CRA No. 01 of 2017
In Re:- An application for suspension of sentence under
Section 389(1) of the Code of Criminal Procedure being
CRAN No. 873 of 2017 filed on 22.02.17 in connection with
ST No. 2(1) 2014.
In the matter of:- Abhishek Keswari alias Abhishek
Mr. Sekhar Basu, Ld. Sr. Counsel,
Mr. Smarajit Basu For the appellant
This matter was listed on 10th April 2017 with a
clear indication that the matter will be taken up on 12th
April 2017 but as nobody appeared on behalf of the State,
the hearing was adjourned and today when this matter is
taken up for hearing, although the learned counsel for
the appellant is very much present in court, none appears
on behalf of the State nor has any accommodation has been
In such circumstances, we request Mr. Saswata Gopal
Mukherjee, Learned Public Prosecutor, who is present in
court to appear in this matter with Mrs. Amrita Gour.
Office is directed to regularize the engagement of
Mrs. Gour in due course.
In a Sessions Trial the appellant was convicted
under Sections 498A/304B of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for ten years
and two years respectively and to pay fine with default
Challenging the said order of conviction and
sentence, this appeal has been preferred. After the
appeal being admitted and on the liberty granted by the
court, admitting the appeal, this application for
suspension has now been moved before us.
The learned Senior Counsel, Mr. Sekhar Basu
vehemently contends before us that in a case of this
nature it is essential for the prosecution to establish
that not only the victim died within seven years of her
marriage suffering an unnatural death but at the same
time this has to be proved soon after her death there was
a demand of dowry and on such demand of dowry, she was
subjected to cruelty. He further submits, P.W. 2 is the
maker of the FIR and he admitted in his cross-examination
that the fact relates to demand of dowry but the same was
not disclosed in the complaint. He further submits
besides P.W. 2, there are other witnesses, P.W. 4 and
P.W. 6. Both of them claimed that there was demand of
dowry and on the failure of the parents of the victim to
fulfil their demands, she was subjected to torture and
that led her to commit suicide. He then strenuously urged
that all those two witnesses were suggested that these
facts were not stated to the investigating officer of the
case during investigation but the investigating officer
of the case not being examined during the trial nor any
police officers have been examined by the prosecution in
this regard. The appellant could not take the
contradiction and, therefore, the appellant has suffered
Since, having regard to above, we found there are
possibilities of success in the appeal and inclined to
consider the release of the convict on bail, accordingly,
in the light of the decision of the Hon’ble Apex Court in
the case of the 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 Cr.P.C., we
offered an opportunity to the learned counsel for the
State to file his rejoinder in writing to which he
chooses not to submit any show cause and on the other
hand proposed to rely on the materials already on record.
In his reply, the Learned Public Prosecutor submits
that since the I.O. has been expired, he could not have
been examined. But he cannot able to meet the point
raised by Mr. Basu, learned Senior Counsel. According to
him that instead of the I.O. some other police officers,
who are acquainted with the hand writing of the I.O.
could have been examined to ascertain whether there was
at all any contradiction or not.
Heard the learned counsel appearing on behalf of the
parties. Considered their respective submissions and also
gone through the depositions of the witnesses.
We are of the opinion, from the findings on which
the order of conviction is based and the grounds on which
the same is under challenge, a prima facie case has been
made out showing possibilities of success in appeal.
Accordingly, the application for suspension of
sentence is allowed.
We, therefore, direct pending hearing of the
appeal, the order of execution of sentence shall remain
suspended and the appellant be released on bail to the
satisfaction of the learned Chief Judicial Magistrate,
Barasat, North 24-Parganas on a bond of Rs. 10,000/- with
two sureties of Rs. 5,000/- each, one of whom must be
It goes without saying that our observations made
hereinabove must not be construed to be our findings on
the merits of the case and it is only highlighted to
dispose of this application for suspension of sentence.
The application of suspension of sentence being CRAN
No. 873 of 2017 stands disposed of.
Since the LCR have not yet been received, Office is
directed to call for the same once again within two weeks
from this date and to ensure that the same are received
by this office within four weeks thereafter and as soon
as the same are received, requisite number of paper books
be prepared within ten months thereafter and as soon as
the preparation of the paper books is complete and the
appeal is made ready for hearing, the same shall be
listed before the appropriate Bench for hearing.
Urgent xerox certified copy of this order, if
applied for, be handed over to the learned counsel for
the parties on their usual undertakings.
(Ashim Kumar Roy, J.)
(Amitabha Chatterjee, J.)