Research › Search › Judgment

Calcutta High Court · body

2024 DIGILAW 1473 (CAL)

Krishnendu Bhattacharya v. State of West Bengal

2024-08-21

SOUMEN SEN, UDAY KUMAR

body2024
JUDGMENT : (Soumen Sen, J.) : 1. This is an application for suspension of sentence. The petitioners are in custody for nearly 10 years 8 months and 6 days as on 9th August, 2024 as revealed from the report filed by the jail Superintendent. 2. Their behavior was ‘good’ and they do not have any criminal antecedent. All of them are accused of murder of two persons Sujit and Shambhu. The learned Trial Court on the basis of the evidence of PW1 to PW5 along with other evidence has convicted them and sentenced them to life imprisonment. 3. The said accused persons are the appellants. 4. The appeal was filed in the year 2017. 5. Mr. Fazlur Rahman learned Counsel appearing on behalf of the appellant/applicant has submitted that in view of the long incarceration for more than 10 years and the appeal not being likely to be decided immediately in view of the decision of the Hon’ble Supreme Court in Saudan Singh v. State of U.P., 2022 SCC Online SC 697 the appellants are entitled to bail on terms and conditions as may be imposed by this Court. It is submitted that they were on bail during the period of trial and they did not misuse the liberty. Mr. Rahman has referred to paragraph 12 and 13 of the decision of the Hon’ble Supreme Court in Sunil Kumar v. Vipin Kumar, 2014 (8) SCC 868 in which it is stated: “12. On the other hand, while seeking bail for the Respondents before the High Court, the learned senior Counsel on behalf of the convicted Respondents contended that the convicted Respondents were on bail earlier but they did not misuse the liberty. It was also contended by the learned senior Counsel that the Respondents did not dispute the date, time and place of the incident. However, there was a different version of the incident according to them. 13. We have heard the rival legal contentions raised by both the parties. We are of the opinion that the High Court has rightly applied its discretionary power Under Section 389 of Code of Criminal Procedure to enlarge the Respondents on bail. Firstly, both the Criminal Appeal and Criminal Revision filed by both the parties are pending before the High Court which means that the convictions of the Respondents are not confirmed by the appellate court. Firstly, both the Criminal Appeal and Criminal Revision filed by both the parties are pending before the High Court which means that the convictions of the Respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the Respondents had been granted bail earlier and they did not misuse the liberty. Also, the Respondents had conceded to the occurrence of the incident though with a different version. 6. It is further submitted that in Kashmira Singh v. The State of Punjab, 1977 (4) SCC 291 , the Hon’ble Supreme Court has reiterated that when the appeal of the accused could not be disposed of within a reasonable measure of time and keeping in mind that any prolongation of detention is likely to affect his right under Article 21 of the Constitution of India as ultimately if he is found to be innocent the period of incarceration for an unduly long period would not be justified. 7. Mr. Rahaman has referred to two orders passed by the Hon’ble Supreme Court in Mahidul Molla v. State of West Bengal in Criminal Appeal No. 122 of 2019 dated 8th April, 2014 and Khokon Sardar & Anr. v. The State of West Bengal in Special Leave Petition Appeal (Criminal) 9262 of 2022, dated 6th July, 2023 on the same breath that in the event the Court is unable to dispose of the appeal within a reasonable time and the conduct of the appellant is good, the court may grant bail on such terms and conditions as the court may deem fit and proper. 8. Mr. Rahaman submitted that if the court is of the view that at this stage the appellant is required to make out a prima facie case for grant of bail there are glaring inconsistencies in the evidence of the witnesses of the prosecution which would establish absence of the appellants at the place of occurrence. It is submitted that the letter of the Municipal Corporation Dumdum dated 19th January, 2010 and 16th June, 2010 marked as Exbt. A and B respectively on admission and a certificate issued by Sudip Kumar Banerjee, Forests Station Officer, Maalgara Police Station dated 23rd June, 2011 marked as Exbt. C on admission would clearly show that there was no electricity post or street light adjacent to Badra Chasir Maath. A and B respectively on admission and a certificate issued by Sudip Kumar Banerjee, Forests Station Officer, Maalgara Police Station dated 23rd June, 2011 marked as Exbt. C on admission would clearly show that there was no electricity post or street light adjacent to Badra Chasir Maath. PW29 has stated that “there is no electric connection.” PW30 during the cross examination deposed that “on 27th January, 2009 there was no light post on platform no. 2 near the stairs approaching Badra Chasir Maath Road.” PW 9 Dr. Utpal Kumar Roy who has been declared hostile by the prosecution during the cross examination has deposed “There is no government light post or light arrangement on Sukanta Sarani till date.” He further deposed that the street was dark and he did not see anything. 