- (1.) Present application [I.A.(Cr.) No. 1096 of 2010] has been preferred under Section 389(1) of the Code of Criminal Procedure for suspension of sentence awarded by the trial court by the judgment of conviction and order of sentence dated 5.12.2008 in Sessions Trial No. 200 of 2007 whereby the present applicant-accused No. 1 is convicted for an offence punishable under Section 302 of the Indian Penal Code for life imprisonment and also for the offence under Sections 147 and 148 of the Indian Penal Code for one year rigorous imprisonment.
(2.) We have heard learned Counsel for both the sides and looking to the evidence on record, there is a prima facie case against the Appellant-accused.
(3.) As the criminal appeal is pending for its final hearing, we are not much analyzing the evidence on record. Suffice it to say, that looking to the depositions of the P. Ws. 1, 2, 3, 5 and 6, who are the eye witnesses, there is sufficient evidences against the present applicant-accused. These witnesses have narrated in details the role played by the present applicant-accused in committing murder of the deceased. There is also enough corroboration by the deposition given by the P.W. 8 who is Dr. Zaffar Hassan. Previously also the prayer for suspension of sentence was dismissed by this Court by detailed speaking order dated 4th September, 2009 which is as follows: So far prayer for suspension of sentence, awarded by the trial court to the present Appellant, during pendency of this appeal, is concerned, having heard learned Counsel for both the sides and looking to the evidences of the prosecution witnesses, it appears that there is a prima facie case against the present Appellant-accused. Though it has been contended by the learned Counsel for the Appellant-accused, at length and in detail, as the criminal appeal is pending, we are not much analyzing the evidences on record. Suffice it to say that P. Ws. 1, 2, 3, 5 and 6 are the eye witnesses and looking to their depositions, it appears that there is a prima facie case against the Appellant-accused. Learned Counsel for the Appellant-accused has argued at length on the point of discrepancy between the ocular evidence and the medical evidence. Suffice it to say that all the aforesaid eye witnesses have stated that Initially the deceased was beaten by fists and slaps and subsequently, by hard and blunt portion of a weapon (Tangl) by the present Appellant and there is enough corroboration to these depositions by the medical evidence, given by P.W. 8. There are fractures of rib Nos. 3 and 4 and, therefore, we are not inclined to suspend the sentence, awarded to the present Appellant by the trial court Learned Counsel for the Appellant has also placed reliance upon an order dated 28th April, 2009, passed by this Court on I.A. No. 913 of 2009 in Cr. Appeal (D.B) No. 1401 of 2008, whereby, the sentence awarded to the original accused Nos. 4 and 5, have been suspended, during pendency of Cr. Appeal (D.B) No. 1401 of 2008. However, looking to the evidences of the aforesaid prosecution witnesses, it appears that the role played by the present Appellant-accused is quite different than those two Appellants-accused, whose sentence has been suspended by this Court. There are no marks of strangulation and, therefore, the benefit of suspension of sentence was given to original accused No. 5. But, looking to the specific allegation against the present Appellant-accused, corroborated by all the eye witnesses, and looking to the role played by the present Appellant-accused and looking to the gravity of offence and quantum of punishment, we are not Inclined to suspend the sentence, awarded to the present Appellant (original accused No. 1) by the trial court There is no substance in the prayer for suspension of sentence and, hence, the same is rejected.;