Profulla Basak And Others vs State Of West Bengal

We have heard the learned Counsel for the applicant in CRAN 1274 of 2019 in CRA 172 of 2019, the learned Counsel for the applicant in CRAN 2687 of 2019 in CRA 232 of 2019 and the learned Government Advocates on behalf of the prosecution.

The captioned applications are filed in two independent appeals arising from Sessions Case No.10 of 2012 of the Court of the Additional Sessions Judge, Fast Track Court, Kalna. CRA 172 of 2019 is by Profulla Basak-accused no.1 and CRA 232 of 2019 is by Nitya Basak-accused no.2.

For the purpose of considering the applications for suspension of sentence pending appeal, the broad spectrum of the prosecution case noted by us is that the first accused, Profulla Basak, had a love affair and consequential intimacy, including physical, with the victim. She was around 18 years of age. Ultimately, she was found dead and the local people identified her wearing apparels. Investigation revealed that the person who was seen dead in this case, is the victim whose body was recovered. The prosecution case proceeded accusing Profulla Basak, the first accused, with acts that resulted in the strangulation of the victim. Based upon a statement given by the first accused, Nitya Basak, the second accused, was also brought on the array.

Without elaborating further on the evidence and inferences as are available on record, we may state that certain crucial factors which stand against the first accused, Profulla Basak, is the proved intimacy with the victim and the call details of the mobile phones of the first accused, Profulla Basak, and the victim and the explanation attempted to be given by the first accused that he had actually called the victim's father. This set of materials, alongwith the evidence that he was seen alongwith the victim, read along with the statement given by the first accused under Section 313 of the Criminal Procedure Code, were analyzed in a cohesive manner by the Court of Session, to hand down the conviction and sentence imposed on the first accused, Profulla Basak.

As regards the second accused Nitya Basak is concerned, he was implicated based on the so-called statement made by the first accused before the police. Whatever be the quality and evidentiary value of the statement of the co-accused and the extent to which it could be treated as an incriminating material as against the co-accused, the remaining evidence insofar as the second accused, Nitya Basak, is concerned, is that he was seen riding off along with the first accused on a motor cycle and that the first accused, Profulla Basak, took the victim to the house of the uncle of the second accused, Nitya Basak. There are certain other materials which the prosecution attempted to use to connect the second accused to the crime.

Looking at the appreciation of evidence by the Court below and its reasoning, we are of the view that this is a case where Profulla Basak, the first accused, who is appellant in CRA 172 of 2019 and applicant in CRAN 1274 of 2019 is not eligible to an order suspending the sentence imposed on him as of now.

CRAN 1274 of 2019 is accordingly rejected.

The totality of the facts, materials and legal evidence-on-record, having been assessed by us, we are of the view that the second accused, namely, Nitya Basak, is eligible to be granted an order suspending the sentence imposed on him.

Accordingly, we direct that pending hearing of the appeal, the order of execution of sentence in respect of the appellant, Nitya Basak, the applicant herein, shall remain stayed and the appellant be released on bail upon furnishing a bond of Rs.25,000/-(Rupees Twenty Five Thousand Only) with two sureties of Rs.12,500/- each, one of whom must be local, to the satisfaction of the learned Chief Judicial Magistrate, Purba Bardhaman.

This application being CRAN 2687 of 2019 is accordingly allowed.

Department will prepare paper books expeditiously.

Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.