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2020 DIGILAW 32 (CAL)

Bhanu Hazra v. State Of West Bengal

2020-01-09

ARIJIT BANERJEE, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT Arijit Banerjee, J. - This application for suspension of sentence and grant of bail pending disposal of appeal has been taken out by one of the convicts i.e. Bhanu Hazra who was the accused no.2 in Sessions Trial No.1/November, 2007 arising out of Sessions Serial No.1094 of 2007. The accused persons, who were three in number, were charged under Sections 302/34 and 201 IPC. They were all found guilty of committing offence punishable under Sections 302/34 IPC. Each of the convicts including the present applicant was sentenced to life imprisonment and to pay fine of Rs.1,000/-, in default simple imprisonment for two months. The present appeal has been filed by the accused person nos.2 and 3. However, the present application has been filed only by the accused person no.2. 2. The prosecution case based on the written complaint filed by one Ajmot Sk. on 18.07.2007 is that Tanjil Sk. (brother of the complainant), Rabia Bibi (Wife of complainant), Serfal Sk. (Son-in-law of complainant) and Anarul Sk. (nephew of complainant) admitted the ailing daughter of the complainant to Berhampore Hospital. The doctor treating the patient advised blood transfusion for the patient. Tanjil Sk. and Anarul Sk. went to Berhampore town in a rickshaw van to collect blood. Anarul Sk. returned to the hospital but Tanjil Sk. and the rickshaw van driver Motilin Sk. did not return to the hospital. Next morning the dead body of Tanjil Sk. was discovered. His throat was cut, he had five injury marks on the left side of throat and one scratch mark on the back and bruises all over the body. 3. On the basis of the written complaint, the police started investigation and framed charge-sheet against the accused persons. 4. The prosecution case is primarily based on the evidence of two so-called eye witnesses, P.W.13 and P.W.15. P.W.13 deposed that Tanjil Sk. and Anarul Sk. availed his rickshaw van and visited the house of one Gour Ghosh. Gour Ghosh told them that he would arrange for the blood in the morning and requested Tanjil Sk. and Anarul Sk. to take rest in his house for the night. Tanjil did not agree. Tanjil left the house of Gour Ghosh in the van driven by P.W.13. On the way, at the place of occurrence, the accused persons forcibly took Tanjil Sk. down from the rickshaw van. and Anarul Sk. to take rest in his house for the night. Tanjil did not agree. Tanjil left the house of Gour Ghosh in the van driven by P.W.13. On the way, at the place of occurrence, the accused persons forcibly took Tanjil Sk. down from the rickshaw van. Thereafter, they gave a blow to P.W.13 with musket on his waist and asked him to leave the place. He then went to Berhampore Hospital where he received medical treatment. Thereafter, he went to the bus stand and after keeping his rickshaw van in the bus stand he took a bus and went to his house. Subsequently, in the morning at about 8:00 a.m. he came to know that Tanjil Sk. had been murdered. 5. P.W.15 deposed that on the night of the occurrence at about 10:30 p.m. he was proceeding towards a hotel to purchase bidi. He had Rs.20/- with him. On the way he met Rajesh (accused no.1). Rajesh demanded Rs.50/- from him. He showed Rajesh that he had Rs.20/- only. Rajesh demanded that money and then snatched that money from him. An altercation ensued and Rajesh started to assault him. The other two accused persons also started to assault him. At that time, he found one rickshaw was coming with a passenger. Rajesh asked the passenger and the rickshaw operator from where they were coming to which they replied they were coming from the house of Gour Ghosh. Then Rajesh tied a handkerchief around the throat of the person sitting in the rickshaw van and took him down from the van. Thereafter, they murdered that passenger with the handkerchief. He (P.W.15) was badly assaulted and one of his teeth was broken. He then became senseless. Upon regaining sense after two hours he found nobody at the spot. He identified the three accused persons in Court. 6. P.W.19 was the doctor who performed post mortem on the dead body of the victim. He deposed that on dissection he found severe cut injury on front neck, "electrical cut injury on the left side of chest five in number and one cut injury on left side of back." He did not found any other injury. According to him death was caused due to cardio respiratory failure due to shock and haemorrhage from the aforesaid injuries which were anti mortem and homicidal in nature. According to him death was caused due to cardio respiratory failure due to shock and haemorrhage from the aforesaid injuries which were anti mortem and homicidal in nature. He opined that the injuries might have been caused by knife. 7. We have considered the evidence on record, the contents of the judgment impugned before us, the appreciation of evidence by the Trial Court and identification of the accused persons in Court by the persons who were produced as eye witnesses. We have also looked into other facts and circumstances and consideration of the legal evidence by the Court of Sessions. Prima facie, we find that there are glaring inconsistencies in the evidence of the prosecution witnesses. While P.W.15 stated that the victim was throttled by handkerchief, as per the post mortem report, the death of the victim was caused by cut injuries on different parts of his body. According to the Doctor who conducted post mortem, such injuries might have been caused by knife. Further, P.W.13 identified only the accused no.1 in Court. He could not identify the other two persons including the present applicant. Further, he did not witness the murder of the victim. He presumably left the place of occurrence at being told to do so, since, he also stated in his evidence that subsequently, next morning at about 8:00 a.m. he came to know that Tanjil Sk. had been murdered. Hence, he cannot be considered to be an eye witness to the murder. 8. Smt. Amita Gaur appearing for the State opposed the present application. She submitted that since there were two eye witnesses, the appellants including the present applicant have no chance of acquittal. Hence, their sentence should not be suspended. 9. On an overall appreciation of the facts of the case and the evidence on record, we are of the opinion that, prima facie, there appears to be loopholes in the prosecution case and it cannot be said that the applicant/appellant has no chance of acquittal at the hearing of the appeal. However, this is only a prima facie view that we have taken only for the purpose of disposal of the present application. 10. We also notice that the applicant has been in judicial custody for more than eleven years since his conviction along with the other appellants in November, 2008. However, this is only a prima facie view that we have taken only for the purpose of disposal of the present application. 10. We also notice that the applicant has been in judicial custody for more than eleven years since his conviction along with the other appellants in November, 2008. One cannot say with any certainty when the appeal of the applicant will be heard. Keeping in mind, the principles of law laid down in this regard by the Hon'ble Supreme Court in Kashmira Singh v. State of Punjab, (1995) Supp4 SCC 558 and Angana & Anr. v. State of Rajasthan, (2009) 3 SCC 767 , we are of the view that ends of justice would be sub-served if the sentence imposed on the applicant in this application is suspended and he is granted bail pending disposal of the appeal on conditions which we indicate below. 11. Hence, CRAN 4452 of 2017 is allowed on the following terms: The applicant shall be released on bail upon furnishing a bond of Rs.10,000/- (Rupees Ten thousand) with two sureties of like amount, one of whom must be a local surety having landed property in the village where the applicant resides to the satisfaction of the Additional District and Sessions Judge, 3rd Fast Track Court, Berhampore, Murshidabad (the convicting Court) on condition that the applicant shall meet the Officer-in-Charge of the concerned police station once every month between 20th and the 25th starting from January, 2020 until further orders and he shall be personally present or be represented before this Court when the appeal is taken up for hearing. Let paper book be prepared, if not already prepared, within a period of four weeks from date. List the appeal as and when the same becomes ready for hearing. 12. CRAN 4452 of 2017 is accordingly disposed of. 13. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.