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Abhishek Keswari Alias Abhishek vs Unknown on 13 April, 2017



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
Keshari Appellant

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

sought for.


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

serious prejudice.

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.)

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