In Re : Masirul Sk. Vs

The appellant in CRA 789 of 2015 has filed the present application being CRAN 4 of 2019 (old CRAN No. 3559 of 2019) for suspension of sentence imposed by the learned court below that has convicted him of offences under Sections 302/34 of the Indian Penal Code. The learned court below has imposed the sentence of rigorous imprisonment for life with fine of Rs.10,000/-, in default, to suffer imprisonment for six months.

The prosecution case is that there was a long standing dispute in between the accused persons and one Rabban Ali.

On 8th June, 2012 at about 8 a.m. the accused persons set fire in the jute stacked in the house of Rabban Ali in a pre-planned way and when Rabiul

Islam raised protest against such act, an altercation took place and at that time the third accused, namely, Rafika Bibi handed over a hasua to the first

accused, namely, Tojammel Haque and the second accused, namely, Masirul Sk., being the appellant herein caught hold of the victim and then

Tojammel Haque gave several blows to the victim with hasua and the victim ultimately succumbed to his injuries.

Mr. Kar, learned advocate appearing for the appellant submits that there are contradictions in the testimonies of the witnesses. There is no clinching and convincing evidence against the appellant and he has been implicated since there was a long pending family dispute between the parties. A co-

ordinate bench of this court has suspended the sentence and granted bail to the principal accused, namely, Tujmul Haque @ Tojammel Haque by an order dated 4th February, 2020. The extent of involvement of the appellant in the alleged offence is much less compared to that of the principal

accused. The appellant was granted bail during trial and after delivery of the judgment he was taken into custody on 31st August, 2015.

Mr. Sur, learned advocate appearing for the State opposes the appellant’s prayer and submits that in view of the severity of the offence and the

strength of the prosecution case, this is not a fit case for suspension of sentence more so, when the appellant’s prayer was earlier rejected by

orders dated 10th January, 2017 and 29th June, 2018.

We have considered and assessed the quality of the evidence recorded by the trial court. Prima facie an element of sudden provocation in the occurrence cannot be ruled out and as such this may be an arguable case. The principal accused is Tujmul Haque @ Tojammel Haque and it appears from the judgment that the appellant herein was attributed a role of assisting Tujmul Haque. The extent of involvement of the appellant is less compared to that of the principal accused. The sentence of the principal accused has, however, been suspended by an order dated 4th February, 2020

passed by a co-ordinate bench of this court in CRA 64 of 2018 with CRAN 2815 of 2019 subsequent to rejection of the appellant’s prayer for

suspension of sentence on 10th January, 2017 and 29th June, 2018. The situation has, thus, changed with the passage of time.

Under such circumstances, we allow CRAN 4 of 2019 (old CRAN No. 3559 of 2019) and suspend the sentence and direct that the appellant shall be released on bail on furnishing bail bond of Rs.10,000/- with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Additional Chief Judicial Magistrate, Lalbagh, Murshidabad, and on further condition that the appellant shall meet the Officer-in-Charge of

Bhagwangola Police Station once in a month till disposal of the appeal and further that the appellant shall be personally present and be represented before this Court when the appeal is taken up for hearing.

The applications being CRAN 4 of 2019 (old CRAN No. 3559 of 2019) and CRAN 5 of 2020 are allowed.

All parties shall act on the server copies of this order duly downloaded from the official website of this Court.