Tapan Dalui @ Tapan Dolui vs Unknown
2022 Latest Caselaw 50 Cal

Citation : 2022 Latest Caselaw 50 Cal
Judgement Date : 10 January, 2022

Calcutta High Court (Appellete Side)

Tapan Dalui @ Tapan Dolui vs Unknown on 10 January, 2022

Court No.
35
                              C.R.A. 370 of 2021
Item no.
62
ssi
                   In the matter of:- Tapan Dalui @ Tapan Dolui
10.01.
2022


                               Mr. Sandipan Ganguly, Sr. Adv
                               Mr. Dipanjan Dutt

                                                    ...for the appellant

                               Mr. Narayan Prasad Agarwala
                               Mr. Pratick Bose
                                                  ...for the State




                  Mr. Sandipan Ganguly, learned senior advocate

            appears for the appellant through virtual mode and

            submits that the convict/appellant, Tapan Dalui @ Tapan

            Dolui, has preferred this appeal under Section 374 (2) of

            the Code of Criminal Procedure, 1973 being aggrieved

            and dissatisfied with the judgment of conviction dated

            20.09.2021 and sentence dated 21.09.2021 passed by

            the learned Additional Sessions Judge, Fast Track Court,

            Suri, Birbhum in Sessions Trial No. 2/February/2019

            corresponding with Sessions Case No. 103 of 2018

            whereby the appellant has been sentenced to suffer

            rigorous imprisonment for three years and to pay a fine of

            Rs. 10,000/- in default to suffer simple imprisonment for

            a period of two months. The appeal has been filed on

            substantial question of law as follows:

                  "III) For that the evidence on record does not justify
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the conviction of the appellant under Sections 306/498A

of the Indian Penal Code and as such the impugned order

of convictioin and sentence is liable to be set aside.

      IV) For that the learned Judge by convicting the

appellant on the basis of sketchy evidence adduced by

the prosecution has committed grave prejudice to the

appellant for which the impugned judgment and order of

conviction and sentence is liable to be set aside.

      VII) For that examination of the appellant under

Section 313 of the Code of Criminal Procedure was not

conducted in a proper manner in accordance with law.

Incriminating circumstances, which have been relied

upon by the learned trial Court in order to convict the

appellant, has not been placed before the Appellant for

her explanation.

      IX) For that the learned judge ought to have

weighed in the import of such evidence of the PW 10,

prior to placing any reliance on the purported dying

declaration, especially when even PW 10 could not say if

the purported dying declaration was of the deceased

Alpana Dalui. The learned judge erred in accepting the

purported dying declaration recorded by P.W.10 as

having evidentiary value. Considering the gravity of the

offence alleged, and the import of the consequence of

failing to make a proper appraisal of the evidence therein,

ordinary prudence would call for the purported dying
                        3




declaration recorded by P.W. 10 to be not fit for reliance,

      along     with   the   others   laid   down   in   this

application."



      Mr. Narayan Prasad Agarwala and Mr. Pratick

Bose, learned advocates, who usually represent the State

have appeared for the State in this matter. Their

appointment may be regularized in this appeal by the

concerned authority.

      Heard learned advocates for the appellant and

respondent/State, perused the memo of appeal and the

impugned judgment. I find there is a prima facie case to

prefer this appeal. Let the appeal be admitted.

Mr. Sandipan Ganguly, learned advocate for the

appellant prays for confirmation of the bail of the

appellant under Section 389 (1) of the Code of Criminal

Procedure. It is submitted that since the convict had

been granted bail by the learned Judge of the trial Court

under Section 389 (3) of the Code of Criminal Procedure,

the same may be confirmed by the Court of appeal till

disposal of the appeal.

Heard learned advocates for the State.

I find from order dated 21.09.2021 that learned