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2016 DIGILAW 862 (CAL)

In Re: Arup Kumar Ghosh v. .

2016-11-08

ASHIM KUMAR ROY, SANKAR ACHARYYA

body2016
JUDGMENT : 1. Total four persons, including the present appellant, the husband of the deceased housewife, were placed in a sessions trial to answer charges for the offences punishable under Section 498A, 302, 304B, 201, 34 of the Indian Penal Code. While all the three relations of this appellant were acquitted from all the charges brought against them, the present appellant, however, convicted under Section 304-B/498A/201 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years, 3 years and 3 years respectively thereunder and to pay fines with default clauses. Challenging the said order of conviction, this appeal has been preferred and after its admission, now the appellant has approached this Court for suspension of sentence. 2. Mr. Sudipta Moitra, the learned Counsel appearing on behalf of the appellant vehemently contends that only two witnesses, namely, P.W. 1 and P.W. 3, the parents of the victim lady made the allegation that soon before her death, the accused person demanded dowry. He further submits that there is no independent corroboration and only the person, who does not belong to the family of the parents of the victim, namely, P.W. 2, has no direct knowledge about such demand and whatever he disclosed, are hearsay in nature and completely inadmissible evidence. He further submits that if at all, the allegation is accepted, the same is identical against all the persons placed on trial but the court below took an erroneous approach and convicted this appellant merely because he is the husband. He also submits that this is a case of term imprisonment and the appellant was all through on bail during trial and he never misused his such liberty. Therefore, he prays that the appellant's prayer for suspension of sentence be considered favourably. 3. On the other hand, the learned Counsel for the State opposes the prayer for suspension of sentence of the appellant and since objection was raised vehemently from the side of the State, we accorded an opportunity to the learned Counsel for the State, Mr. Neguive Ahmed to file his written objection in the light of the decision of the Hon'ble Apex Court in the case of Atul Tripathi v. State of U.P, reported in (2014) 9 SCC 177 : AIR 2014 SC 3062 , and in terms of the proviso to sub-section (1) of Section 389, Cr.P.C.. Neguive Ahmed to file his written objection in the light of the decision of the Hon'ble Apex Court in the case of Atul Tripathi v. State of U.P, reported in (2014) 9 SCC 177 : AIR 2014 SC 3062 , and in terms of the proviso to sub-section (1) of Section 389, Cr.P.C.. but he declined to file the same in writing and intended to resist this application orally on the strength of the available materials on record. 4. He then submits that specific allegation was made against the husband (the present appellant) and not against the others. 5. But going through the evidence of P.W. 1 and P.W. 2, we prima facie find that the allegations made against all the accused are identical about the demand of dowry and torture after marriage. 6. We have heard the learned Counsel appearing on behalf of the parties and considered their respective submissions as also the depositions of the witnesses produced today in court by the learned Counsel for the appellant. 7. Now, having heard the learned Counsel appearing on behalf of the parties and after perusing the impugned judgment and the depositions of the witnesses and considering the findings on which the order of conviction is based and the grounds on which the same is under challenge and also considering the further fact that this is a case of term imprisonment and the appellant was all through on bail during trial and he never misused his such liberty, we are of the opinion that a prima facie case, showing possibilities of success in the appeal, has been made out by the appellant. 8. Accordingly, we direct that pending hearing of the appeal, the order of execution of sentence shall remain suspended and the appellant shall be released on bail to the satisfaction of the learned Chief Judicial Magistrate, South 24-Parganas at Alipore upon furnishing a bond of Rs. 5,000/- with two sureties of Rs. 2,500/- each. 9. The application for suspension of sentence being CRAN No. 2764 of 2016 is, thus, allowed. 5,000/- with two sureties of Rs. 2,500/- each. 9. The application for suspension of sentence being CRAN No. 2764 of 2016 is, thus, allowed. Office is directed to call for the records once again, if the same have not been received by it as yet and shall prepare the requisite number of paper books within one year from date and as soon as the preparation of paper books is complete and the appeal is made ready for hearing, the same shall be listed for hearing before the appropriate Bench.