Md. Sadaullah @ Sadab @ Nanka vs State of Jharkhand

D.N. Patel, J.—Present application I.A. (Cr.) No. 2589 of 2010, has been preferred u/s 389(1) of the Code of Criminal Procedure for getting suspension of sentence awarded by the 1st Additional Sessions Judge, Jamshedpur vide judgment and order of conviction dated 19.09.2008, whereby the present applicant was punished for the offence punishable u/s 302 read with Section 34 of the Indian Penal Code.

Having heard learned Counsel for both the sides and looking to the evidences on record, there is a, prima facie case, against the present Appellant-accused.

Counsel for the applicant has argued out the case in much detail, but as the criminal appeal is pending, we are not much analyzing the evidence on record. Suffice it to say, that looking to the deposition of the P.W.3, who is an eye-witness, there is a, prima facie case against the present applicant who has used fire-arm which is being also corroborated by the depositions of other prosecution-witnesses like P.W.4 and P.W.6, who rushed immediately upon hearing the sound of firing. There is also corroboration to the deposition of P.W.3, by the deposition of P.W.9, who is a doctor, who conducted post-mortem examination.

Moreover, previously the applicant preferred Interlocutory application No. 1783 of 2009, was dismissed by detail speaking order, dated 11.09.2009. Paragraph No. 3 of the said judgment reads as follows:

Learned Counsel for the Appellant-accused has argued out the case in detail including the acquittal in another case, but as the criminal appeal is pending, we are not much analyzing the evidence on record. Suffice it to say, that:

(I) looking to the whole incident, which has taken place on 07.05.2006 at 2.30 p.m. and immediately, the F.I.R. has been lodged.

(II) the Appellant-accused is named in the F.I.R.

(III) looking to the evidence of P.W. 3, there is a prima facie case against the Appellant-accused. P.W.3 is the wife of the deceased and the eye-witness of the whole incident. One of the co-accused called upon the husband of P.W.3 out of the house. She also followed her husband and ultimately, the Appellant-accused, namely, Md. Sadaullah @ Sadab @ Nanka fired upon her husband, who expired. Thus, P.W.3 is the eye-witness of the whole incident.

(IV) that her deposition is getting enough corroboration by other prosecution witnesses, who have rushed to the place of occurrence immediately. One of them is P.W.4 as well as other neighbours like P.W.6, have also heard the sound of firing. Thus, there is enough corroboration to the deposition of eye-witness and (V) that the deposition of eye-witness, P.W.3, is also getting enough corroboration by the deposition of medical evidence of P.W.9, who is Dr. Y. Nath.

In view of the aforesaid facts and evidences on record and also keeping in mind that thereafter also one more Interlocutory application was preferred bearing I.A. No. 2198 of 2009, which was also rejected vide order dated 11.02.2010.

Thus, this is a 3rd attempt and there is no change in the circumstances whatsoever and, therefore, looking to the gravity of the offence, quantum of punishment and the manner in which the present applicant is involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence of the applicant, awarded by the trial court.

There is no substance in the submission advance on behalf of the applicant-accused for suspending the sentence and hence, the aforesaid I.A. is hereby, dismissed.