Utpal Mondal vs Unknown on 30 June, 2017

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49.
30.06.2017.
ap
C.R.A. 187 of 2017

In the matter of: Utpal Mondal. … Appellant

Ms. Chandreyee Alam,
Mr. Navonil De. …… for the Appellant.

Mr. Subir Banerjee,
Ms. Benazir Hasna. …. for the State

In a sessions trial, while the appellant, Utpal Mondal, was

convicted under Sections 302/498A IPC and sentenced to suffer

rigorous imprisonment for life and rigorous imprisonment for three

years respectively and to pay fines with default clauses, three other

co-accused persons are the relations of the appellant were acquitted,

approached this Court for engaging a Lawyer for preferring an appeal

directly through the Welfare Officer, Dum Dum Central Correctional

Home on his behalf against the impugned order of conviction and

sentence and to prosecute the same at the costs of the State.

Accordingly, this Court engaged Lawyers from the High Court

Legal Services Committee to take appropriate steps in this regard.

Against such order of conviction and sentence, the learned

counsel for the appellant has filed a statutory appeal, which has

already been admitted. Now, with the liberty granted by the Court

admitting the appeal, the appellant has approached this Court for

suspension of sentence and his release on bail.
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The learned counsel appearing on behalf of the appellant first

contends that the case against the appellant is based on the evidence

of his daughter, PW/7. She further submits that at the time of the

alleged incident, PW/7 was only aged about seven years. She then

draws our attention to her cross-examination and points out that in

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the cross-examination, the witness admitted that she heard from her

grandparents how her mother was killed by her father. She also

draws our attention to the later part of the cross-examination of the

said witness and points out that according to her, she was playing at

the house of one of her friends and when she came back, she found

her mother lying dead in a pool of blood. She lastly contends that in

her chief, PW/7 however claimed that her father killing her mother

and fled away from the spot but the same stands contradicted by her

cross-examination.

On the other hand, the learned Special Counsel Mr. Subir

Banerjee appearing with Ms. Benazir Hasna submits that the

daughter (PW/7) was not an eyewitness to the occurrence but

according to the PW/3, who was residing at the adjacent house, on

the previous night, there was a huge quarrel between the husband

and wife i.e., between the appellant and the victim and on the next

morning around 6 a.m. they were found together in the house. He

then submits according to the PW/4 quarrel between the husband

and the wife was a regular feature. He then vehemently contends the
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victim/housewife was killed inside her matrimonial home and

husband is the best man to explain how she was killed but no

explanation is available. Lastly, it is contended that a plea of alibi

was taken by the appellant that at the relevant time he was in the

field but same was not proved.

Heard the learned Advocates appearing for the respective

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parties. Perused the impugned judgment, the copies of the

depositions of the witnesses produced by the counsel of the appellant

and other materials on record.

Before taking any decision in the matter, we accorded an

opportunity to the learned counsel for the State, since objection was

raised vehemently from the side of the State, to file his written

objection in the light of the decisions of the Hon’ble Apex Court in

the case of Atul Tripathi vs. State of U.P., reported in (2014) 9

SCC 177, and in terms of the proviso to sub-section (1) of section

389 CrPC, but he declined to file the same in writing and intended to

resist this application orally on the strength of the available

materials on record.

Now, considering the findings on which the impugned order of

conviction is based and the ground on which the same is under

challenge, we are of the opinion that a prima facie case has been

made out showing possibilities of success in appeal.
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Having regard to that, the prayer for suspension of sentence is

allowed.

Accordingly, we direct pending hearing of the appeal, the order

of execution of sentence shall remain suspended and the appellant

shall be released on bail to the satisfaction of the learned Chief

Judicial Magistrate, Nadia on a bond of Rs.4,000/- of two sureties of

Rs.2,000/- each.

We make it clear the observation made hereinabove must not

be construed as our opinion as to the fate of the appeal and we were

constrained to do that for coming to a decision in the matter.

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Office is directed to supply a photostat copy of the certified

copy of the order to the Member Secretary, High Court Legal Services

Committee for taking appropriate steps for release of the appellant

from custody.

We find that already records have been received. Accordingly,

we direct the Department to prepare the requisite number of paper

books within three months from this date. We further direct that as

soon as the preparation of the paper books is complete and appeal is

made ready for hearing, the same shall be supplied to the counsels

already engaged to appear on behalf of the appellant and the State.

The learned counsel for the appellant shall have the liberty to

mention the appeal for early hearing before the appropriate bench.
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Urgent photostat certified copy of this order, if applied for, be

given to the parties as expeditiously as possible on compliance of

necessary formalities.

(Ashim Kumar Roy, J.)

(Amitabha Chatterjee, J.)

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