appeal would happen in the near future. Therefore, on this ground, we are inclined to grant bail to the applicant on strict terms.
In the result, the applicant in CRAN 2323 of 2018, shall be released on bail upon furnishing a bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties of like amount each, one of whom must be a local surety having landed property in the village or town where the applicant resides to the satisfaction of the learned Additional Chief Judicial Magistrate, Barrackpore, on condition that the applicant shall meet the learned Court below and Officer in Charge of the concerned police station once in fifteen days starting from 15th February, 2020, until further orders and he 5 shall be personally present or be represented before this Court when the appeal is taken up for hearing. Let Paper Books be prepared within a period of four weeks from the date of receipt of Lower Court Records. List the appeal as and when the same becomes ready for hearing.
CRAN 2323 of 2018 is accordingly, disposed of. Urgent photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)