Calcutta High Court (Appellete Side)
In Re:- Motilal @ Matilal Shaw & ... vs State Of West Bengal on 22 July, 2021
1
22.07.2021
Ct.No.30 CRA No. 172 of 2021
Sl. No. 6 with
P.A/A.P CRAN 1 of 2021 [Suspension of sentence]
In Re:- Motilal @ Matilal Shaw & Others
- Appellants
- Vs-
State of West Bengal
- Opposite Party
Mr. Phiroje Edulji,
Mr. Jagadis Chandra Majumdar,
Mr. Shibaji Kumar Das,
Mr. Soumyajit Das Mahapatra,
Mr. Ahshan Ahmed,
Ms. Rupsa Sreemani
... for the Appellants/Petitioners
Mr. Madhusudan Sur,
Mr. Dipankar Paramanick
... for the State.
In the present application under 389 of the Code, the
petitioners have prayed for suspension of sentence imposed
upon them on 22nd February, 2021 in Sessions Case No. 390 of
2013 by the Learned Additional Sessions Judge, 3rd Court,
Barrackpore, Dist: 24-Parganas (North).
By the judgment impugned, the petitioners were convicted
for offence punishable under section 302 read with section 34 of
the Penal Code and were sentenced to suffer imprisonment for
life and pay fine of Rs.50,000/- each. The petitioners have come
up in appeal against the said judgment and order and have
prayed for suspension of the sentence imposed upon them,
pending disposal of the appeal, in the instant application.
Taking the court through the evidence on record, learned
counsel for the petitioners has pointed out to the
contradictions/inconsistencies in the evidence of witnesses. It is
submitted on behalf of the petitioners that PWs 1,2,3,4 and 6
are interested witnesses, PWs 1 to 4 being related to the victim
and PW 6 having strained relation with the petitioners and as
such, conviction of the petitioners on the testimony of such
witnesses cannot be sustained in law. The blood samples were
not sent for chemical examination and there is reasonable doubt
with regard to the exact place of occurrence of the incident. The
petitioners have been falsely implicated and have an arguable
case in appeal, so much so that chance of their acquittal in the
appeal cannot be wholly ruled out. It is further submitted that
the petitioners were on bail during trial and have never misused
the said liberty. Moreover, in view of the prevailing pandemic,
the prayer of the petitioners ought to be considered liberally
keeping in mind the health and safety of the petitioners, more
so, as petitioner no. 1 is an old and ailing person aged about 75
years.
The State vehemently opposes the prayer of the petitioners
and submits that the petitioners have been convicted for an
offence as serious as under section 302 of the Penal Code and
do not deserve suspension of sentence merely on the ground
that they did not misuse their liberty throughout the trial.
Allegations against the petitioners have been substantiated by
eye witnesses viz., PW- 1,2,3,4 and 6 and their evidence cannot
be brushed aside merely on the ground that they are either
related to the victim or are interested witnesses. The petitioners
do not deserve any concession at this stage and their prayer
ought to be rejected.
We have heard the learned counsel appearing for the
petitioners as well as the State and have assessed the evidence
recorded by the learned trial court as well as the trial court's
analysis of the same in the judgment impugned. The moot
question for consideration in the present application is whether
the sentence imposed upon the petitioners can be suspended,
pending disposal of the appeal.
The record reveals that the learned trial court, in
convicting the petitioners, dealt with the evidence on record as
well as argument canvassed by learned counsel for the parties in
support of their respective cases.
At this juncture, we are tempted to refer to the decision in
Preet Pal Singh v/s The State of Uttar Pradesh and Another in
Criminal Appeal No. 520 of 2020 wherein the Hon'ble Supreme
Court has observed that "In considering an application for
suspension of sentence, the Appellate Court is only to examine if
there is such patent infirmity in the order of conviction that
renders the order of conviction prima facie erroneous. Where there
is evidence that has been considered by the Trial Court, it is not
open to a Court considering application under Section 389 to re-
assess and/or re-analyze the same evidence and take a different
view, to suspend the execution of the sentence and release the
convict on bail".
In the present case, we do not find any strong and
compelling reason to enlarge the petitioner nos 2 and 3 on bail
at this stage and regard being had to the prima facie merits of
the appeal, evidence on record, observation of the learned trial
court as well as involvement of the petitioners no. 2 and 3 in the
offence, we are not inclined to exercise discretion in favour of
these petitioners. The mere fact that the petitioners were on bail
during trial and did not misuse such liberty cannot per se be a
ground for suspension of sentence in isolation of other factors.
[(2004) 6 SCC 175]. However, it appears that petitioner no. 1,
who is the father of petitioners no. 2 and 3 is aged about 75
years and he is not the principal assailant who caused the death
of the victim. Considering the evidence against petitioner no. 1
as well as his age, we are inclined to grant an order of
suspension of sentence in his favour, pending disposal of the
appeal.
Accordingly, the prayer of petitioners no. 2 and 3 is
rejected.
Sentence imposed upon petitioner no. 1 be suspended,
pending disposal of the appeal.
Petitioner No.1 Motilal @ Matilal Shaw be released on bail
on furnishing bond of Rs. 20,000/- with two sureties of like
amount, out of whom one should be local, subject to satisfaction
of Learned Additional Chief Judicial Magistrate, Barrackpore,
District North 24-Parganas.
CRAN 1 of 2021 is accordingly disposed of.
Urgent photostat certified copies of this order, if applied
for, be supplied to the parties expeditiously on compliance with
the usual formalities.
(Suvra Ghosh, J.) (Tapabrata Chakraborty, J.)
