An Application Under Section 389 … vs In Re: Piyarul Sk on 10 August, 2017

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111
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
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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.
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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.)

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10.08.2017
sm
Rejected

CRM No.7698 of 2017
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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.)
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