Calcutta High Court (Appellete Side)
In Re : Ali Imam vs State Of Punjab Reported In Air ... on 17 August, 2021
17.08.2021
Court No.30
Avijit Mitra
C.R.A. No. 24 of 2020
with
CRAN No. 1 of 2020 (Old No. CRAN 959 of 2020)
(Via video Conference)
In Re:- Application for suspension of sentence under section 389(1) of
the Code of Criminal Procedure;
And
In Re : Ali Imam
Petitioner/Appellant
Mr. Souvik Mitter,
Mr. Majahar Hossain Chowdhury
For the Appellant
Mr. S.G. mukherjee, Ld. P.P,
Mr. Aniket Mitra
For the State
This is an application for an order of suspension of sentence
and grant of bail pending appeal against an order of conviction and
sentence. The petitioner/appellant herein has been convicted of
offences under sections 4, 8 and 12 of the Protection of Children from
Sexual Offences Act, 2012 (in short, POCSO Act) and under Section
506 of the Indian Penal Code (in short, IPC).
Mr. Mitter, learned advocate appearing for the
petitioner/appellant submits that the prosecution has miserably
failed to establish the ingredients of Section 4 of the POCSO Act
against the petitioner and as such his culpability scales down to
offences under the other sections of the POCSO Act for which the
term imprisonment is of less than 10 years. The petitioner has
already suffered incarceration for about two years and there is also
no possibility towards early disposal of the present appeal. In view
thereof, the petitioner's sentence may be suspended and he may be
enlarged on bail on any stringent condition.
He submits that at the relevant point of time, the petitioner was
not present at the place of occurrence. Such fact stands fortified
through the deposition of the defence witness no.1, who categorically
stated that he had seen the accused in the morning in his shop and
also at the time of lunch at 2 pm. From the judgment impugned no
reason is forthcoming as to why the learned court below disbelieved
the deposition of the defence witness no.1. It cannot be assumed that
defence witnesses are always untrustworthy. In support of such
contention, Mr. Mitter has placed reliance upon judgments delivered
in the cases of Kaur Sain Vs. State of Punjab reported in AIR 1974 SC
329, Bibi Parwana Khatoon alias Parwana Khatoon & anr. Vs. State of
Bihar reported in (2017) 6 SCC 792 and Sahid Hossain Biswas Vs.
State of West Bengal reported in 2017 (2) C.CR.LR. (Cal) 467.
He argues that the medical evidence on record also does not
establish the allegation of penetrative assault. Upon considering such
evidence on record and the fact that the father of the victim boy
refused medical examination of his son, the petitioner was enlarged
on bail in course of trial. Even after noting the inconsistencies in the
deposition of the prosecution witnesses, the learned court below
disregarded the same, without any valid reason. In the said
conspectus, it cannot be said that the petitioner has no chance of
success in the present appeal.
Per contra, Mr. Mitra, learned advocate appearing for the State
submits that the materials on record clearly reveal the direct
involvement of the petitioner in the alleged offence. The learned Court
below arrived at a finding of guilt against the petitioner on the basis
of the evidence on record and as such, at this stage, no different view
can be taken on the basis of the same evidence.
It is well settled that a decision is an authority for what it
decides and not what can logically be deduced therefrom. Even a
slight distinction in fact may make a lot of difference in the decision
making process. The judgments upon which reliance has been
placed on behalf of the petitioner are distinguishable on facts.
We have assessed the quality of evidence recorded by the
learned court below. We do not find any strong and compelling
reason to suspend the sentence and to enlarge the petitioner on bail
at this stage regard being had to the prima facie merits of the appeal,
evidence on record and observations of the learned court below.
There is also no patent infirmity in the order of conviction. Having
regard to the severity of the offence and the strength of the
prosecution case, we are of the opinion that this is not a fit case for
suspension of sentence and grant of bail to the petitioner.
Accordingly, the application being CRAN No. 1 of 2020 (Old No.
CRAN 959 of 2020) is 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)
