Dhirubhai Naranbhai Patel, J. - (1.) PRESENT interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure by the sole appellant, namely Prayag Sao alias Prayag Shah, who is original accused No. 2, for his suspension of sentence, awarded by the trial Court. Having heard learned counsel for both the sides and looking to the evidences on record, it appears that there is, prima facie, a case against the present appellant. Previously also on two different occasions, prayers for suspension of sentence of the appellant were rejected by this Court, firstly on 26th April, 2011 in I.A. No. 580 of 2011 and secondly on 17th June, 2011 in I.A. No. 1027 of 2011.
(2.) LEARNED counsel for the appellant has argued out the case, at length, especially paragraph 28 of the deposition of P.W. 8, who is eye -witness of the incident. Learned counsel for the appellant submitted that P.W. 8 is a child and tutored witness and she has stated, whatever is conveyed by die police to her. This contention is not accepted by this Court mainly for the reason that on earlier occasion, same was the argument and it was observed by this Court while rejecting this argument vide order dated 26th April, 2011, which reads as under: ...........It is submitted that me appellant's involvement has come only on the basis of the evidence of PW8, who is a child witness, who has said in paragraph -28 of her evidence that whatever she was told by the police, she told in the Court and that, mere is discrepancy in the time and place of occurrence. We have gone through the evidence of PW8. She has specifically said that she was not tutored by the police and police told her to say whatever she saw. PW8 is an eye -witness to the alleged occurrence in which the deceased was killed by burning and this appellant is said to have put the deceased on fire. The evidence is to be read as a whole. In me circumstances, we are not inclined to grant bail to the appellant. Accordingly, his prayer for bail is rejected, I.A. is disposed of. Today also, same argument was canvassed and we have once again perused the deposition, given by P.W. 8. Looking to her cross -examination, it appears that she has clearly narrated the role played by the appellant -accused. Looking to the cross -examination of P.W. 8 especially paragraphs 6. 7 and 10 of cross -examination, we are not inclined to accept the argument canvassed by the learned counsel for the appellant because paragraph 28 cannot be read in isolation. It is a cardinal principle that whenever any witness is to be appreciated, he or she must be appreciated, as a whole. Suffice it to say that paragraph 28 of the deposition of P.W. 8, which is heavily relied upon by the learned counsel for the appellant and P.W. 8 is not a trustworthy witness, is not accepted by this Court, looking to the overall deposition of P.W. 8 and also looking to the several paragraphs of her cross -examination, as stated hereinabove. Moreover, there is also corroborating evidence on record, which supports the case of the prosecution and the deposition of P.W. 8. In this set of circumstance, looking to the gravity of offence, quantum of punishment and the manner in which the present appellant is involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence, awarded to the appellant.
(3.) LEARNED counsel for the appellant has also argued out about the advance age more than one F.I.R. etc. of me present appellant. We are not accepting this argument mainly for the following reasons: (a) if the offence is committed at an advanced age, this argument is not accepted by this Court. The date of the offence is 23rd September, 2008; (b) Looking to the depositions of eye -witnesses, it appears that grave and pivotal role was played by the appellant.;