Sunil Patar & Ors vs Unknown
2022 Latest Caselaw 216 Cal

28.01.2022
Serial no. 14
  Srimanta
 Ct. No. 42
                                (Through Video Conference)

                              IA No.: CRAN/1/2021
                                          in
                                   CRA 347 of 2021



                In Re : An application for bail in connection with appeal under
                Section 389(1) of the Code of Criminal Procedure, 1973
                against the judgment and order dated 29.11.2021 and
                30.11.2021 passed by the Learned Additional District and
                Sessions Judge, Fast Track Court, Suri, Birbhum in connection
                with Sessions Case No. 55/2017 (Reg. No. 92 of 2017)
                corresponding to Sessions Trial No. 3/August/2017 under
                Sections 304(B)/498(A)/34 of the Indian Penal Code, 1860.

                In the matter of : Sunil Patar & Ors.             ... Petitioners.




                        Mr. Ayan Bhattacharyya, Adv.,
                        Mr. Kunal Ganguly, Adv.,
                                                           ...for the appellants.
                        Mr. Saswata Gopal Mukherjee, Ld. P.P.,
                        Mr. Partha Pratim Das, Adv.,
                        Mrs. Manasi Roy, Adv.,
                                                                ...for the State.


                        The petitioners are convicted by the Trial Court for the

                offence punishable under Sections 498A/304B/34 of the Indian

                Penal Code.   They were sentenced to suffer imprisonment for

                three years for the offence under Section 498A and seven years

                each for the offence under Section 304B/34 of the Indian Penal

                Code.

                        The instant appeal is against the judgment and order of

                conviction and sentence passed against the petitioner.
                           2




          It is submitted by Mr. Bhattacharyya, learned advocate

for the petitioners that the petitioners are the matrimonial

relations of the deceased.        During trial, the independent

witnesses did not support the prosecution case.              The said

witnesses were not declared hostile by the prosecution.          It is

also pointed out that during trial the petitioners were on bail

and they never misused the conditions thereof.         Therefore, as

the petitioners were sentenced to term imprisonment they may

be released on bail on suspension of sentence pending the

disposal of the appeal following the decisions of the Hon'ble

Supreme Court in Bhagwan Rama Shinde Gosai & Ors. -

Vs.- State of Gujarat reported in 1994 (4) SCC 421 followed

by Kiran Kumar -Vs.- State of M.P. reported in (2001) C.

Cr. LR (SC) 6.

          Learned Public prosecutor-in-Charge, on the other

hand, submits that charge against all the accused persons were

framed under Section 302 of the Indian Penal Code. However,

at the time of delivery of judgment the learned Trial Judge

erroneously convicted the accused persons under Section 304B

of the Indian Penal Code. It is also submitted by the learned

Public Prosecutor-in-Charge that though the State has not filed

any appeal against the judgment and order of conviction passed

by the Trial Court, the respondents can agitate the point at the

time of hearing of the appeal. It is also pointed out by the

learned Public Prosecutor-in-Charge that as per autopsy

surgeon's report death of the deceased was due to the effect of

violent asphyxial death with the possibility of smothering not

being ruled out, anti-mortem and homicidal in nature along with

the attempt to hang the body post-mortem.

According to the learned Public Prosecutor-in-Charge,

the post-mortem report clearly suggests that this is a case of

gruesome murder of the victim and they are not entitled to bail

at this stage.

Having heard the learned counsels for the petitioners

and the State respondent and on careful perusal of the evidence

on record, this Court is of the view that at this stage of

adjudication of a petition under Section 389(3) of the Code of

Criminal Procedure, the Court is duty bound to see as to

whether the sentence passed by the learned Trial Judge should

be suspended and the petitioners should be permitted to remain

on bail. Whether the petitioners are entitled to graver

punishment or not is a point for consideration at the time of

final hearing of the appeal.

It is not disputed that the petitioners were all along on

bail during trial of the case and they did not misuse the

conditions. It is also not disputed that they were sentenced to

term imprisonment of seven years for committing offence under

Section 304B of the Indian Penal Code.

Therefore, in my considered view, keeping in mind the

ratio of the decisions of the Hon'ble Supreme Court, the

accused persons are entitled to bail pending disposal of the

appeal.

Accordingly, execution of sentence of imprisonment is

suspended. The petitioners are enlarged on bail of Rs.20,000/-

with two sureties of Rs.10,000/- each to the satisfaction of the

learned Chief Judicial Magistrate at Suri, Birbhum with further

condition that if on bail they must attend the Court of the

learned Chief Judicial Magistrate, Suri at Birbhum once in a

month till the disposal of the appeal. If the petitioners violate

the conditions of bail, the instant order shall be cancelled

without further reference to this Bench.

(Bibek Chaudhuri, J.)