Calcutta High Court (Appellete Side)
In Re:- Sri Gopal Sarkar vs The State Of West Bengal on 9 July, 2021
1
51 09.07.2021
rpan Ct.No.30 CRA No. 30 of 2020
with
CRAN 2 of 2020 [Suspension of sentence]
and
CRAN 3 of 2020 [urgent hearing]
In Re:- Sri Gopal Sarkar
- Appellant
- Vs-
The State of West Bengal
- Respondent
Mr. Debasis Kar,
Mr. Subhajit Chowdhury
... for the Appellant.
Mr. Madhusudan Sur,
Mr. Dipankar Paramanick
... for the State.
This is an application for suspension of sentence and
grant of bail pending disposal of the appeal preferred by the
appellant, who stood convicted for commission of offence
punishable under Section 302 of the Indian Penal Code. By the
judgment and order dated 17.12.2019 passed by the learned
Additional District & Sessions Judge, 2 nd Court, Barrackpore,
North 24 Parganas in Sessions Trial No. 02(12)2020 (C- 516 of
2009) corresponding to Sessions Case No.516 of 2009 the
appellant was sentenced to suffer simple imprisonment for life
and also to pay a fine of Rs.5,000/-.
The prosecution case in brief is that a written complaint
was lodged on 14.09.2009 before the Inspector-in-Charge,
Khardah Police Station by the mother of the deceased to the
effect that on 14.09.2019 in the evening at around 8:00 pm, one
Gopal Sarkar, the appellant herein, called her son, namely,
Pritam from his house and thereafter she received an
information at around 9:30 p.m. from the hospital that Gopal
Sarkar has stabbed her son with an intention to kill him and left
him near Pal Chowdhury Petrol Pump and her son was
thereafter admitted in Balaram Hospital with serious injuries.
Records reveal that the appeal was admitted by an order
dated 20.02.2020. The appellant thereafter preferred an
application for suspension of sentence, being CRAN 1014 of
2020 but his prayer was refused by an order dated 13th March,
2020.
Mr. Kar, learned advocate appearing for the appellant
submits that the entire case is based upon circumstantial
evidence. There are fatal contradictions in the testimonies of the
prosecution witnesses. No motive behind the offence was
established. The FSL report was also not exhibited and there is
clear contradiction as regards the place from where the
offending weapon was seized. In the said conspectus, it cannot
be said the appellant has no chance of success in the appeal.
He further submits that the appellant was on bail during
trial and he was taken into custody only after the delivery of the
impugned judgment and there is no possibility towards early
disposal of the present appeal. In support of his arguments, Mr.
Kar has placed reliance upon the judgments delivered in the
cases of Shivaji Chinttappa Patil vs. State of Maharashtra,
reported in AIR 2021 SC 1249, Mani vs. State of Tamil Nadu
reported in AIR 2008 SC 1021 and State of Rajasthan vs.
Wakteng reported in AIR 2007 SC 2020.
Per contra, Mr. Sur, learned Additional Public Prosecutor
appearing for the State opposes the appellant's prayer and
drawing our attention to the contents of the impugned
judgment, he submits that the sequence of events clearly
establishes the direct involvement of the appellant in the
offence.
He further submits that the appellant was last seen with
the deceased and his earlier prayer for suspension of sentence
was refused on 13th March, 2020 and there had been no change
in the circumstances thereafter. Considering the gravity of the
offence and the appellant's involvement, his prayer needs to be
refused. In support of his argument, Mr. Sur has placed reliance
upon a judgment delivered in the case of State of Haryana Vs.
Hasmant, reported in 2004 SAR (Crl) 724.
In State of Haryana (supra) the Hon'ble Court interfered
since the sentence was suspended and bail was granted by the
court below only as there was no allegation of misuse of liberty
against the accused during the period of parole.
In the present case, the material evidence on record prima
facie does not disclose any motive. Absence of such motive, in a
case depending on circumstantial evidence, is a factor that
weighs in favour of the accused. Every link in the chain of
circumstances needs to be established by the prosecution
beyond reasonable doubt and all the circumstances, prima facie,
do not consistently point towards the guilt of the accused. The
appellant's prayer for suspension of sentence was refused earlier
on 13.03.2020. However, the situation has changed with the
passage of time. The appellant was on bail during trial and has
not misused such liberty. There is no possibility towards early
disposal of the appeal.
Under such circumstances and without expressing any
opinion on the merits of the dispute and culpability of the
appellant and considering the present pandemic situation, we
are of the opinion that it would be appropriate to suspend the
sentence of the appellant and to grant him bail.
Accordingly, we direct that the appellant, Sri Gopal
Sarkar shall be released on bail on furnishing bail bond of
`20,000/- with two sureties of like amount, one of whom must
be local, to the satisfaction of the learned Additional Chief
Judicial Magistrate, Barrackpore, North 24-Parganas and on
further condition that on being released, he shall meet with the
Officer-in-Charge, Khardah Police Station once a fortnight till
disposal of the appeal and he shall also be personally present or
be represented before this Court when the appeal is taken up for
hearing.
The application for urgent hearing, being CRAN 3 of
2020 and the application for suspension of sentence, being
CRAN No. 2 of 2020 are accordingly disposed of.
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.)
