CRIMINAL APPEAL 558 of 2009 on 5 September 2009

1. The present interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence, awarded by the 1st Additional Sessions Judge, Garhwa in Sessions Trial No. 45 of 2002 whereby, the present appellant, has been convicted mainly for the offence under Section 302 to be read with Section 34 and 201 of the Indian Penal Code and punished for life imprisonment.

2. Having heard counsels for both the sides and looking to the evidences on record especially of P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6, there is a 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 looking to the aforesaid evidences, there is prima facie case against this appellant.

3. Previously also, twice the prayers for suspension of sentence of this appellant were rejected by this Court vide orders dated:

(a) 5th September, 2009 by a detailed speaking; (b)23rd August, 2010 while dismissing I.A. No. 597 of 2010;(b)23rd August, 2010 while dismissing I.A. No. 597 of 2010; After the aforesaid rejection of the prayers for suspension of sentence, there is no change in circumstance whatsoever except efflux of time.

4. Paragraph no.3 of the order, passed by this Court dated 5th September, 2009, while rejecting the prayer for suspension of sentence, reads as under:

“3. As the criminal appeal is pending, we are not much analyzing the evidence on record. Looking to the depositions, given by P.W.-1, P.W.-2, P.W.-4, P.W.-5 and P.W.-6 (informant-wife of the deceased), it appears that there is a prima facie case against the appellant-accused. Suffice it to say that:- (a) both, clothes and skeleton have been identified by the prosecution witnesses;prosecution witnesses; (b) P.W.-6 (the informant-wife of the deceased) has stated clearly right from the F.I.R. itself that though her husband was denying to go with the appellant-accused, they have insisted and ultimately took away her husband and, thereafter, whereabout of the deceased, was not known to the P.W.-6 and she has informed her father-in-law etc. about the fact that her husband has not returned;(c) P.W.-1 and P.W.-5 have seen the deceased in the company of the appellant-accused and they were going to the forest, ultimately the skeleton of deceased was found out from forest area along with identity card, clothes etc.;(d)looking to the deposition of P.W.-6, motive is also established by the prosecution that before few days, P.W.-6 was molested by the appellant-accused, which was seen by her husband-deceased and there was hot altercation also.”

5. Counsel for the appellant has also relied upon the fact that co-convict viz. Sharvan Thakur, has been enlarged on bail by suspension of sentence vide order dated 8th March, 2010 in Cr. Appeal No. 633 of 2009. When this Court asked a question that on what ground and on what reason the bail was granted, counsel for the appellant is unable to read any reason from the aforesaid order.

6. In view of these facts and looking to the prima facie case, gravity of offence, quantum of punishment, we are not inclined to suspend the sentence, awarded by the trial court, to the present appellant-accused. There is no substance in this interlocutory application and hence, the same is hereby, dismissed.

(D.N. Patel, J.)

(Amitav K. Gupta J.)

VK