D .N.PATEL,J - (1.) Present appeal has already been admitted by this Court vide order dated th November, 2012. Records and Proceedings of Sessions Trial No. 200 of 1998 was called for from the trial court so as to appreciate the argument for suspension of sentence.
(2.) RECORDS and proceedings of Sessions Trial No. 200 of 1998 has been received by this Court. We have heard learned counsel for both the sides and looking to the evidences of record, it appears that there is, prima facie, case against the present appellants -accused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that: (i) The case of the prosecution is based upon several eye witnesses, who are P.W.1, P.W.2 and P.W.5. P.W.5 is an informant and brother of the deceased. Incident has taken place on 22nd August, 1996 at about 07:00 a.m. and on the say day, F.I.R. was lodged. (ii) Looking the evidences of the eye witnesses, it appears that they have clearly narrated the role played by the appellants -accuses for causing murder of the deceased. Moreover, the depositions of the eye witnesses are getting enough corroboration by P.W.7, who is Dr. Rajendra Prasad Singh. Thus, evidences of the eye witnesses constitute prima facie case against the present appellants -accused. (iii) It is submitted by learned counsel for the appellants that the eye witnesses are relatives and though P.W.5 has narrated that he is injured eyewitness, injury certificate is not proved and the appellants have also sustained injuries. These contentions are not accepted by this Court, for suspension of sentence at this stage, mainly for the reason that the relatives, if are the eye witnesses, their depositions cannot be brushed aside only on this ground. Their depositions should be viewed with all circumspection. So far as injuries sustained by the appellants are concerned, it appears that another sessions trial case is going on in the trial court. (iv) At this stage, learned counsel for the appellants is insisting that one more contention may be recorded that there are only three injuries, whereas, five are the accused. This matching, at this stage, is also not helpful to the appellants because there is already charge under Section 149 of the Indian Penal Code and they have also been punished for the offence under Section 302 to be read with Section 149 of the Indian Penal Code.
(3.) IT has been held by the Hon'ble Supreme Court in the case of Khilari v. State of U.P. and another reported in AIR 2008 S.C. 1882 especially in paragraph 10, which reads as under: 2005 (7) S.C.C. 326] it was, inter alia, observed as follows: "7. Even on a cursory perusal the High Courts order shows complete nonapplication of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a mater of course. 8. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are : 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from non -application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. {(2002) 3 S.C.C. 598}; Puran etc. v. Rambilas and Anr. etc. {(2001)6 SCC 338)} and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. [JT 2004 (3) SC 442].  (Emphasis supplied) ;