Asbar Khan vs Unknown
2024 Latest Caselaw 4998 Cal

Citation : 2024 Latest Caselaw 4998 Cal
Judgement Date : 26 September, 2024

Calcutta High Court (Appellete Side)

Asbar Khan vs Unknown on 26 September, 2024

Author: Soumen Sen

Bench: Soumen Sen

                     26.09.2024
                     AD-02
                     Court No.29
                     TN
                                                        IA No: CRAN 2 of 2024
                                                                 in
                                                          CRA 209 of 2021

                                   In Re:- An application under Section 389(1) of the Code of
                                   Criminal Procedure, 1973.
                                                              And
                                    In the matter of: Asbar Khan
                                                                         .... petitioner/appellant

                                   Mr. Sourav Chatterjee,
                                   Mr. Shatadru Lahiri
                                                                       ....for the petitioner/appellant
                                                                                           (CHCLSC)

                                   Mr. Madhusudan Sur, Ld. APP,
                                   Mr. Manoranjan Mahata
                                                                                      ....for the State



                                   1.

The appellant is in custody for over eight years and eight

months. He was sentenced to life imprisonment for killing

his wife. Mr. Sourav Chatterjee, the learned Advocate

appointed by the Calcutta High Court Legal Services

Committee has argued that there are inherent contradictions

in the statement of the witnesses with regard to the

prosecution with regard to arrest and seizure of the offending

weapon. He has drawn our attention that while it has been

alleged that the incident had occurred on 21st January,

2016, the prosecution witness, namely, the Investigating

Officer has stated that he was the accused who was arrested

on 25th January, 2016. It is brought to our attestation that

P.Ws. 6, 8 and 10 had said that the appellant was arrested

on the date of the occurrence itself, that is, 21th January,

2016, however, P.Ws. 1, 2 and 16 (the Investigating Officer)

Signed By :

TANMOY NANDAN High Court of Calcutta 26 th of September 2024 05:07:09 PM

have clearly stated that the accused was arrested on 25th

January, 2016 and during remand, the offending weapon

was recovered on the basis of the statement of the accused.

However, no such statement was separately marked as

exhibit before the trial court.

2. Mr. Madhusudan Sur, the Ld. APP appearing on behalf of

the prosecution has submitted that three witnesses have

seen the accused with the offending weapon fleeing from the

place of occurrence and the accused had failed to explain the

circumstances under which his wife was found dead in the

house. However, no plausible explanation at this stage could

be offered with regard to the recovery of the weapon.

3. We have carefully read the judgment.

4. We are of the prima facie view that there are inherent

contradictions with regard to the arrest and the date of

occurrence. Admittedly, the statement purportedly recorded

under Section 27 of the Evidence Act was not exhibited. The

appellant has been able to make out an arguable case with

regard to the nexus between the offending weapon and his

involvement in the commission of the alleged offence. The

recovery of the offending weapon on the basis of the

statement of the accused prima facie has not been

established. The conviction is based on circumstantial

evidence.

5. In view of the fact, we are satisfied that the appellant has

been able to make out an arguable case on merits and

having regard to his long detention and there is no

Signed By :

TANMOY NANDAN High Court of Calcutta 26 th of September 2024 05:07:09 PM

immediate possibility of the appeal being taken up for

hearing, we are inclined to grant bail to the appellant on

stringent conditions.

6. We have also taken into consideration the report of the

Superintendent, Midnapore Central Correctional Home with

regard to his conduct and behaviour during incarceration. It

is reported that he performed labour as medical assistance

inside the jail hospital allotted by the Correctional Home

authority and his behaviour is good and well disciplined

during incarceration and there is no adverse report against

him.

7. The learned Additional Chief Judicial Magistrate, Contai

shall enlarge the appellant on bail on appropriate terms and

conditions till the disposal of the appeal. However, the

appellant shall appear before the learned Additional Chief