ORAL ORDER

(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

16-03-2026

Re:- I.A. No. 01 of 2026

1. This is an application filed on behalf of the appellant for suspension of sentence and releasing him on bail.

2. It is submitted by the learned Advocate for the appellant that the alleged incident took place on 19th February, 2020 at about 2.30/3:00 AM. The prosecution story is that the deceased alongwith one Deepak Kumar were sleeping in the said night on the terrace of their house. At about 2.30 AM at night, the mother of the deceased heard the sound of walking of some persons on the terrace. She climbed up to the terrace and seeing him the appellant tied her mouth by a towel and pushed her back then he fired at Rupesh Kumar. The associate of Rupesh namely Deepak Kumar, who was sleeping with him also resorted to firing upon Rupesh Kumar.

3. It is contended on behalf of the appellant that the FIR story ought to be considered with a pinch of salt because at the relevant point of time the informant was aged about 70 years. The record of the case further shows that police appeared at the spot on 19th February, 2020 at about 8:00/9:00 AM and the FIR was lodged after a lapse of about two hours. There is no explanation about the delay in lodging the FIR, moreover, the Incharge of the police station or the investigating officer sent the report of registration of the cognizable offence on the basis of the written complaint submitted by the informant after three days of occurrence. The I.O. could not produce any satisfactory explanation about such delay in lodging the FIR.

4. PW-2 is the daughter of the informant, who deposed that she did not hear any sound of walking on the terrace of their house because a loud speaker was going at a very high speech in their locality at the relevant point of time.

5. PW-3 Khusbu Kumari, who was the wife of the deceased. She was not in her matrimonial home on the date of occurrence, so it was not possible for her to throw any light over the incident.

6. PW-4 is the I.O. and PW-5 is the autopsy surgeon, who conducted PM Examination over the dead body of the deceased. It is pointed out by the learned Advocate for the appellant that the father and uncle of deceased were also staying in the same house but they did not come forward to support the prosecution case. It has come from the evidence of the witnesses that a CCTV was in working condition in the locality but the prosecution failed to produce any footage of the CCTV. The appellant took a specif alibi that on the date and time of occurrence he was staying at Araria, which is about 200/250 KM away from the place of occurrence. No investigation was made on such alibi by the I.O.

7. In view of the above mentioned material contradictions, it is submitted by learned Advocate for the appellant that the appellant is entitled to be released on bail.

8. Learned Advocate for the State, on the other hand, has raised vehement objection against the prayer for bail. It is submitted by him that the appellant was the history sheeter. Series of criminal cases were pending against him. There are political rivalry for long between the deceased and the appellant, therefore, he has raised objection against suspension of sentence and prayer of bail.

9. Having heard the learned Advocates for the appellant and respondent and on perusal of the materials on record as well as the impugned judgment, this Court likes to record at the outset that it is not the number of witnesses but the quality of witness that matters.

10. We are in agreement with the learned Advocate for the appellant that only the mother of deceased was considered as the eye-witness of the occurrence. Now, whether the evidence of the said eye-witness is of sterling quality or not is to be determined at the time of final hearing of the appeal.

11. Considering the materials in the trial court judgment, we are not inclined to suspend the sentence of the appellant and release him on bail.

12. Since, lower court record i