9. It is submitted that the evidence of the investigating officer that there was no electricity in the field where alleged murder had taken place is corroborated by the Municipal record and the evidence of the witnesses of the municipality that there is no electrification in and around the field and that it was impossible for any of the eye witnesses to identify the assailants. 10. PW27 Investigating Officer deposed that on 27th January, 2009 "When I rushed to the spot there was no light." A few prosecution witnesses deposed that there was light at the time of incident but subsequently during the split trial they did not stick to their words and said that they had deposed under the pressure of the leadership. It clearly shows that there are serious inconsistencies in the statement of prosecution witnesses. If there was no light or insufficient light at the place of occurrence it is quite impossible to see who assaulted the deceased person. 11. Moreover, the Doctor PW 19 attached to Apollo Gleneagles Hospital, in his cross examination has stated that the injured Ashis Roy had informed him that the victim was allegedly attacked with lethal weapons by unknown number of persons which clearly suggest that Ashis Roy was not truthful during his cross examination at the trial. 11. Moreover, the Doctor PW 19 attached to Apollo Gleneagles Hospital, in his cross examination has stated that the injured Ashis Roy had informed him that the victim was allegedly attacked with lethal weapons by unknown number of persons which clearly suggest that Ashis Roy was not truthful during his cross examination at the trial. PW2, Ashis who claimed to be an injured witness and brought Sujit, the victim, to Apollo Gleneagles Hospital did not disclose the name of any assailant and that statement has been recorded in the register of Apollo Hospital is diametrically opposite to the statement made by PW4 Babu Bhattacharyya who took Shambhu another victim to Dum Dum Municipality Hospital. PW2 did not mention the name of the accused before PW19. All records and exhibited documents would reveal that none of the said two witnesses have implicated the accused persons before lodging FIR. 12. Mr. Rahaman has submitted that there is a lot of confusion with regard to the date of occurrence as there is overwriting in the FIR, as admitted by PW 16 the scribe of the complaint. The overwriting suggests that the FIR had come into existence much later than the time it is said to have been recorded mentioning the names of the present appellants along with others and has hence become a relevant factor, in view of the decision of the Hon’ble Supreme court in Balaka Singh & Ors. v. State of Punjab, 1975(4) SCC 511 (paragraph 5 to 8). It is further submitted that in the inquest report, the name of the accused persons have not been mentioned. 13. Mr. Rahaman has submitted that the learned Trial Court has relied heavily on the evidence of post occurrence witnesses whose evidence is in the nature of hearsay and no reliance could have been placed on the evidence of such post occurrence witnesses, in view of the decision of the Hon’ble Supreme Court in State of Rajasthan v. Teja Singh & Ors., 2001(3) SCC 147 and State of U.P. v. Wasif Haider & Ors., 2019 (2) SCC 303 paragraph 13 and 25. It is submitted that PW3, Sujoy Mondal and PW4, Babu Bhattacharyya during their cross-examination in the de novo trial have clearly stated that whatever they have stated in their examination-in-chief was the brain child of the discussion in their party office in which they were directed to implicate the present appellant along with two others for the murder of Sujit Dasgupta and Sandip Dasgupta. 14. Mr. Rahman has submitted that it is unbelievable that Arun Dasgupta the elder brother of Sambhu who was claimed to have been present at the place of occurrence and witnessed the assault on Sujit and Sambhu with ‘Hasua’ and ‘Bhojali’ (offending weapons) indiscriminately but he did not rush to save them which is extremely unusual and unnatural having regard to the relationship between Arun and Sambhu. 15. Mr. Rahaman has submitted that PW 27, Sub-inspector Subhashis Ghosh during his cross-examination has admitted to have prepared two different case diaries in the same case and had maintained angelic silence to the question whether he had prepared the 2nd Case Diary as per the direction of leaders of CPI(M) Party. 