Calcutta High Court (Appellete Side)
Present : Hon'Ble Justice Dipankar ... vs Hon'Ble Justice Rajarshi Bharadwaj on 20 September, 2018
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Rajarshi Bharadwaj
CRAN 1168 of 2018
in
CRA 50 of 2018
In Re : An application under section 389 of the Code of Criminal Procedure.
And
In Re : Anupam Ghosh ..........Appellant/petitioner.
Mr. Sekhar Basu,
Mr. Milan Mukherjee,
Mr. Amal Krishna Samanta,
Mr. Arijit Dey.
..........For the Appellant/petitioner.
Mr. Madhusudan Sur,
Mr. Rudradipta Nandi.
...........For the State.
Mr. Abhijit Adhya.
...........For the de-facto Complainant.
Hearing Concluded on : August 29, 2018
Judgment on : September 20, 2018
RAJARSHI BHARADWAJ, J.
CRAN 1168 of 2018 is an application for suspension of sentence at the instance of the appellant, who has been sentenced to imprisonment for life for commission of offence punishable under Section 302, IPC.
It is submitted by the learned senior counsel appearing on behalf of the appellant that the victim had committed suicide and such event is corroborated by the post mortem report of the doctor (P.W. 15) along with his deposition before the Court. It is further submitted that the prosecution sought to drive home the charge against the appellant based on circumstantial evidence but the chain of circumstances snapped as a result whereof no reasonable person would arrive at the conclusion that the offence has been proved. Several witnesses for the prosecution including P.W. 12 did not support the prosecution case, yet, was not declared hostile and, therefore, the findings returned suffer from perversity. It is also submitted that the appellant was on bail during trial for about 14 years and did not misuse his liberty in any manner whatsoever.
Learned Additional Public Prosecutor appearing for the State opposes the prayer for bail. He first submits that the appellant secured bail two years after his arrest. Secondly, he has invited our attention to the injury sustained by the victim on the vertex as well as vomiting signs with is suggestive of the victim having been struck on the head. Thirdly, reference has been made to examination of the appellant under Section 313, Criminal Procedure Code and particularly question no. 15 in respect of the evidence of P.W. 17, when the appellant maintained silence. Finally, certain photographs which were clicked at the time of inquest were placed before us in support of the contention that it was homicide and not suicide. He, therefore, submits that the finding of homicidal death is correct and without doubt, the appellant had committed the criminal act for which he has rightly been punished.
Learned counsel appearing for the de facto complainant submits that although the burden of proof is on the prosecution, the victim having been found dead in the privacy of the appellant's residence, it was within his personal knowledge how she died and the appellant having failed to give any cogent explanation regarding the death of his wife, such circumstance can be treated as an additional link in the chain of circumstances.
We have perused the materials in the lower court records and considered the rival submissions made on behalf of the parties.
The appellant and the victim were related as husband and wife. There is evidence that there was a quarrel in the preceding evening between them. Looking at the photographs of the victim taken at the time of inquest, which were exhibits, we rule out suicidal death of the victim. The plea that the appellant was not at the house at night is within his special knowledge and was required to be probabilised by leading evidence in course of the trial. No explanation is forthcoming from the appellant how his wife suffered homicidal death in the house at night and/or how ecchymosis were found in the deeper surface of the scalp of the victim.
Based on such prima facie views, we are not inclined to suspend the sentence of the appellant in the facts of the case. The application being CRAN 1168 of 2018 is rejected.
As the lower court records have arrived, paper books must be prepared within two months and as soon as preparation of the paper books is complete and the appeal made ready for hearing, the same shall be listed before the appropriate bench.
Urgent photosat certified copy of this order, if applied for, be handed over to the learned counsel for the parties on their usual undertaking.
(RAJARSHI BHARADWAJ, J.) DIPANKAR DATTA, J. ;
I agree.
(DIPANKAR DATTA, J.)