Calcutta High Court (Appellete Side)
An Application Under Section 389 Of The ... vs In Re: Piyarul Sk on 10 August, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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10.08.2017
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. He vehemently contends that according to those witnesses, the victim caught fire due to accidental burn, while cooking, and one of the witnesses claimed that at the time of occurrence, the appellant was in his shop.
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. He further submits that only the witness, PW 17, who happens to be the child of the victim, only alleged that the victim was set on fire by his father. He 2 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 by invoking section 311 of the Code of Criminal Procedure and may be a further arguable as offered, because law does not prohibit the same. He further submits that if the appellant at all aggrieved by the said order, he could have challenged the same at that stage. Now, after his evidence is recorded, there is no scope for the appellant to challenge the same in this appeal.
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, who set his mother on fire, but also disclosed that both the appellant and his grand-mother told him that if this fact discloses, 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, has been disbelieved by the learned trial court. He also submits that the story of accidental burn has been completely discarded by the learned trial court.
Considering the nature of burn injury sustained by the victim, he then draws our attention to the evidence of PW 17, child-witness, and submits that it is his category evidence that this appellant, who lit fire on the body of the victim. 3
Now, considering the nature and seriousness of the allegation and the materials on record, in our opinion, this is not a fit case for suspension of sentence.
Accordingly, this application, being CRAN 4807 of 2016, stands rejected. 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.) 20 10.08.2017 sm Rejected CRM No.7698 of 2017 4 In the matter of an application for bail under Section 439 of the Code of Criminal Procedure filed on 01.08.2017 in connection with Mahishadal Police Station Case No.174 of 2017 dated 03.06.2017 under sections 498A/326/307/34 of the Indian Penal Code added with sections 304B/306 of the Indian Penal Code and section 4 of the Dowry Prohibition Act.
And In Re:- Archana Bera & Anr. ... Petitioners (In jail) Mr.Amal Krishna Samanta... for the petitioners Mr.Binay Panda ... for the State.
Leave is granted to correct the cause title of this application. Heard the learned advocates appearing on behalf of the parties. Perused the case diary.
The petitioners are the parents-in-law of the deceased housewife and they are in custody for 67 days. Investigation is still continuing.
Opposing the prayer for bail, the learned advocate for the State draws our attention to the dying declaration of the victim housewife, which is at page 3 of the case diary.
According to such statement, it is the petitioners, who poured kerosene oil on her persons and her husband lit the match.
Now, considering the nature and seriousness of the allegation and the gravity of the offences, in our opinion, this is not a fit case for bail.
Accordingly, this application for bail stands rejected.
(Ashim Kumar Roy, J.) (Amitabha Chatterjee, J.) 5