16. It is submitted that there are serious inconsistencies or glaring inconsistencies on the face of the record. In Hariom v. State of U.P., (2021) 4 SCC 345 , a three-judge Bench dealing with the death sentence on the basis of the eye witness who claimed that his mother, brother and sisters were murdered when he was in his house, declined to accept the version made by the witness due to glaring inconsistencies in paragraph 26 as follows: “Having culled out the essential features emerging from the record, it is difficult to place reliance upon the testimony of PW-5 Ujjawal and the said version cannot be made the basis of conviction of Hariom. It is true that assertion made by him that Hariom used to be a tenant in their house was supported by PW2 Om Pal Singh. Even if we accept that the accused Hariom was known face to PW-5 Ujjawal and the fact that incident occurred inside the house where the PW-5 Ujjawal would naturally be available, but on the issue whether he witnessed the incident, the glaring inconsistencies on record cannot be discarded..." Ultimately Hariom was acquitted. 17. Mr. Even if we accept that the accused Hariom was known face to PW-5 Ujjawal and the fact that incident occurred inside the house where the PW-5 Ujjawal would naturally be available, but on the issue whether he witnessed the incident, the glaring inconsistencies on record cannot be discarded..." Ultimately Hariom was acquitted. 17. Mr. Rahaman has referred to the index of the map forming part of the site plan and submitted that there is no mention of any bush in the site plan whereas PW 27 SI has claimed that pursuant to the disclosure statement of Khokan Bhattacharyya and Sibendu Bhattacharyya, he seized a blood stained Hasua from the bush near Durgapur Railway Station. 18. The absence of mention of any bush in the site map which creates serious doubt regarding the authenticity of prosecution case. Therefore, the benefit of doubt must be given to the accused. In the two cases of Singhara Singh v. State of Haryana, AIR 2004 SC 124 and Baldev Singh v. State of MP, AIR 2003 SC 298 the Hon'ble Apex Court made it clear that preparation of site plan is not merely a formality but it is an essential feature in order to reach a firm conclusion by the court in order to ascertain whether the offence has been committed by the accused or not. Since there is serious infirmity in the site plan as it does not indicate any bush from where the offending weapon had been recovered the prosecution has failed to prove the recovery of the offending weapons. In Baldev Singh (supra) the Hon'ble Apex court held in para 13 that "the site plan prepared by SHO Arvind Khare does not show the presence of cycle or the bushes. All that the site plan mentions is the place where from the two witnesses claim to have seen the incident”. 19. Mr. Rahaman has submitted the aforesaid discrepancies and inconsistencies in the evidence are sufficient to raise a serious doubt with regard to the involvement of the appellants in the crime. 20. Per contra Mrs. Anusua Sinha the learned APP appearing on behalf of the State has submitted that merely the fact of the appellants being in custody for over 10 years would not be a sole factor for suspension of sentence. The appellate court is required to take into consideration the gravity of the offence and the punishment it attracts. 20. Per contra Mrs. Anusua Sinha the learned APP appearing on behalf of the State has submitted that merely the fact of the appellants being in custody for over 10 years would not be a sole factor for suspension of sentence. The appellate court is required to take into consideration the gravity of the offence and the punishment it attracts. It is submitted that the conviction is based on the evidence of five eye witnesses who have seen the appellants/applicants physically assaulting the victims causing their death. The learned Counsel has also referred to the post-mortem report to show the cause of injury. 21. It is submitted that when the evidence is explicit with regard to the participation of the accused person in committing the murder, irrespective of the length of incarceration and the fact that they did not misuse their liberty while they were on bail during trial after being convicted on the basis of evidence, they cannot be enlarged on bail. However, it has been fairly submitted that considering the period of incarceration the appeal may be fixed for early hearing. 22. Mrs. Sinha has referred to a fairly recent decision of the Hon’ble Supreme Court in Shivani Tyagi v. State of U.P. and Anr., 2024 SCC Online SC 842 and submitted that in the said decision the Hon’ble Supreme Court has discussed the parameters for the exercise of power under Section 389 Cr.P.C. in paragraph 9 of the said report. 