Calcutta High Court (Appellete Side)
Kumud Barman @ Kumod Barman @ Lalu vs In Re:- Hosnahara Bibi on 2 May, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
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02.05.2017
sm Allowed CRAN 3314 of 2016 In CRA 476 of 2016 In re:- An application under Section 389 of the Code of Criminal Procedure, 1973 And In the matter of:- Kumud Barman @ Kumod Barman @ Lalu & Ors.
.. Appellants (In Jail) Mr.Himangshu De Mr.Navanil De. .. for the appellants.
Mr.Neguive Ahmed, Ld.APP.
Mr.Arindam Sen.
In a sessions trial, the appellants were convicted under sections 302/376(g)/201/34 IPC and were sentenced to suffer imprisonment for life, rigorous imprisonment for 10 years and 3 years respectively with fine and default clause.
After the appeal being admitted and with the leave granted by the court admitting the appeal, they have now approached this court for suspension of sentence.
The learned advocate for the appellants first draws our attention to the statements of the post-mortem doctor, who was examined during the trial as PW 7 and further submits that this witness has never deposed to the effect that the victim was either raped or suffered homicidal death and consequently, the order of conviction cannot be sustained.
He further submits that one of the circumstances on which the court relied on is the circumstance of 'last seen together' and that is only against the appellant no.1. he further submits that, in this regard, two witnesses were examined, who are PWs 5 and 6 and both the witnesses 2 although were the local persons, but they were examined one month after the alleged occurrence and both admitted in cross-examination the fact that they saw the victim and the appellant no.1 going together on the fateful night, were not disclosed to the police.
It be noted that we have given an opportunity to the learned advocate for the State 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 and could not meet the points raised before us.
Having regard to above and considering the findings on which the order of conviction is based and the grounds on which the same is under challenge, we are of the opinion that a prima facie case has been made out showing possibility of success in appeal.
During the pendency 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, Uttar Dinajpur at Raiganj upon furnishing a Bond of Rs.10,000/- each, with two sureties of Rs.5,000/- each, one of who must be local.
The application for suspension of sentence, being CRAN 3314 of 2016, stands disposed of.
The office is directed to 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 6 months from this date of within 6 months from the date of arrival of the record and immediately after the preparation of the paper book is complete and appeal is made ready for hearing, the same shall be listed before the appropriate Bench for hearing, as and when the business of such court shall permit.
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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.) 19 02.05.2017 sm CRM No.3694 of 2017 In the matter of an application for bail under Section 439 of the Code of Criminal Procedure filed on 27.04.2017 in connection with Panrui Police Station Case No.21 of 2017 dated 07.03.2017 under sections 498A/307/34 of the Indian Penal Code and sections 3&4 of DP Act.
And In Re:- Hosnahara Bibi... Petitioner Md.Sabir Ahmed... for the petitioner Mr.Saswata Gopal Mukherjee, Ld PP Mr.Partha Pratim Das ... for the State.
Heard the learned advocates appearing on behalf of the parties. Perused the case diary.
The petitioner is the mother-in-law. She is in custody for about 57 days.
It is an admitted position that few days back, her prayer for bail was rejected.
The learned advocate for the petitioner contends that she is a physically handicapped lady and the father-in-law has been granted anticipatory bail by a co-ordinate Bench of this court. 4 On the other-hand, the learned Public Prosecutor, High Court, Calcutta opposes the prayer for bail and submits that the mother-in- law may be physically handicapped lady, but, according to the statement of the victim made before her attending doctor at the hospital, she implicated the present petitioner as one of the persons, who along with her husband set her on fire.
Now, considering the nature and seriousness of the allegation and the materials collected during investigation and the gravity of the offence, in our opinion, this is not a fit case for bail.
Accordingly, this application for bail stands rejected at this stage.
(Ashim Kumar Roy, J.) (Amitabha Chatterjee, J.) 5