Calcutta High Court (Appellete Side)
In Re: Anandita Pal (Dey) vs The State Of Uttar Pradesh And Another on 12 August, 2021
CRA No.224 of 2020
with
12.08.21CRAN No.1 of 2020 (P.A.) (Via video conference) Sl.06 Ct.30 In re: Anandita Pal (Dey) ... appellant/petitioner.
Dr. Jyotirmoy Adhikary Ms. Sohini Adhikary ... for the appellant/petitioner.
Mr. Bivas Chatterjee
Ms. Anushree Mondal ... for the State.
Mr. Imtiaz Ahmed
Mr. Sabir Ahmed
Mr. Musharoff Hossain
Mr. Mazhar Hossain Chowdhury
Mr. Md. Zeeshan Uddin
Mr. Satadru Lahiri
Mr. Amar Zaki
Mr. Safdar Azam
Mr. Amrin Khatoon
Mr. Wasym Ahmed
Mr. Jisan Iqbal Hossain
Mr. Abdur Raqib ... for the de facto complainant.
In the present application under Section 389 of the Code of Criminal Procedure (in short, the said Code), the appellant has prayed for suspension of sentence imposed upon her by the learned Additional Sessions Judge, Third Fast Track Court, Barasat, North 24 Parganas in Sessions Case No.117 of 2019. The appellant/petitioner has been convicted of offence punishable under Section 302/201 of the Indian Penal Code.
Dr. Adhikary, learned advocate appearing for the appellant/petitioner submits that the appellant married the deceased, namely, Rajat Kumar Dey on 20 th January, 2016. A male child was born from the said wedlock on 22nd May, 2017. The alleged incident 2 occurred in the intervening night of the 24 th and 25th November, 2018. On the basis of the complaint lodged, Newtown Police Station Case No.505 dated 29th November, 2018 under Sections 302/201/120B of Indian Penal Code was registered. Thirty prosecution witnesses and one defence witness were examined and the impugned judgment was delivered on 14th September, 2020.
He argues that the entire case is based upon circumstantial evidence. Every link in the chain of circumstances necessary to prove the guilt of the accused has not been established by the prosecution beyond reasonable doubt. The circumstances involved do not consistently point towards the guilt of the appellant.
According to him, the learned court below disregarded the defence plea that the death was due to partial hanging though the doctor, being the PW 15 during his cross-examination, in response to the suggestion put by the defence stated that "considering the injuries No.'1' & '11' as mentioned in my P.M report in my opinion if it was hanging it might be a partial hanging". Such opinion is sufficiently corroborated by the doctor, namely, Saibal Gupta, who was examined as DW 1. Homicide could not be specifically established and the evidence on record reveals that the petitioner had been roped in on the basis of mere suspicion and the prosecution had sought to build a 'castle in the air'.
He argues that the material evidence on record prima facie do not disclose any motive. Such absence of motive, in a case depending on circumstantial evidence, weighs in favour of the appellant. In the said conspectus, it cannot be said that the appellant has no chance of success in the present appeal.
Drawing the attention of this court to annexure P9 to the 3 application, Dr. Adhikary submits that the appellant was granted bail by the Hon'ble Supreme Court and the appellant has not misused such liberty. The chance of disposal of the present appeal in the near future is very remote and as such the appellant's sentence may be suspended and she may be enlarged on bail on any stringent condition.
Per contra, Mr. Chatterjee, learned advocate appearing for the State submits that the evidence on record establishes a common unbroken chain of events pointing towards the guilt of the appellant. There is electronic evidence on record which clearly establish the dismal marital relationship between the appellant and the deceased and such evidence clearly establishes the motive.
He argues that there is no patent infirmity in the order of conviction. The appellant has already been found guilty by the learned court below on the basis of the evidence on record and while considering an application for suspension of sentence under Section 389 of the Code, it is not open to reassess and/or re-analyze the same evidence and to take a different view. In support of such contention reliance has been placed upon the judgment delivered in the case of Preet Pal Singh Vs. The State of Uttar Pradesh and Another, reported in (2020) 8 SCC 645.
According to him no weightage can be granted to the testimony of the doctor, namely, Saibal Gupta, inasmuch as such evidence is merely advisory in nature and no doctor can vouch that whatever he has stated is 'all are 100 per cent correct'. The testimony of DW1 cannot be considered in isolation when three other doctors being PW1, PW9 and PW 15 were examined.
There is a difference between grant of bail under Section 439 of the Code in case of pre-trial arrest and suspension of sentence under 4 Section 389 of the Code and grant of bail, post conviction. The effect of bail granted during trial loses significance when on completion of trial, the accused is found guilty. The mere fact that the appellant was granted bail during trial and she did not misuse such liberty cannot per se be a ground for suspension of sentence.
We have assessed the quality of evidence recorded by the learned court below. We do not find any strong and compelling reason to enlarge the appellant on bail at this stage regard being had to the prima facie merits of the appeal, evidence on record and observation of the learned court below. There is also no patent infirmity in the order of conviction. Having regard to the severity of the offence and the strength of the prosecution case, we are of the opinion that this is not a fit case for suspension of sentence and grant of bail to the appellant.
Accordingly, the application being CRAN No.1 of 2020 is dismissed.
All parties shall act on the server copies of this order duly downloaded from the official website of this Court. (Subhasis Dasgupta, J.) (Tapabrata Chakraborty, J.)