CRA/394/2019
2022 Latest Caselaw 390 Cal

08.02.2022 Sl. No.9 akd C. R. A. 394 of 2019 [via video conferencing] (CRAN 2 of 2021)

In Re : An application for suspension of sentence under Section 389 of the Code of Criminal Procedure filed on 28.04.2021 :

A N D

In Re : Dipankar Hazra ...... Appellant

Mr. Abhijit Kumar Adhya ... ... for the appellant

Mr. Saibal Bapuli .. Ld. Addl. Public Prosecutor Mr. Arani Bhattacharyya ... ... for the State

It is submitted on behalf of the appellant that the confession

recorded by the learned Magistrate suffers from various infirmities. It is

further submitted that the sentence is one of term imprisonment. Hence,

the appellant may be released on bail.

Learned Additional Public Prosecutor opposes the prayer for

bail and submits that the housewife suffered death due to throttling. No

plausible explanation was given by the appellant-husband with regard to

the circumstance in which his wife died. On the other hand, he

confessed his guilt before the Magistrate.

We have considered the evidence on record. Housewife was

killed by throttling. Crescentic nail marks were noted in the neck by the

post-mortem doctor. Confessional statement was made before the

Magistrate by the appellant. In view of the aforesaid evidence on record

and bearing in mind the gravity of the offence, we are not inclined to

suspend the sentence imposed upon the appellant.

Accordingly, application for suspension of sentence is turned

down.

The application being CRAN 2 of 2021 is thus rejected.

Paper books be prepared within eight weeks from the date of

receipt of lower court records.

Having perused the judgment of the trial court, we are of the

opinion that the reasons given by the trial court for altering the case

from Section 302 IPC to Section 304 Part II IPC is based on weak and

extraneous consideration which are not borne out from the evidence on

record.

Accordingly, let a Rule be issued upon the appellant calling

upon why the order of conviction recorded under Section 304 Part II IPC

be not enhanced to Section 302 IPC.

Department is directed to serve the Rule upon the appellant,

who is presently in custody, through the Superintendent of the

Correctional Home and report be filed on the adjourned day.

The Rule is made returnable eight weeks hence.

(Rabindranath Samanta, J.) (Joymalya Bagchi, J.)