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2017 DIGILAW 257 (CAL)

IN RE: NAYAN DAS v. .

2017-03-06

ASHIM KUMAR ROY, DEBI PROSAD DEY

body2017
JUDGMENT : 1. In Sessions Trial No. 10 of 2007 arising out of sessions case no. 10 of 2007 learned Additional Sessions Judge, Fast Track Court, Second Court, Asansol convicted the appellant and sentenced them to suffer rigorous imprisonment for a period of 2 years and to pay a fine of Rs.2,000/- each in default to suffer simple imprisonment for 2 months for the offence under Section 498 A of the Indian Penal Code and has further been pleased to convict appellant no. 1 and 2 for the offence under Section 304 B and thereby sentenced them to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- in default to undergo for simple imprisonment for 3 months. Learned trial Court has also convicted appellant no. 3 and 4 for the offence under Section 304 B of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for a period of 7 years each and to pay a fine of Rs.5,000/- each in default to suffer simple imprisonment for a period of 1 month. 2. The appeal has been preferred by all the appellants and the said appeal was admitted by a co-ordinate Bench of this Court and pursuant to the liberty given by the coordinate Bench of this Court, this CRAN application has been filed with the prayer for suspension of the sentence as well as release of all the appellants on bail. 3. Learned Senior Advocate Mr. Dipak Sengupta appearing on behalf of the appellants contended that appellant no. 4 is married sister in law of the victim and appellant no.3 is the mother in law of the victim. 4. Learned Advocate contended that on the date of occurrence appellant no. 3 and 4 were not present in the matrimonial home of the victim and in fact appellant no. 3 had been to Puri and appellant no. 4 was in her matrimonial home. 5. Mr. Sengupta drew our attention to paragraph 2 of page no. 30 of the judgment delivered by the trial Court in order to substantiate his contention regarding the absence of appellant no. 4 from the place of occurrence on the fateful date. While drawing our attention to page no. 37 of the judgment, Mr. Sengupta further contended that learned trial Court has failed to consider the specific cross examination of witnesses as well as the assertion of appellant no. 4 from the place of occurrence on the fateful date. While drawing our attention to page no. 37 of the judgment, Mr. Sengupta further contended that learned trial Court has failed to consider the specific cross examination of witnesses as well as the assertion of appellant no. 4 during her examination under Section 313 of the Code of Criminal Procedure regarding her absence from the place of occurrence. 6. Learned senior Advocate Mr. Sengupta further contended with force that learned trial Judge has failed to consider that there was no eye witness of such occurrence and that the prosecution has failed to discharge initial burden of proof so as to invoke the presumption as contemplated under Section 113 B of the Indian Evidence Act. 7. Mr. Sengupta has also drawn the attention of this Court with regard to the cross examination of the doctor, who has been examined as prosecution witness no. 11, wherein the doctor has categorically stated that possibility of accidental burn injuries cannot be ruled out and such burn injuries might have been caused at the time of cooking or at the time of ignition of the oven. 8. Learned Advocate appearing on behalf of the State has on the contrary, drawn the attention of the Court with regard to the evidences of prosecution witness no. 1, 2, 3, 4, 5 and 6. 9. Learned Advocate appearing on behalf of the State contended that within 6 months of such marriage of the victim, she was practically burned to death in the house of her in laws and accordingly learned trial Court was perfectly justified in awarding such sentences against the present appellants. 10. Learned Advocate appearing on behalf of the State further contended that no case has been made out by the appellant in order to show that the victim sustained such burn injuries on her person while cooking since the dead body of the victim was found on the roof top and the kitchen is situated on the ground floor of the building where-from the dead body of the victim was recovered. It is further submitted that hundred percent burn injury was found on the person of the victim and the appellants could not make out any case of such accidental burn injury on the roof top of such building and therefore such cross examination of prosecution witness no. It is further submitted that hundred percent burn injury was found on the person of the victim and the appellants could not make out any case of such accidental burn injury on the roof top of such building and therefore such cross examination of prosecution witness no. 11 would in no way help the case of the appellant. 11. Learned Advocate appearing on behalf of the State further contended that the house of the appellant was found locked from outside and the witnesses could enter into the house after breaking open the pad lock and thereafter the dead body of the victim was found on the roof top of such building. In that view of this case learned Advocate for the State contended that the prayer for suspension of sentence as well as release of the appellants on bail ought to be rejected. 12. We have been taken through the evidences on record as well as the lower Court record in order to come to a definite finding with regard to the prayer for suspension of sentences as well as release of the appellants on bail. Admittedly appellant no. 4 is the married sister in law of the victim. Admittedly appellant no. 4 used to reside in her matrimonial home prior to such occurrence. Specific alibi has been taken by all the appellants with regard to their absence from their house but they did not adduce by any evidence or prove their alibi to the effect that they were not available in their respective houses on the fateful date. 13. Appellant nos. 3 and 4 were all along on bail during the trial and there is absolutely no material to show that they have ever misused the liberty granted to them. Furthermore sentence of 7 years of imprisonment in all has been awarded against both the appellants viz. appellant no. 3 and 4. Opportunity was given to the Advocate for the State to file written statement in terms of the decisions referred to 2014 (9) SCC 177 (Atul Tripathi v. State of U.P.) but learned Advocate appearing on behalf of the State did not file any written statement but chose to defend the case of the State on verbal submission. In that view of this case the prayer for suspension of sentence in respect of appellant no. In that view of this case the prayer for suspension of sentence in respect of appellant no. 3 and 4 is allowed and they be released on bail subject to the satisfaction of the learned Chief Judicial Magistrate, Burdwan. 14. Both the appellants no. 3 and 4 (Namita Das and Rita Bal) be released on bail upon execution bond of Rs.10,000/- each with the two sureties of Rs.5,000/- each subject to the satisfaction of learned Chief Judicial Magistrate, Burdwan. 15. On careful consideration of the materials on record and after going through the submissions of learned Advocates, we are of considered view that such benefit cannot be extended to appellant no. 1 and 2. 16. Thus the prayer for suspension of sentence and release on bail of appellant no. 1 and 2 namely Nayan Das and Sayan Das stands rejected. 17. The CRAN application is accordingly disposed of. 18. Lower Court record has already sent to this Court by learned trial Court and we direct the department to examine the same and to prepare requisite number of paper books within a period of 6 months. After preparation of paper book and when the matter would be ready for hearing the same may be listed before the appropriate bench for final hearing. 19. It is thus made clear that observations made in the foregoing paragraphs shall have no bearing on the merit of the case at the time of final disposal of the appeal. 20. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.