389 Of The Code Of Criminal ... vs In Re : Masirul Sk
2021 Latest Caselaw 3528 Cal

01.07.2021

sdas allowed

CRA 789 of 2015 with CRAN 4 of 2019 (Old No. CRAN 3559 of 2019) with CRAN 5 of 2020

In Re : An application for suspension of sentence under Section 389 of the Code of Criminal Procedure.

                                           And
             In Re : Masirul Sk.     ...... appellant


                   Mr. Debasis Kar
                   Mr. Subhajit Chowdhury
                                     ....... for the appellant


                   Mr. Madhusudan Sur, learned A.P.P.
                   Mr. Dipankar Paramanick
                                      ....... for the State

The appellant in CRA 789 of 2015 has filed the present

application being CRAN 4 of 2019 (old CRAN No. 3559 of 2019)

for suspension of sentence imposed by the learned court below

that has convicted him of offences under Sections 302/34 of

the Indian Penal Code. The learned court below has imposed

the sentence of rigorous imprisonment for life with fine of

Rs.10,000/-, in default, to suffer imprisonment for six months.

The prosecution case is that there was a long standing

dispute in between the accused persons and one Rabban Ali.

On 8th June, 2012 at about 8 a.m. the accused persons set fire

in the jute stacked in the house of Rabban Ali in a pre-planned

way and when Rabiul Islam raised protest against such act,

an altercation took place and at that time the third accused,

namely, Rafika Bibi handed over a hasua to the first accused,

namely, Tojammel Haque and the second accused, namely,

Masirul Sk., being the appellant herein caught hold of the

victim and then Tojammel Haque gave several blows to the

victim with hasua and the victim ultimately succumbed to his

injuries.

Mr. Kar, learned advocate appearing for the appellant

submits that there are contradictions in the testimonies of the

witnesses. There is no clinching and convincing evidence

against the appellant and he has been implicated since there

was a long pending family dispute between the parties. A co-

ordinate bench of this court has suspended the sentence and

granted bail to the principal accused, namely, Tujmul Haque @

Tojammel Haque by an order dated 4th February, 2020. The

extent of involvement of the appellant in the alleged offence is

much less compared to that of the principal accused. The

appellant was granted bail during trial and after delivery of the

judgment he was taken into custody on 31st August, 2015.

Mr. Sur, learned advocate appearing for the State

opposes the appellant's prayer and submits that in view of the

severity of the offence and the strength of the prosecution case,

this is not a fit case for suspension of sentence more so, when

the appellant's prayer was earlier rejected by orders dated 10th

January, 2017 and 29th June, 2018.

We have considered and assessed the quality of the

evidence recorded by the trial court. Prima facie an element of

sudden provocation in the occurrence cannot be ruled out and

as such this may be an arguable case. The principal accused

is Tujmul Haque @ Tojammel Haque and it appears from the

judgment that the appellant herein was attributed a role of

assisting Tujmul Haque. The extent of involvement of the

appellant is less compared to that of the principal accused. The

sentence of the principal accused has, however, been

suspended by an order dated 4th February, 2020 passed by a

co-ordinate bench of this court in CRA 64 of 2018 with CRAN

2815 of 2019 subsequent to rejection of the appellant's prayer

for suspension of sentence on 10th January, 2017 and 29th

June, 2018. The situation has, thus, changed with the

passage of time.

Under such circumstances, we allow CRAN 4 of 2019

(old CRAN No. 3559 of 2019) and suspend the sentence and

direct that the appellant shall be released on bail on furnishing

bail bond of Rs.10,000/- with two sureties of like amount each,

one of whom must be local, to the satisfaction of the learned

Additional Chief Judicial Magistrate, Lalbagh, Murshidabad,

and on further condition that the appellant shall meet the

Officer-in-Charge of Bhagwangola Police Station once in a

month till disposal of the appeal and further that the appellant

shall be personally present and be represented before this

Court when the appeal is taken up for hearing.

The applications being CRAN 4 of 2019 (old CRAN No.

3559 of 2019) and CRAN 5 of 2020 are allowed.

All parties shall act on the server copies of this order

duly downloaded from the official website of this Court.

(Suvra Ghosh, J.) (Tapabrata Chakraborty, J.)