D.N. Patel, J. - (1.) I .A. No. 540 of 2007.
(2.) COUNSEL appearing for the appellant submitted that earlier this I.A. was preferred for suspension of sentence upon which no order has been passed as yet and hence, fresh I.A. No. 1193 of 2012 has already been filed before this Court for the very same prayer. Hence, earlier I.A. No. 540 of 2007 is not pressed at this stage. In view of the submission, I.A. No. 540 of 2007 is disposed of as not pressed at this stage in light of fresh I.A. No. 1193 of 2012. 2. I.A. No. 540 of 2007 is disposed of.
(3.) THE present application has been preferred by the appellant under Sections 389(1) of the Code of Criminal Procedure for suspension of sentence awarded by the Addl. Sessions Judge, VIIth, F.T.C., Dhanbad, vide judgment of conviction and order of sentence dated 24th January, 2007, in Session Trial No. 608 of 1994, whereby the present appellant has been mainly punished for the offence punishable under Section 302 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 in favour of the present appellant. As the criminal appeal is pending, we are not much analyzing the evidence on record, but suffice it to say that the whole case of the prosecution is mainly based upon evidence given by P.W. -7, who is child witness, aged about 5 years as on date of incident. Moreover, it is contented by learned counsel for the appellant that homicidal death has not been proved by the prosecution. We have also perused the records and proceedings of Sessions Trial. Neither the doctor has been examined because there is no post -mortem at all of the dead body of the deceased nor even I.O. has been examined.;