Ayub Mian vs The State of Jharkhand

D.N. Patel, J.—The present interlocutory application has been preferred u/s 389(1) and (2) of the Code of Criminal Procedure for suspension of sentence, awarded by 1st Additional Sessions Judge, Jamtara dated 29th November, 2006 in Sessions Trial No. 56 of 2002/33 of 2003, whereby, the present appellant, who is original accused No. 2, has been punished for an offence punishable u/s 302 to be read with Section 34 of the Indian Penal Code for life imprisonment.

We have heard learned Counsel for the sides at length.

Learned Counsel for the appellant has argued out the case in detail and also submitted that previously on two occasions prayer for suspension of sentence of the appellant has been rejected by this Court and this is third attempt for getting suspension of sentence, awarded by the trial court to appellant-accused, mainly on the ground that other co-accused have been enlarged on bail, by suspending the sentence.

Looking to the evidences on record, there is prima facie case against the present appellant-accused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that:

(i) the date of incident is 7th November, 1995. Immediate is the First Information Report, wherein the present appellant (original accused No. 2) is named.

(ii) it also appears from the evidence on record that there are several eye witnesses of the incident. PW1 to PW7 are the eye witnesses of the incident.

(iii) it appears from the eye witnesses that they have clearly named the present appellant-accused. Weapon is also alleged to have been used by this appellant-accused. Looking to the deposition of PW6, the present appellant-accused has participated in causing the injuries upon the deceased.

(iv) Looking to the deposition of PW9, who is medical officer, has proved the postmortem report. There is enough corroboration by post mortem report to the depositions of the eye witnesses. Looking to the nature of injuries also, there is enough corroboration.

In view of these facts and looking to these evidences on record and looking to the gravity of offence, the quantum of punishment and the manner in which the present appellant-accused is involved in this offence, as alleged by the prosecution, we are not inclined to suspend the sentence, awarded to the present appellant.

Learned Counsel for the appellant-accused is also submitted that other co-accused has been enlarged on bail and it is submitted by the learned A.P.P. that the other co-accused i.e. original accused Nos. 1 and 3 were granted bail because of their advance age of 87 and 78 years, respectively. So far as the role played by the present appellant accused, we are fully satisfied that there is prima facie case against the present appellant-accused looking to the deposition of the eye witnesses, which is being corroborated by the medical evidence. At this stage of Section 389 of the Code of Criminal Procedure Code, there is prima facie case against the appellant-accused, which is sufficient for rejection of prayer for suspension of sentence of the present appellant-accused.

There is no substance in this interlocutory application and hence, the same is, hereby, dismissed.