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Sujoy Mitra vs The State Of West Bengal & Anr on 30 July, 2018


In The High Court At Calcutta
Criminal Appellate Jurisdiction

CRAN 1657 of 2018
CRA 110 of 2018
Sujoy Mitra


The State of West Bengal Anr.

Mr. Sandipan Ganguly
Mr. A.Ali
Mr. Arkadeb Bhattacharyya
Mr. Rohit Chakraborty
… for the petitioner/appellant.

Mr. Madhusudan Sur
Mr. Dipankar Paramanick
… for the State.

This is an application for bail under Section 389 of the Criminal Procedure

Code, 1973 for suspension of the judgement of conviction dated January 19,

2018 and order of sentence dated January 10, 2018 passed by the learned

Additional Sessions Judge, 8th Court, Alipore, South 24-Parganas in Sessions

Trial No. 1(8) of 2014, which corresponds to Sessions Case No. 1(10) of 2013,

convicting thereby the appellant for commission of offence punishable under

Section 376(1) of the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for seven years and to pay a fine of Rs. 2,00,000/- in default to

suffer simple imprisonment for a further period of one year, inter alia, on the

grounds stated in the petition.

The appellant was placed on trial before the learned trial Court to answer

to charges for commission of offences punishable under Section 376(1) of the

Indian Penal Code in connection with Sessions Trial No. 1 (8) of 2014, which

corresponds to Sessions Case No. 1(10) of 2013, arising out of Kalighat Police

Station Case No. 164 dated June 1, 2013. The petitioner states that he has very

good and arguable case and has a fair chance of success if the aforesaid appeal is

heard out on merits.

I have heard the learned advocate for the petitioner/appellant and also the

learned advocate for the State who has invited my attention to the deposition of

the victim girl, PW-5 who has deposed through video conference. I have gone

through the impugned judgement. It is submitted by Mr. Sandipan Ganguly,

learned advocate appearing for the petitioner/appellant that the victim on the

alleged date of occurrence went to the house of the accused in the night on the

alleged date of occurrence and stayed there till the rest of the night and there

was no resistance alleged made by her when allegedly she was subjected to

sexual assault rather she slept overnight and when she left the premises in the

morning searching for a taxi she did not raise any hue and cry in the locality.

It is pointed out that the conviction and sentence are based on a finding

exclusively on the evidence of the victim girl and on the basis of the medical

examination. Medical evidence is not the evidence rather is the opinion evidence.

My attention is adverted to the medical report on the alleged date of

occurrence. She was examined by a doctor of SSKM hospital medically. In the

medical report there was no trace of blood and there was no tear of hymen, no

wound found on her private part or any part of her body. At the time of first

medical examination a scratch was seen save and except scratch mark on the

back but without any observation as to the age of that scratch mark and without

any external signs of injury on the private part. The victim was allegedly

examined on the second time on June 7, 2017 when scratch abrasions were seen

on right and left thigh bruise on the knee antero-media yellowish green in colour.

There appears an arguable case in this appeal. It is pertinent to take note of the

fact that the accused/appellant was arrested on June 2, 2013 so the

accused/appellant has already undergone incarceration in jail for a period of 5

years and 2 months and the remission period taken custody, undergone by him

would be six years in jail.

In support of the argument Mr. Ganguly has referred to a decision in the

case of Bhagwan Rama Shinde Gosai Ors. v. State of Gujarat, reported in 1999

C Cr LR(SC) 247 wherein the Hon’ble Apex Court held that :-

” When a convicted person is sentenced to fixed period of sentence and when

he files appeal under any statutory right, suspension of sentence can be

considered by the appellate Court liberally unless there are exceptional

circumstances. Of course if there is any statutory restriction against suspension of

sentence it is a different matter. Similarly, when sentence is life imprisonment the

consideration for suspension of sentence could be of a different approach.”

Secondly, Mr. Ganguly has referred to a decision in the case of Kiran

Kumar v. State of M.P, reported in 2001 C Cr LR(SC) 6 wherein the Hon’ble Apex

Court held that :-

“When a person is convicted and sentenced to a short term imprisonment the

normal rule is that when his appeal is pending the sentence should be suspended

and rejection is only by way of exception and reason be put forward for such

rejection. In such case also every endeavour should be made to have the appeal

posted for early hearing and disposal. If the short-term sentence is allowed to run

out during the pendency of the appeal, the appeal itself will become, for all

practical purposes, infructuous so far as the appellant is concerned. It does not

mean that the Appellate Court should suspend the sentence, if its consequence

would be dangerous to the society or any other similar difficulties.”

In the case of Kamal v. State of Haryana, reported in (2006) 1 SCC (Cri)

757 wherein the Hon’ble Apex Court held that:-

” This is a case in which the appellant has been convicted under Section

304-B IPC and sentenced to imprisonment for 7 years. It appears that so far the

appellant has undergone imprisonment for about 2 years and four months. The

High Court declined to grant bail pending disposal of the appeal before it. We are of

the view that the bail should have been granted by the High Court, especially

having regard to the fact that the appellant has already served a substantial

period of the sentence. ”

In the case of Salim Javed v. State of Rajasthan, reported in (2006) 3

Supreme Court Cases (Crl.) 354 wherein the Hon’ble Apex Court held that: –

” The appellant has been sentenced to undergo 7 years’ rigorous

imprisonment for the offence punishable under Section 304B IPC and 2 years’ RI

with a fine of Rs.500/- for an offence punishable under Section 498A IPC. The

appellant’s appeal is pending in the High Court. His submission is that there is no

chance of his appeal being heard in the near future. The appellant has already

suffered sentence of 3 years and 6 months. In these circumstances, we allow this

appeal and direct that the appellant shall be released on bail on his furnishing bail

bond and surety to the satisfaction of the trial Court.”

In respectful consideration of the observation in the facts and

circumstances of the case in judgements cited above authored by the Hon’ble

Apex Court and further in consideration of the arguable case of the appellant,

this Court inclined to enlarge on bail on furnishing a bond of Rs.10,000/- with

two sureties of Rs.5,000/- each, one of whom must be a local subject to the

satisfaction of the learned Chief Judicial Magistrate, Alipore, South 24-Parganas.

Thus, CRAN 1657 of 2018 stands disposed of.

Urgent xerox certified copy of this order, if applied for, be given to the

parties after completion of all legal formalities.

sh ( Shivakant Prasad, J.)

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