Procedure; vs In Re: Arun Kumar Mondal
2021 Latest Caselaw 4402 Cal

25.08.21 (S.R.) CRA No.266 of 2019 Sl.10 with Ct.30 CRAN No.2 of 2021 (Via video conference)

In re: An application under Section 389 of the Code of Criminal Procedure;

And In re: Arun Kumar Mondal ... appellant/petitioner.

Mr. Satadru Lahiri ... for the appellant/petitioner.

Mr. Saswata Gopal Mukherje, Ld. PP Ms. Faria Hossain Ms. Sonali Das ... for the State.

This is an application for suspension of sentence and grant of

bail pending appeal preferred against an order of conviction and

sentence. The petitioner/appellant has been convicted under Section

4 of the POCSO Act and sentenced to suffer rigorous imprisonment

for 10 years and to pay a fine of Rs.10,000/-, in default, to suffer

rigorous imprisonment for three months more.

At the very threshold of this case, the learned advocate for the

petitioner/appellant submits that this is a renewal of the prayer for

suspension of sentence after it was rejected by a Coordinate Bench of

this Court on 22nd July, 2019. Against the rejection of suspension of

sentence, a SLP was moved before the Apex Court, which was

subsequently withdrawn giving liberty, as prayed for, by the

petitioner/appellant. Hence, this application.

Learned advocate for the petitioner/appellant submits that the

petitioner/appellant, who is a teacher, has been falsely roped in this

case out of a community dispute, and no such incident, was ever

held. It is further submitted that the complainant belonging to 'Kora

Community', demanded subscription from the petitioner/appellant

on the occasion of Manasa Puja, which the petitioner/appellant

refused to give and the appellant /petitioner having declined to give a

false certificate to one of the members of the Kora Community, an

inimical relationship between two different communities was

developed, which has led to his false implication. Over this issue, the

members of the Kora Community badly assaulted the

petitioner/appellant and manufactured this case with cooked up

materials against this petitioner/appellant. Upon receiving intimation

of such assault, the wife of the petitioner/appellant lodged a criminal

case against some members of Kora Community, which the

witnesses, examined in this case, have corroborated in their

respective cross-examinations. This is also disputed that statement

of the victims have been marked exhibits, denying the objections

raised by the defence taking resort to Section 294 of the Criminal

Procedure Code, which is absolutely illegal, and no credence should

be attached on such statement of victims recorded under Section 164

Cr.P.C.

Mr. Lahiri further argues that prior to lodging F.I.R. against the

petitioner/appellant, a complaint was lodged before Mahila Samity,

and after being backed by the Mahila Samity, the

petitioner/appellant has been entangled in this case with a designed

purpose. There are several incongruities/infirmities in the evidence,

which though brought to the notice of the Court, but remained

unredressed. Since there is fair chance of success in this appeal, and

since there is no immediate possibility towards early disposal of this

appeal, the petitioner/appellant should be released on bail upon

suspending his sentence taking into account that the

petitioner/appellant is in custody for the last six years.

Learned advocate for the State raises objection against the

prayer for suspension of the sentence. It is submitted by the State

that there are as many as 7 (seven) victims, spanning within the age

group of 6 to 8 years, who have been subjected to penetrative

assault. It is further submitted that there are several materials

available in the testimony of witnesses, revealing involvement of the

petitioner/appellant, as regards commission of offence upon the said

victims. As regards the false implication, raised by the

petitioner/appellant, learned advocate for the State, adverting to

Page-40 of the impugned judgment, submits that I.O. of this case

held investigation on such issue, but nothing could be elicited.

According to State, no new circumstance has been established for the

proposed revisit of suspension of sentence.

We have heard both sides, considered the strength of

prosecution witnesses, and the nature and quality of the evidence

adduced in this case. Several victims are found to have been

subjected to penetrative sexual assault. There is no apparent

infirmity in the findings reached by the learned Trial Judge, while

holding the petitioner guilty. When there is evidence and that was

considered by the learned Trial Court, it is not open for this Court to

reassess the evidence for taking a different view in connection with

an application under Section 389 Cr.P.C. Without establishing

contradiction in respect of statement of victims recorded under

Section 164 Cr.P.C., the plea taken by petitioner that statement of

victims recorded under Section 164 Cr.P.C., marked exhibits under

Section 294 Cr.P.C., would not itself enure to the benefit of acquittal

for petitioner.

Since there is no change in the circumstances, we find no

scope to re-visit the prayer for suspension of sentence, what has

already been rejected by a Co-ordinate Bench of this Court.

Having regard to the seriousness of the offence, severity of the

circumstances, and the despicable nature of crime being committed

upon such tender aged victim girls, we are of considered view that

this is not a fit case, where we should exercise our discretion by

granting suspension of sentnece.

Accordingly, the prayer for suspension of sentence is

considered and rejected.

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.)