Shri Keshab Mistry v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CRM(SB)/6/2023 With CRA(SB)/8/2022 Shri Keshab Mistry ...Appellant Vs.

The State ... Respondent Mrs. Shipra Mandal ... for the Appellant Ms. A.S. Zinu ... for the Respondent June 27, 2023 [M.A.Mobin] Item Nos.2 & 3 This is an application under Section 389 of the Criminal Procedure Code filed by the appellant for suspension of sentence and bail.

The prosecution case in brief is that on 12th June, 2016 while the complainant Ranjit Munda was sleeping in his house at about 20.00 hours at that time the accused came to his house with a proposal for selling a piece of land and he also offered a commission to the complainant. In the midst of such conversation, the victim-injured, Chiranjit Minj came to the house of the complainant with a stick in his hand and tried to assault Keshab Mistry (Appellant herein). The appellant ran out from the house of the complainant and he was followed by Chiranjit Minj (victiminjured). The complainant followed both of them and thereafter found that Keshab Mistry assaulted the injured on his head by a

spade and ran away from the spot. The victim injured after such occurrence was treated medically. A complaint was lodged and case was initiated. Upon completion of the trial the accused has been convicted under Section 326 of the Indian Penal Code. Ms. Shipra Mandal, learned Counsel for the Appellantpetitioner submits that there is contradiction in the date and time of occurrence as revealing from the evidence of PW2 (injuredvictim). The entire incident has taken place due to provocation on the part of the victim-injured who as per prosecution case chased the accused with a stick. She further submits that at best the conviction could be under Section 335 of the Indian Penal Code. The other supporting witnesses of the prosecution are contrary to each other, the benefit of which should be extended to the appellant-petitioner.

Furthermore, she submits that during trial the appellant was granted bail after more than two years and in all he has already undergone 31⁄2 years of incarceration. More so, the appellant do not have any criminal antecedent and has dependent aged father in his house. In light of her aforesaid submission she prays for suspension of sentence and enlarging the appellantpetitioner on bail on any terms and conditions. In reply to the contention raised on behalf of the appellantpetitioner, Ms. A.S. Zinu, learned Counsel for the State-respondent submits that there are categorical statements of the complainant as well as the victim of such assault inflicted upon the victim by the appellant. The ocular evidence has been duly supported by the medical evidence adduced on behalf of the prosecution.

statement of the accused. She further submits that there are no evidence of any previous animosity between the victim and the accused. In view of her aforesaid submission she prays that the prayer for suspension of sentence and enlargement of the appellant on bail be dismissed.

The injured-victim, PW2 in his evidence has categorically stated that on the date of occurrence at 7 p.m. the appellant Keshab Mistry assaulted him on his head by a spade. He sustained bleeding injuries. The history of injury report (Exhibit 14) and statement of the victim under Section 164 Cr.PC (Exhibit 13) is corroborative of the evidence of the injured that the assailant was the appellant. The medical evidence of PW3, PW14, PW15 and medical documents shows that the victim sustained grievous head injury. The evidence of PW1(Complainant) also lends support to the fact that the victim sustained bleeding injury on his head. The weapon of assault has been recovered leading to the statement of the appellant (Exhibit10). The ocular evidence is supported by the medical evidence.

Considering the above materials I do not find any merit in the application for suspension of sentence and prayer for bail of the petitioner-Appellant. Hence it stands dismissed. CRM(SB)6 of 2023 stands disposed of.

Department is directed to prepare the paper books. List the appeal for hearing before the next available Circuit Bench as soon as the paper books are prepared. (Bivas Pattanayak, J.)