23. In so far as the deposition of two of the witnesses who have deposed contrary to their statements that led to the conviction of the present appellant it is submitted that their evidence cannot be of any relevance and significance in deciding the conviction of the present appellants. The evidence on record confined to this case is only required to be looked into, scrutinized and on consideration of such evidence the merits of the impugned order is to be decided. It is submitted that the law in this regard is well settled in a catena of decisions including a recent decision of the Hon’ble Supreme Court in A.T. Mydeen & Anr. It is submitted that the law in this regard is well settled in a catena of decisions including a recent decision of the Hon’ble Supreme Court in A.T. Mydeen & Anr. v. Assistant Commissioner, Custom Department, 2022(14) SCC 392 where the judgment of the High court was set aside on the ground that the High Court committed an error of law in dealing with the evidence of one trial for deciding both the appeals arising out of two separate trials. 24. It is submitted that the examination in chief and cross examination of the said two witnesses in the subsequent trial cannot be read into for the purpose of deciding the complicity and culpability of the present appellant/accused persons. The role of the each of the accused persons has been clearly stated by the said two witnesses in the trial that resulted in the conviction of the present appellants. The evidence of one trial can be read only for the purposes of the accused tried in that trial and cannot be used for any accused tried in separate trial as has been clearly observed and stated in paragraph 41 of the said judgment and accordingly the said evidence may not be of much value. 25. The limited issue with which we are presently concerned is whether the appellants are entitled to suspension of sentence considering the long incarceration of over ten years, their past conduct while they were on bail and their present conduct while they are in custody. Admittedly, they have not misused the bail conditions during trial and their conduct during incarceration was good. It is also a fact that they are in custody for over ten years and the appeal was not heard till this date although admitted in the year 2017. 26. It further appears that similar application for suspension of sentence was rejected on 24th August, 2017 with the following observation: “This is a case where two persons were killed and the case against them based on the evidence of five eye witnesses to the occurrence. Merely because one prosecution witness made some statement which may create doubt about their presence at the scene of occurrence, they confronting those eye witnesses with the evidence of such witness, which creates doubts about their presence cannot be discarded without giving them an opportunity to have their say in this regard. Merely because one prosecution witness made some statement which may create doubt about their presence at the scene of occurrence, they confronting those eye witnesses with the evidence of such witness, which creates doubts about their presence cannot be discarded without giving them an opportunity to have their say in this regard. We agree with the contention of the learned Counsel of the State that the defence ought to have cross-examined those eye witnesses after the examination of PW28 was over invoking Section 311 Cr.P.C. Having regards to above, we do not find any merits in this application and this application accordingly stands dismissed.” 27. It appears from the record that an application for suspension of sentence was filed in 2017 being CRAN 1580 of 2017, the said application was disposed of. However, subsequent applications have been filed seeking self same reliefs in which the coordinate Bench on 22nd February, 2024 noticing that the lower court records have been remitted to the trial court for trial of absconding accused directed the trial court to submit a report stating the time frame within which the trial court of absconding accused may be concluded. The matter was adjourned till 4th April, 2024. 28. It appears from the record that the matter was taken up again by the coordinate bench on 3rd May, 2024. While considering all the applications the coordinate Bench observed that there are overwhelming evidence implicating the appellants/applicants in the murder. The paper book could not be filed as the lower court records were transmitted to the trial court for trial of absconding accused. The department was directed to place the photocopy/ scanned copy of the lower court records on 21st June, 2024 when the prayer for bail would be considered upon perusal of the lower court records. The aforesaid direction was passed to ensure prompt hearing of the appeal. 