Rafik Sk @ Rofik & Anr vs State

Re : CRAN 1482 of 2019

We have heard learned counsel for the appellants in this application for suspension of sentence. We have also heard learned counsel for the State.

Six persons were arraigned accusing them of having committed the murder of Habibur Rahaman. The Court below found them guilty for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. All of them have been handed down the penalty of rigorous imprisonment for life and to pay fine coupled with default sentence of imprisonment.

PW 10 is the owner of a tea-shop. The prosecution story unfolds with his statement that the victim and his son, PW 5, went over to the tea-shop of PW 10 at around 06-00 a.m. on the date of the incident; had tea and were standing outside the shop when seven persons came and dragged the victim to the other side of the road and attacked him with weapons which they had carried. The autopsy report of PW 12 coupled with the testimony of that doctor tends to show that there were incised wounds on the front and one side of the head and on the back as well as in some part of the lower limbs. The doctor's evidence, in our view, prima facie is apparently inconclusive about the nature of the weapons used inasmuch as according to the doctor, there are no penetrative weapon injuries, but incised injuries and there are no injuries with any blunt weapon though there are aberrations on the forehead and other parts of the body of the victim. Though the tea-shop owner, PW 10, has the version of seven assailants, the charge-sheet was laid as against six persons. The testimony of the son of the victim is that he did not attempt to save his father though he was present in the scene of occurrence. The material papers show that the scene of occurrence was on a metal road. The Court below also takes a view that no blood stained articles were recovered from the place of occurrence although apparently the body would have been dragged and removed to facilitate the movement of vehicles through the road. Yet, there is no recovery of any weapon. The conviction handed down by the Court below is surely on the basis of the testimony of PW 5, who is the son and PW 10, who is the tea shop owner.

We have read the entire deposition of those two persons. We have also noticed the statement of PW 6 recorded under Section 164 of the Code of Criminal Procedure. The materials on record clearly point out a strong prima facie case of likelihood of the appellants who are accused persons 4 and 6, namely, Rafik Sk @ Rofik and Rashid Sk respectively having the possibility of projecting an abundantly fit case for acquittal or for tapering down the offence charged against them. Both of them are in custody from the date of their arrest. On the whole, we are satisfied that this is a case where these appellants can be granted suspension of sentence on terms.

Accordingly, the appellants shall be released on bail on furnishing bail bonds of Rs.10,000/- each with two sureties of like amount each, one of whom must be local, to the satisfaction of learned Additional Chief Judicial Magistrate, Lalbagh, and on further condition that the appellants shall meet the Officer-in-Charge of the concerned police station once a month and further that the appellants shall be personally present before this Court when the appeal is taken up for hearing.

The Lower Court Records have arrived. Department is directed to prepare requisite number of paper books within a period of two weeks.

The application being CRAN 1482 of 2019 is, thus, disposed of.

Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.