In Re: Shabbir Alam @ Ullu Raju vs State Of
2021 Latest Caselaw 4080 Cal

04.08.2021
Item no. 13
Ct.30
PA

                                        C.R.A. No.204 of 2021
                                                With
                                         CRAN No. 2 of 2021

                                        (Via Video Conference)

                   In Re:- An application under Section 389(1) of the Code of
                Criminal Procedure;

                          And

                   In re: Shabbir Alam @ Ullu Raju        ..... appellant/petitioner.

                    Mr. Soubhik Mitter, Adv.
                    Mr. Litan Maitra, Adv.
                    Ms. A. De, Adv.
                    Ms.. R. Das, Adv.              .... For the appellant/petitioner.

                    Mr. Prasun Kumar Datta, APP.
                    Mr. Subrato Roy. Adv.
                                                .... For the State.




                    This is an application for suspension of sentence and grant of

              bail pending appeal preferred against the order of conviction U/s

              302/34 of Indian Penal Code and sentence thereunder.

                    Trial Court held the petitioner convicted for offence under

              Sections   302/34    I.P.C.   and   sentenced   him    to   suffer   life

              imprisonment with a fine of Rs.50,000/-, in default, simple

              imprisonment for another 5 years.

                    Learned advocate for the petitioner, Mr. Mitter submits that

              prosecution case has been highly improbalised on the simple ground

              that on the date of occurrence, it was physically impossible for the

              petitioner to take part in the crime, because he visited Bangladesh

              at the relevant point of time. It is further submitted that Trial Court
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decided the case in a haste showing extra agility without allowing

the petitioner to discharge his burden connected with plea of alibi by

adducing sufficient witnesses for the purpose, and for such reason

there has been sufficient prejudice caused to the petitioner in

respect of valuable defense of the petitioner.

      It is thus sought to be established that witness was necessary

for examination in authentification of the endorsement of seals and

stamps, put on the passport of the petitioner, which was rejected on

15.02.2018

by Trial Court, and proceeded to hear the argument

after closing the evidence for the defence side. Petitioner having felt

aggrieved with the rejection moved a revisional application being No.

C.R.R. 612 of 2018 before this Court, and the same is submitted to

be pending.

Since the petitioner is in incarceration for last 14 years, and

since the Trial Court did not allow the petitioner to establish the

plea of alibi properly, and as there is no possibility towards early

disposal of this appeal, he is entitled to bail.

Reliance is placed upon by Mr. Mitter, learned advocate for

the petitioner/appellant, on a decision reported in (2019) 15 SCC

677 delivered in the case of Mehboob and Anr. Vs. State of

Maharashtra that upon completion of custody of 14 years, since

the date of his arrest, together with satisfactory conduct of

petitioner being shown, while in correctional home, petitioner

should be released on bail with some conditions pending final

decision of this appeal.

Learned advocate for the State raises objection against the

prayer for suspension of sentence and grant of bail. It is submitted

that petitioner was a long absconder, and the trial for the co-

accused persons had to be split-up. More so, the plea of alibi was

taken at belated stage, even the witnesses, having had the

opportunity to view the occurrence, could not be discredited in their

respective cross-examinations taking the plea of alibi. As regards

the plea of alibi, it is further submitted that as many as 4 witnesses

have been examined from defence side, and even after examination

of DW-4, petitioner suddenly woke up advancing a prayer for

examination of witness for authentification of endorsement of seals

and stamps put on the passport of petitioner, which was rejected by

the Trial Court, taking into account the 10 (ten) years old pendency

of the present case, together with a direction of this court conveying

a message to the Trial Court for disposal of 10 (ten) years old cases

by March, 2018 in connection with a mission mode programme. It is

thus nothing but a ploy taken by the defence for dragging the trial to

indefinite time.

We have perused the judgment impugned. Admittedly

petitioner was allowed to examine four (4) witnesses from defence

side of its choice in support of the plea of alibi. It is a case wherein

deceased victim suffered death receiving bullet injuries on his

forehead. Deceased victim was pulled down from his house to the

place of occurrence, wherein PW-5 being the brother of the deceased

found the petitioner to shoot at his deceased brother, resulting in

his death. The plea of alibi was taken by the petitioner, but in

support thereof, the testimony of PW 5 even could not be

disregarded taking the plea of alibi. The witness proposed to be

examined by the petitioner for establishing the authenticity of the

endorsement of seals and stamps on the passport of the petitioner

could have been taken much earlier, even before the examination of

first defence witness.

No apparent discrepancies/incongruities are there, which may

suggest that findings were erroneously reached. The decision

referred by the petitioner is patently distinguishable on facts. In

view of desperate nature of offence being committed and the severity

of the circumstances involved in this case, we are not inclined to

grant bail to petitioner suspending the sentence. The prayer for

suspension of sentence stands dismissed.

CRAN application being No.2 of 2021, accordingly stands

disposed of.

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