29. The learned Additional Sessions Judge (Fast Track Court) submitted a report on 18th March, 2024 and the Inspector-in-charge Dum Dum Police Station also filed a report on 4th April, 2024. It appears from the reports that the present appellants were found guilty and convicted on 15th December, 2016. Sahidul Mondal was arrested and produced before the learned Court on 2nd April, 2016 and Amal Mridha arrested and produced on 23rd May, 2016. It appears from the reports that the present appellants were found guilty and convicted on 15th December, 2016. Sahidul Mondal was arrested and produced before the learned Court on 2nd April, 2016 and Amal Mridha arrested and produced on 23rd May, 2016. Thereafter on 20th September, 2016 charges against the said accused persons was framed and the trial court proceeded for de novo trial for these two accused persons. In pursuance of an order passed on 24th August, 2017 by the Hon’ble High Court in connection with CRA 60 of 2017 the original record was transmitted to the Hon’ble Court. On 12th February, 2018 the said application was disposed of with a direction upon the trial court to proceed with the trial against the two accused. De novo trial commenced on 5th April, 2018. The report filed by the inspector in charge shows that 30th April 2014 was fixed for de novo trial and for recording of the evidence of PW4 and PW6. The paper book filed contained depositions of the eye witnesses who have deposed earlier in the trial. It appears that on 25th June, 2024 PW 4 was examined and cross examined. However, we are in agreement with the submission of Mrs. Sinha, the learned APP that the evidence of the said witnesses in the de novo trial could not be of any relevance in deciding the culpability and complicity of the present appellants. The evidence recorded in the trial against the present appellants confining to the culpability of that accused is only required to be looked into and this aspect of the matter has been elaborately discussed in A.T. Mydeen (supra). 30. Section 389 of the Cr.P.C confers a discretionary jurisdiction upon the appellant court to enlarge the accused during the pendency of the appeal on conviction an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years. In the instant case, the appellants are convicted of an offence of murder and have been sentenced to life imprisonment. In the instant case, the appellants are convicted of an offence of murder and have been sentenced to life imprisonment. While the court may exercise a discretion liberally in favour of the accused in case of term sentence or a fixed tenure sentence taking into consideration that the convict may have completed almost half of the period of sentence and any other factors that may be relevant, in case of life imprisonment such liberal approach may result in doing injustice to the departed soul and may send a wrong message to the society. However, there may be exceptional circumstances even in cases of the life imprisonment where depending upon the age of the victim or any disability that convict has developed during incarceration or health conditions requiring continuous treatment the court may allow suspension of sentence on such terms and conditions as may be deem fit and proper. In fact, in Khokan Sardar (supra) the Hon’ble Supreme Court taking into consideration that the appellant no.1 Khokan is suffering from Tuberculosis and there is some debate on the question of involvement of appellant no.2 Abed Ali Sardar, granted bail during pendency of the appeal on the terms and conditions to be fixed by the trial court. 31. It thus follows that apart from the health conditions if it appears to the court that the appellant is able to raise sufficient doubt in the mind of the appellate court with regard to the nature and existence of complicity of the appellant in the commission of the alleged offence the appellate court may exercise such discretion in favour of the appellant. In a fairly recent decision in Shibraj Tyagi (supra) the Hon’ble Supreme Court considered the spectrum of Section 389 in paragraph 9 in which it is stated : “9. We have already referred to the mandate Under Section 389 Code of Criminal Procedure that the order passed invoking the said provision should reflect the reason for coming to the conclusion that the convicts are entitled to get suspended their sentence and consequential release on bail. We have already referred to the mandate Under Section 389 Code of Criminal Procedure that the order passed invoking the said provision should reflect the reason for coming to the conclusion that the convicts are entitled to get suspended their sentence and consequential release on bail. In the decision in State of Haryana v. Hasmat 2004:INSC:401 : (2004) 6 SCC 175 , this Court held that in an appeal against conviction involving serious offence like murder punishable Under Section 302, Indian Penal Code the prayer for suspension of sentence and grant of bail should be considered with reference to the relevant factors mentioned thereunder, though not exhaustively. On its