In Re: Raju Adhikary @ Srimanta @ ... vs State Of Gujarat
2021 Latest Caselaw 4001 Cal

                                    CRA No.770 of 2013
                                           with
29.07.21

CRAN No.1 of 2019 (Old CRAN No.281 of 2019) (S.R.) and Sl.05 CRAN No.2 of 2019 (Old CRAN No.3101 of 2019) Ct.30 (Via video conference)

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

And In re: Raju Adhikary @ Srimanta @ Putkila ... appellant/petitioner.

Mr. Apalok Basu Mr. Sandip Mitra Mr. Abhishek Bose ... for the appellant/petitioner.

Mr. Rana Mukherjee Mrs. Sukanya Bhattacharyya Mr. Mirza Firoj Ahmed Begg ... for the State.

This is an application for an order of suspension of sentence and

grant of bail pending appeal against an order of conviction and

sentence. The appellant/petitioner has been convicted of offence under

Sections 498A/302 of the Indian Penal Code.

Mr. Basu, learned advocate appearing for the petitioner submits

that there are fatal contradictions in the testimonies of the prosecution

witnesses. The alleged complaint was lodged about 1½ months after

the incident and the entire case is based on confessional statement of

the petitioner.

According to Mr. Basu, the incident occurred on the spur of the

moment and such act was provoked by the action of the deceased and

as such the case would come under exception 1 or under exception 4 of

Section 300 IPC and the petitioner could not have been convicted under

Section 302 of IPC. In the said conspectus, there is every chance of

success in the present appeal.

He further submits that the petitioner had already undergone

imprisonment for about fifteen years and the possibility towards

disposal of the appeal in the near future is also very remote. The

petitioner had been released on parole on nine occasions and he has

not misused such liberty. In view of such conduct, he is entitled to the

relief as prayed for. In support of such contention, reliance has been

placed upon a judgment delivered in the case of Prahladbhai

Jagabhai Patel and Another v. State of Gujarat, (2020) 3 SCC

341.

Mr. Mukherjee, learned advocate appearing for the State opposes

the petitioner's prayer and submits that the materials on record clearly

reveal the direct involvement of the petitioner in the alleged offence.

The judgment delivered in the case of Prahladbhai Jagabhai

Patel (Supra) is distinguishable on facts. We do not find any patent

infirmity in the order of conviction that renders the same prima facie

erroneous. It does not appear to be a reasonably arguable case for

acquittal. Having regard to the severity of offence and the strength of

the prosecution case, we do not think that it is a fit case for suspension

of sentence and grant of bail to the petitioner, simply because he has

undergone a part of the sentence.

For these reasons, the applications being CRAN No.1 of 2019 (Old

CRAN No.281 of 2019) and CRAN No.2 of 2019 (Old CRAN No.3101 of

2019) are rejected.

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.)