Calcutta High Court (Appellete Side)
An Application Under Section 389(1) Of ... vs Unknown on 18 January, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 77 18.01.2017
sm Allowed CRAN 1735 of 2015 With CRA No.287 of 2015 In the matter of: An application under Section 389(1) of the Code of Criminal Procedure, 1973.
In Re:- Samad Sk. & Ors. .. Appellants.
Mr.Rajdeep Majumder Mr.Moyukh Mukherjee .. for the appellants.
Mr.N.Ahmed. .. for the State.
In a sessions trial, first five (5) appellants were convicted under sections 302/34 IPC, while the appellant no.6 was convicted under sections 302/120B IPC and each of them was sentenced to suffer imprisonment for life and to pay fine with default clause.
Challenging the said order of conviction and sentence, this appeal has been preferred and after the appeal being admitted with liberty granted by the court admitting the appeal, now the appellants have approached this court for suspension of sentence.
Now, going through the same, we find that this case is essentially based on dying declarations of the victim. Three (3) such dying declarations were recorded by her before her attending 2 doctor, while the rest is an oral dying declaration made before her neighbours, PW 2 and PW 3.
Having regard to the fact, the learned advocate for the State, opposes the prayer for suspension of sentence. We have given him an opportunity to file written objection in the light of the decision of Atul Tripathi vs. State of UP, reported in (2014) 4 SCC 177.
However, he declined to file the same and submits that it would be enough for her to argue this case on the basis of the materials already on record.
Now, considering the rival submissions of the parties and the findings on which the order of conviction is based and the ground on which the same is under challenge, we are of the view that a prima facie case has been made out showing possibility of success in the appeal.
So far as the appellant nos. 3, 4, 5 and 6 (Manoara Khan, Felu Khan @ Rohim Buxo Khan, Asan Sk. and Kamaluddin Sk.) are concerned, their prayer for suspension of sentence stands allowed. Such prayer in respect of the appellant nos.1 and 2 (Samad Sk. and Rosula Bibi) stands rejected.
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It be noted that in all the recorded dying declarations, the appellant no.1 and 2 (Samad Sk. and Rosula Bibi) were implicated for pouring kerosene oil on her person and setting her on fire.
During the pendency of hearing of appeal, the order of execution of sentence be suspended and the appellant nos. 3, 4, 5 and 6 (Manoara Khan, Felu Khan @ Rohim Buxo Khan, Asan Sk. and Kamaluddin Sk.) be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Nadia upon furnishing a Bond of Rs.10,000/- each, with two sureties of Rs.5,000/- each, one of whom must be local.
Since the preparation of the paper book is complete and the appeal is ready for hearing, the office is directed to take steps in placing this matter before the appropriate Bench for final hearing, as and when the business of such court shall permit.
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.
Accordingly, this application, being CRAN 1735 of 2015, stands disposed of.
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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.) (Debi Prosad Dey, J.)