In Re : Amerul Haque vs State Of West Bengal Reported In ...
2021 Latest Caselaw 4657 Cal

07.09.2021 Court No.30 Item No.32 Avijit Mitra C.R.A. No.236 of 2019 with CRAN No. 1 of 2019 (Old No. CRAN 1685 of 2019) (Via video Conference)

In Re:- Application under section 389(1) of the Code of Criminal Procedure;

And In Re : Amerul Haque Petitioner/Appellant Mr. Ujjal Ray For the Appellant Mr. Madhusudan Sur, Mr. Sudip Ghosh, Mr. Bitasok Banerjee, Mr. Apurba Kumar Datta 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 petitioner/appellant has been convicted of

offences under section 377 of the Indian Penal Code (in short, IPC)

and Section 6 of the Protection of Children from Sexual Offences

Act, 2012 (in short, POCSO Act).

Mr. Ray, learned advocate appearing for the

petitioner/appellant submits that the appellant was the landlord

of the room in which the family of the victim boy was residing. The

complainant withheld payment of rent for five years. When the

appellant asked the complainant to pay the arrear rent, he

threatened to implicate the appellant falsely and demanded

Rs.50,000/- to vacate the room. No independent witness has been

examined by the prosecution and the circumstances necessary to

prove the guilt of the accused has not been established by the

prosecution beyond reasonable doubt. There are fatal

inconsistencies in the deposition of the prosecution witnesses. The

learned Court below disregarded such inconsistencies, without

any cogent reason and even failed to note that the appellant has

been successful in rebutting the presumption under Section 29 of

the POCSO Act. In view thereof, it cannot be said that the

appellant has no chance of success in the appeal. In support of

such contention reliance has been placed upon the deposition of

the doctor and upon a judgment delivered in the case of Sahid

Hossain Biswas vs. State of West Bengal reported in (2017) 3

Cal.L.T 243 (HC).

He submits that the petitioner was granted bail after he

suffered incarceration for about 81 days in course of trial and he

had already suffered further incarceration for a period more than

2 years after the delivery of the impugned judgment. There is also

no possibility towards early disposal of the present appeal and as

such, the appellant's sentence may be suspended and he may be

enlarged on bail on any stringent condition.

Mr. Ghosh, learned advocate appearing for the State opposes

the appellant's prayer and drawing the attention of this Court to

the deposition of PW 3, being the mother of the victim, he submits

that the appellant has not been able to rebut the presumption

under Section 29 of the POCSO Act. The appellant has already

been found guilty by the learned court below on the basis of the

evidence on record and at this stage a different view cannot be

taken on the basis of the self-same evidence on record.

We have heard the learned advocates appearing for the

respective parties and have assessed the quality of evidence

recorded by the learned Court below. We do not find any strong and

compelling reason to suspend the sentence and to enlarge the

appellant on bail at this stage regard being had to the prima facie

merits of the appeal, evidence on record and observations of the

learned court below. Having regard to the severity of the offence and

the strength of the prosecution case, we are of the opinion that this is

not a fit case for suspension of sentence and grant of bail to the

appellant.

Accordingly, the application being CRAN No. 1 of 2019 (Old

No. CRAN 1685 of 2019) is dismissed.

All parties shall act on the server copies of this order duly

downloaded from the official website of this Court.

(Rabindranath Samanta, J) (Tapabrata Chakraborty, J)