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Mariyam Begam & Anr vs The State Of West Bengal on 12 February, 2020

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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side

CRAN 4951 of 2019
in
CRA 681 of 2019
Mariyam Begam Anr.
-Vs.-
The State of West Bengal
With
CRAN 5017 of 2019
Mahidur Alam
-Vs.-
The State of West Bengal

Before: The Hon’ble The Chief Justice Thottathil B. Radhakrishnan

The Hon’ble Justice Arijit Banerjee

For the applicants : Mr. Milon Mukherjee, Sr. Adv.
(CRAN 4951 of 2019) Mr. Dattatreya Dutta, Adv.
(CRAN 5017 of 2019)

For the State : Mr. Saibal Bapuli, Ld. APP
(CRAN 4951 of 2019) Mr. Bibaswan Bhattacharya, Adv.

For the State : Mr. Madhu Sudan Sur, Ld. APP
(CRAN 5017 of 2019) Mr. Manoranjan Mahata, Adv.

Heard On : 10.02.2020

CAV on : 10.02.2020

Judgment On : 12.02.2020

Arijit Banerjee, J.:-
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1.

These two applications have been filed for suspension of sentence and

grant of bail by persons who stand convicted under Sections 302, 201

and 120B of the Indian Penal Code (in short ‘IPC’) and sentenced to

life imprisonment and also to pay fine by the Additional District and

Sessions Judge, Fast Track Court – II – Raiganj in Sessions Trial

No.40/2014 arising out of Sessions Case No.264/2008. CRAN

4951/2019 is an application by the mother-in-law and sister-in-law

(husband’s sister) of the victim lady. CRAN 5017/2019 is an

application by the victim’s husband.

2. The brief facts of the case as would appear from the written complaint,

the prosecution evidence and the findings of the Learned Trial Judge

are that the 1st accused (husband of the victim) and the victim were

married in 2004. After marriage, the victim went to the matrimonial

house and resided there for two months. The 1st accused, thereafter,

took her to a rented accommodation at Raiganj and resided there with

the victim. On September 23, 2005, the 1st accused informed his

father-in-law at about 10 a.m. that Sabina (victim) had left the

matrimonial home at 8:30 a.m. to go to her parental house. He

enquired as to whether Sabina had reached the parental house. On

September 24, 2005 a diary was lodged by the 1st accused with the

Raiganj Police Station that his wife had gone missing. On September

24, 2005 i.e. the same day, police seized one polythene bag containing

one severed head of a lady. Other parts of a female human body were
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recovered on 26th September and 27th September, 2005. The forensic

examination report confirmed that all the parts belong to the same

body. The lady was identified as the victim from photographs.

Pursuant to investigation, charges were framed against the 1st

accused, his mother (2nd accused) and his sister (3rd accused) under

Sections 302/120B/201/34 IPC.

3. The prosecution examined 34 witnesses. The defence examined none.

The Learned Trial Judge noted that there were no eye witnesses or

direct evidence and convicted the accused person on the basis of

circumstantial evidence. The Learned Trial Judge observed that the

chain of circumstances is so complete that the same indubitably

points towards the commission of the victim’s murder by the accused

persons.

4. We have heard learned Counsel for the applicants as also learned

Counsel for the State. We have considered the legal evidence on record

and assimilation of evidence by the Learned Trial Judge. It is, prima

facie, seen from the judgment under appeal that the Learned Trial

Judge recorded that the in-laws (2nd and 3rd accused persons) of the

victim used to inflict mental and physical torture upon her. They used

to put pressure on the victim to get landed property transferred from

her father and that the factum of torture and demand were narrated

by the victim to her family members and relatives whenever she

visited her parental house. However, we find that no charge was

framed under Section 498A IPC. Prima facie, there is nothing in the
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prosecution evidence that would indicate involvement of the 2nd and

3rd accused persons in the commission of offences they were charged

with. Undisputedly those two accused persons lived separately from

the victim. It is nobody’s case that on or about the date of occurrence

those two accused persons were at the place of occurrence or in its

vicinity.

5. On an overall assessment of the evidence on record we are satisfied

that the 2nd and 3rd accused persons have made out a case for

suspension of sentence and grant of bail.

6. As regards the 1st accused person being the applicant in CRAN

5017/2019, again, there is no direct evidence against him. The

Learned Trial Judge has convicted him purely on the basis of

circumstantial evidence. However, on an analysis of the legal evidence

on record, we are, prima facie, satisfied that the chain of

circumstances is not so complete that conviction of the 1st accused

person could be based thereon. For one thing, although it is stated in

evidence that the murder weapon was recovered from a showcase in

the house of 1st accused person, the same was not produced or

exhibited in Court. Around 10 doctors conducted post mortem on

severed parts of the victim’s body. None of the doctors were examined

in Court by the prosecution. One of the observations of the Learned

Trial Judge is that the 1st accused person was suspicious of the

chastity of his wife and suspected that she was having illicit affair

with some other person and on that ground there were frequent
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quarrels between the husband and wife. From this alone, one cannot

infer that the 1st accused killed his wife. In our prima facie view, the

quality of evidence brought on record by the prosecution is not such

as would persuade us to hold, at this stage, that the 1st accused does

not have any arguable case for acquittal at the hearing of the appeal.

7. This apart, all the accused persons have been on bail all along till they

were taken into custody with the pronouncement of the sentence after

passing of the order of conviction. Thus, they have been on bail since

2005, i.e., for the last fifteen years. It is nobody’s case that they have

jumped bail at any point of time, misused or abused bail in any

manner or have breached any condition of bail.

8. In view of the aforesaid we are of the opinion that this is a fit case

where the applicants are entitled to an order of suspension of

sentence and grant of bail. However, we clarify that the observations

made in this order are, prima facie and only for the purpose of

disposing of this interlocutory application for suspension of sentence

and grant of bail pending disposal of the appeal. The observations

made herein shall have no bearing at the final hearing of the appeal.

9. In the result, these applications succeed. The sentence of

imprisonment and fine imposed on the applicants by the Learned Trial

Court will stand suspended. The applicants shall be released on bail

on furnishing bail bond of Rs.10,000/- each, with two sureties of like

amount each, one of whom must be local, to the satisfaction of the
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Convicting Court and on further condition that the applicants shall

meet the Officer-in-Charge of the concerned police station once a

month between 1st and 5th starting from March, 2020 and further that

they shall be personally present or shall be represented before the

Court when the appeal is taken up for hearing.

10. The applications being CRAN 4951 of 2019 and CRAN 5017 of

2019 are accordingly disposed of.

11. Criminal Section is directed supply urgent Photostat certified

copies of this order to the parties, if applied for, upon compliance of all

necessary formalities.

12. Urgent certified photocopy of this judgment and order, if applied

for, be given to the parties upon compliance of necessary formalities.

I agree.

(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)

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