In Re : Biswanath @ Babu Chatterjee vs State Of U.P. Reported In (2019) 13 ...
2021 Latest Caselaw 4030 Cal

02.08.2021 Court No.30

Avijit Mitra C.R.A. No. 224 of 2015 with CRAN No. 2 of 2021 with CRA No. 200 of 2015 (Via video Conference)

In Re:- Application for suspension of sentence under section 389 of the Code of Criminal Procedure arising out of Sessions Trial No.1(8) of 2012 corresponding to Sessions Case No. 23(5)of 2011;

And In Re : Biswanath @ Babu Chatterjee Petitioner/Appellant Mr. Ayan Bhattacharjee, Mr. Karan Daga For the Petitioner Mr. Neguive Ahmed, Ms. Zareen N. Khan, Ms. Amita Gaur For the State

This is an application for an order of suspension of sentence

and for grant of bail pending appeal against an order of conviction

and sentence. The petitioner/appellant has been convicted of

offences under sections 302/354/34 of the Indian Penal Code.

Mr. Bhattacharjee, learned advocate appearing for the

petitioner/appellant submits that there are fatal contradictions

and inconsistencies in the testimonies of the prosecution

witnesses. Such inconsistencies have been disregarded by the

learned court below, without any reason. In view thereof, there is a

chance of success in the present appeal.

He further submits that the petitioner is in custody for 10

years 5 months and 8 days and there is also no possibility towards

early disposal of the present appeal. In consideration of such

circumstances, the petitioner's sentence may be suspended and

he may be enlarged on bail.

In support of his arguments, Mr. Bhattacharjee placed

reliance upon the judgments delivered in the cases of Shrikant

Mishra Vs. State of U.P. reported in (2019) 13 SCC 381, Sandeep

alias Raja Acharya Vs. State of Orissa reported in (2018) 11 SCC

715 and Madan Singh Vs. State of M.P. reported in (2019) 20 SCC

587.

Mr. Ahmed, learned Additional Public Prosecutor appearing

for the State opposes the petitioner's prayer and submits that

where there is evidence that has been considered by the Trial

Court, it is not open to a Court considering application under

Section 389 to reassess and/or re-analyze the same evidence and

take a different view.

Records reveal that the petitioner's prayer was earlier rejected

by a co-ordinate Bench of this Court on 5th April, 2019. The

judgments upon which reliance have been placed by Mr.

Bhattacharjee are distinguishable on facts.

Having regard to the severity of the offences, the strength of

the prosecution case and as there had been no substantial change

in the circumstances subsequent to rejection of the petitioner's

prayer for suspension of sentence earlier, we are of the opinion

that this is not a fit case for suspension of sentence and grant of

bail to the petitioner.

The application being CRAN No. 2 of 2021 is, accordingly,

dismissed.

All parties shall act on the server copies of this order duly

downloaded from the official website of this Court.

(Subhasis Dasgupta, J) (Tapabrata Chakraborty, J)