Uttam Basak vs Unknown
2021 Latest Caselaw 528 Cal

25.01.2021 Item no.65&66 Court No.1 AB/SDE(a)

(Via Video Conference)

C.R.A. No.33 of 2015 I. A. CRAN 3 of 2019 (Old CRAN 2770 of 2019) I. A. CRAN 4 of 2020 (Old CRAN 2562 of 2020) (CAN NOT FOUND) With C.R.A. No.50 of 2015 I. A. CRAN 1 of 2015 (Old CRAN 756 of 2015)

In the matter of : Uttam Basak

...Appellant/ Petitioner.

Mr. Ankit Agarwala, Mr. Subir Debnath, Ms. Roma Roy, Mr. Vinit Ojha ...for the Appellant/Petitioner.

Mr. N. P. Agarwala...for the State.

In re : CRAN 2770 of 2019 (Uttam Basak)

Three persons, namely, Jhoru Basak, Uttam Basak and

Mantu Basak were arraigned as accused in S. C. No. 66(1) 2010

in the Court of Additional District and Sessions Judge, Fast Track

Court-I, Krishnanagar, Nadia on charges under Sections 326/34

and 307/34 of the Indian Penal Code.

By a judgment and order dated November 28, 2014, the

said accused persons were found guilty for having committed

offences under Sections 307/34 of the Indian Penal Code and

were sentenced to suffer rigorous imprisonment for ten years with

a fine of Rs.5,000/-, in default, to suffer further rigorous

imprisonment for a term of four months. One of the accused

persons, namely, Mantu Basak, was also found guilty for having

committed offences under Section 326 of the Indian Penal Code

and on that count he was sentenced to suffer rigorous

imprisonment for 7 and ½ years with a fine of Rs.5,000/-, in

default, further rigorous imprisonment for four months. The three

convicted persons have jointly preferred the appeal in which the

present application has been taken out by one of the convicted

persons i.e. Uttam Basak, for suspension of sentence and grant of

bail pending disposal of the appeal.

The prosecution case is that the appellants owed money to

the victim i.e. Biswajit Kolay. On the date of the occurrence, the

appellants persuaded Biswajit to accompany them to a place

telling him that his money would be returned. Biswajit went with

them. After sometime, the appellants told Biswajit that they would

be going to Krishnanagar where they had arranged for the money

which they would hand over to Biswajit. When they reached

Krishnanagar, the appellants persuaded Biswajit to accompany

them to a bar where all of them consumed alcohol. On their way

back from Krishnanagar, Jhoru, who was riding pillion on the

motorcycle of Biswajit, asked Biswajit to stop the motorcycle as he

wanted to answer nature's call. Biswajit stopped the motorcycle.

So did Mantu and Uttam, who were on Uttam's motorcycle. Jhoru

went towards a bush apparently to relieve himself. It was then

that suddenly Mantu stabbed Biswajit from behind. It is alleged

that thereafter all three appellants assaulted Biswajit. Biswajit

ran and took shelter in a nearby house. Based on a complaint

made by Biswajit's father, the police conducted requisite

investigation, which resulted in issuance of charge sheet against

the appellants under Sections 307/34 and 326/34 of the Indian

Penal Code. Hence, the trial which led to the conviction of the

appellants.

We have heard learned Counsel for the applicant, Uttam

Basak and learned Counsel for the State.

We have considered the evidence on record and particularly

the medical report, the evidence of the examining doctor and the

evidence of P.W.12, who is the victim. Prima facie, there appears

to be inconsistencies between the testimonies of the different

witnesses. We have assessed the quality of the evidence recorded

by the Trial Court. On an overall appreciation of the assimilation

of evidence by the Trial Court and the entire facts and

circumstances of the case, we are of the opinion that this is not a

case where it can be said that the applicant has no chance of

succeeding in the appeal. Prima facie, it appears that the

applicant may be able to demonstrate at the hearing of the appeal

that he had no major involvement in the commission of the crime.

The applicant has already served more than six years out of

the ten years' imprisonment handed down to him. Further, one of

the co-accused i.e., Jhoru, has been enlarged on bail upon his

sentence being suspended by an order dated May 18, 2016

passed in CRA 50 of 2015.

The applicant's prayer for suspension of sentence was

rejected twice by this Court, once by the order dated June 18,

2015 passed in CRAN 912 of 2015 and then again by the order

dated July 28, 2016 passed in CRAN 2158 of 2016. However, the

situation has changed with the passage of time. The applicant

has already served six years out of the ten years' sentence

imposed on him. There is no real likelihood of the appeal being

heard in the near future. Keeping in view the principles of law

laid down by the Hon'ble Supreme Court in Kashmira Singh Vs

State of Punjab reported in (1977) 4 SCC 291 and on an overall

assessment of the facts and circumstances of the case, we are of

the view that the applicant may be enlarged on bail on conditions

mentioned hereinafter.

Accordingly, we direct that the appellant/applicant, namely,

Uttam Basak shall be released on bail upon furnishing a bond of

Rs.10,000/- (Rupees Ten Thousands only) with two sureties of

like amount each, one of whom must be a local surety, to the

satisfaction of learned Chief Judicial Magistrate, Nadia at

Krishnagar on condition that he shall report to the Officer-in-

charge of the concerned Police Station once a month till the

disposal of this appeal unless otherwise ordered.

The appellant/applicant shall be present or be represented

at the hearing of the appeal.

The application being C.R.A.N. 2770 of 2019 is allowed.

Urgent Photostat Certified copy of this order, if applied for,

be supplied expeditiously after complying with all necessary legal

formalities.

(Thottathil B. Radhakrishnan, C.J.)

( Arijit Banerjee, J.)