perusal, we are of the opinion that factors like nature of the offence held to have committed, the manner of their commission, the gravity of the offence, and also the desirability of releasing the convict on bail are to be considered objectively and such consideration should reflect in the consequential order passed Under Section 389, Code of Criminal Procedure. It is also relevant to state that the mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power Under Section 389 Code of Criminal Procedure without referring to the relevant factors. We say so because there cannot be any doubt with respect to the position that disposal of appeals against conviction, (especially in cases where life imprisonment is imposed for serious offences), within a short span of time may not be possible in view of the number of pending cases. In such circumstances if it is said that disregarding the other relevant factors and parameters for the exercise of power Under Section 389, Code of Criminal Procedure, likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable. That certainly cannot be the legislative intention as can be seen from the phraseology in Section 389 Code of Criminal Procedure. Such an interpretation would also go against public interest and social security. In such cases giving preference over appeals where sentence is suspended, in the matter of hearing or adopting such other methods making an early hearing possible could be resorted. Such an interpretation would also go against public interest and social security. In such cases giving preference over appeals where sentence is suspended, in the matter of hearing or adopting such other methods making an early hearing possible could be resorted. We shall not be understood to have held that irrespective of inordinate delay in consideration of appeal and long incarceration undergone the power under the said provision cannot be invoked. In short, we are of the view that each case has to be examined on its own merits and based on the parameters, to find out whether the sentence imposed on the Appellant(s) concerned should be suspended during the pendency of the appeal and the Appellant(s) should be released on bail. 32. In a criminal trial the court is required to be extremely careful having regard to the fact that the convicted accused has lost the benefit of presumption of innocence post conviction. There is a delicate balance to be maintained between the freedom of life and free movement as envisaged under Article 21 of the Constitution and the gravity and impact of the offence on the society. In this regard it is apt to refer to the observation of the Hon’ble Supreme Court in Babu Singh v. State of UP, 1978 (1) SCC 579 wherein, it was observed as follows: “The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of the community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and the society affected.” 33. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and the society affected.” 33. What emanates from the decision of the Hon’ble Supreme Court, different High Courts and Section 389 of the Code is that the appellate Court is required to take into consideration the following factors in deciding an application for bail in connection with the appeal or suspension of sentence as the case may be: i) Prima facie grounds in appeal, ii) gravity of the offence, iii) circumstances under which such offence had taken place, iv) criminal antecedents, v) misuse of liberty and bail conditions during trial and pre-conviction if any. 34. The prima facie case would mean an arguable case on merit and existence of sufficient materials raising doubt with regard to commission of the offence by the accused. At the stage of suspension, it is not required for the appellate court to have a threadbare discussion on the evidence or a detailed scrutiny of the facts and evidence. It is sufficient if the court on the basis of the materials prima facie finds an arguable case on merit and likelihood of success in the appeal. 35. In view of the overwhelming evidence of the eye witnesses directly implicating the petitioners for the offence we are unable to suspend the sentence. 36. Moreover, we do not find any change of circumstances since the last order of rejection excepting that the petitioners are in custody for almost 7 years since the order of last rejection on 24th August, 2017 that was filed immediately after the appeal was admitted. 37. However, the views expressed are only prima facie. 38. All the applications for suspension of sentence and allied reliefs are dismissed. 39. Considering the anxiety expressed by Mr. Rahaman due to long incarcerations we direct the listing of the appeal as a specially fixed appeal on 18th September, 2024. 40. We request the learned Counsel for the parties to file written notes of argument on or before 6th September, 2024. I agree. (Uday Kumar, J.)