Sujoy Mitra vs State of West Bengal & Anr

This is an application for bail under Section 389 of the Criminal Procedure Code, 1973 for suspension of the judgement of conviction dated January 19,

2018 and order of sentence dated January 10, 2018 passed by the learned Additional Sessions Judge, 8th Court, Alipore, South 24-Parganas in

Sessions Trial No. 1(8) of 2014, which corresponds to Sessions Case No. 1(10) of 2013, convicting thereby the appellant for commission of offence

punishable under Section 376(1) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.

2,00,000/- in default to suffer simple imprisonment for a further period of one year, inter alia, on the grounds stated in the petition.

The appellant was placed on trial before the learned trial Court to answer to charges for commission of offences punishable under Section 376(1) of

the Indian Penal Code in connection with Sessions Trial No. 1 (8) of 2014, which corresponds to Sessions Case No. 1(10) of 2013, arising out of

Kalighat Police Station Case No. 164 dated June 1, 2013. The petitioner states that he has very good and arguable case and has a fair chance of

success if the aforesaid appeal is heard out on merits.

I have heard the learned advocate for the petitioner/appellant and also the learned advocate for the State who has invited my attention to the

deposition of the victim girl, PW-5 who has deposed through video conference. I have gone through the impugned judgement. It is submitted by Mr.

Sandipan Ganguly, learned advocate appearing for the petitioner/appellant that the victim on the alleged date of occurrence went to the house of the

accused in the night on the alleged date of occurrence and stayed there till the rest of the night and there was no resistance alleged made by her when

allegedly she was subjected to sexual assault rather she slept overnight and when she left the premises in the morning searching for a taxi she did not

raise any hue and cry in the locality.

It is pointed out that the conviction and sentence are based on a finding exclusively on the evidence of the victim girl and on the basis of the medical

examination. Medical evidence is not the evidence rather is the opinion evidence. My attention is adverted to the medical report on the alleged date of

occurrence. She was examined by a doctor of SSKM hospital medically. In the medical report there was no trace of blood and there was no tear of

hymen, no wound found on her private part or any part of her body.

At the time of first medical examination a scratch was seen save and except scratch mark on the back but without any observation as to the age of

that scratch mark and without any external signs of injury on the private part. The victim was allegedly examined on the second time on June 7, 2017

when scratch abrasions were seen on right and left thigh bruise on the knee antero-media yellowish green in colour. There appears an arguable case

in this appeal. It is pertinent to take note of the fact that the accused/appellant was arrested on June 2, 2013 so the accused/appellant has already

undergone incarceration in jail for a period of 5 years and 2 months and the remission period taken custody, undergone by him would be six years in

jail.

In support of the argument Mr. Ganguly has referred to a decision in the case of Bhagwan Rama Shinde Gosai & Ors. v. State of Gujarat, reported in

1999 C Cr LR(SC) 247 wherein the Hon’ble Apex Court held that :-

“ When a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can

be considered by the appellate Court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against

suspension of sentence it is a different matter. Similarly, when sentence is life imprisonment the consideration for suspension of sentence could be of a

different approach.â€​

Secondly, Mr. Ganguly has referred to a decision in the case of Kiran Kumar v. State of M.P, reported in 2001 C Cr LR(SC) 6 wherein the

Hon’ble Apex Court held that :-

“When a person is convicted and sentenced to a short term imprisonment the normal rule is that when his appeal is pending the sentence should be

suspended and rejection is only by way of exception and reason be put forward for such rejection. In such case also every endeavour should be made

to have the appeal posted for early hearing and disposal. If the short-term sentence is allowed to run out during the pendency of the appeal, the appeal

itself will become, for all practical purposes, infructuous so far as the appellant is concerned. It does not mean that the Appellate Court should suspend

the sentence, if its consequence would be dangerous to the society or any other similar difficulties.†In the case of Kamal v. State of Haryana,

reported in (2006) 1 SCC (Cri) 757 wherein the Hon’ble Apex Court held that:-

“ This is a case in which the appellant has been convicted under Section 304-B IPC and sentenced to imprisonment for 7 years. It appears that so

far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal

before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has

already served a substantial period of the sentence.â€​

In the case of Salim Javed v. State of Rajasthan, reported in (2006) 3 Supreme Court Cases (Crl.) 354 wherein the Hon’ble Apex Court held that:

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“ The appellant has been sentenced to undergo 7 years’ rigorous imprisonment for the offence punishable under Section 304B IPC and 2

years’ RI with a fine of Rs.500/- for an offence punishable under Section 498A IPC. The appellant’s appeal is pending in the High Court. His

submission is that there is no chance of his appeal being heard in the near future. The appellant has already suffered sentence of 3 years and 6

months. In these circumstances, we allow this appeal and direct that the appellant shall be released on bail on his furnishing bail bond and surety to the

satisfaction of the trial Court.â€​

In respectful consideration of the observation in the facts and circumstances of the case in judgements cited above authored by the Hon’ble Apex

Court and further in consideration of the arguable case of the appellant, this Court inclined to enlarge on bail on furnishing a bond of Rs.10,000/- with

two sureties of Rs.5,000/- each, one of whom must be a local subject to the satisfaction of the learned Chief Judicial Magistrate, Alipore, South 24-

Parganas. Thus, CRAN 1657 of 2018 stands disposed of. Urgent xerox certified copy of this order, if applied for, be given to the parties after

completion of all legal formalities.