Calcutta High Court (Appellete Side)
An Application Under Section 389 Of The ... vs Unknown on 12 January, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1 101 12.01.2017
sm Allowed CRAN 3529 of 2016 With CRA No.512 of 2016 In the matter of: An application under Section 389 of the Code of Criminal Procedure, 1973 for suspension of the Judgement of conviction.
In Re:- Manaranjan Sarkar & Ors. .. Appellants Mr.Siladitya Sanyal Mr.Brajesh Jha Mr.Sujan Chatterjee .. for the appellants.
Mr.Anand Keshri. .. for the State.
In a sessions trial, the appellants were convicted under Sections 302/34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine with default clause.
In addition, the appellant no.3, Chittaranjan Sarkar, was found guilty for committing offence punishable under Section 323 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine with default clause.
Against the said order, the appellants preferred this appeal and after the appeal being admitted and with liberty given to them by the court admitting the appeal, they have moved this application for suspension of sentence.
2Now, going through the impugned judgement, we find that PW 2 is the key witness of the prosecution, being the sole witness to the incident, but during the trial, he was declared hostile. However, the learned Trial Judge acted on his statement recorded during investigation under section 161 CrPC and which was brought on record by way of suggestion put to him by the prosecution and thereby took the same as admissible evidence. Besides that three other witnesses, PW/9, PW/12 and PW/13 were relied upon. They are the Doctors and learned Magistrate, who recorded the 164 statement of the said witness. In this case, the Investigating Officer was also not examined.
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 him to argue this case on the basis of the merit already on record.
Having regard to the position as above, we find that there is an arguable case and the finding on which the order of conviction is based and the grounds on which the same is under challenge, we 3 are of the opinion that a prima facie case has been made out showing possibility of success in appeal.
During the pendency of hearing of the appeal, the order of execution of sentence be suspended and the appellants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Malda upon furnishing a Bond of Rs.10,000 each, with two sureties of Rs.5,000/- each, one of whom must be local.
Accordingly, this application, being CRAN 3529 of 2016, stands allowed.
The office is directed to prepare the paper book within a period of ten (10) months from date 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 for hearing.
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 further 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. 4
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.) (Malay Marut Banerjee, J.)