D.N.PATEL.J. - (1.) PRESENT appeal has already been admitted by this Court vide order dated 7th November, 2012. Records and Proceedings of Sessions Case No. 03 of 2008 was called for from the trial Court so as to appreciate the argument for suspension of sentence.
(2.) RECORDS and proceedings of Sessions Case No. 03 of 2008 has been received by this Court. We have heard learned counsel for both the sides and perused the records and proceedings of Sessions Case No. 03 of 2008. Looking to the evidences on 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 incident has taken place on 25th April, 2007, F.I.R. was lodged immediately by PW 7, who is an informant and son of the deceased. The names of nine accused were also given in the F.I.R. and investigation was started. During the course of investigation. statements of several eyewitnesses have been recorded, who have also given names of these two appellants. (ii) Previously, charge -sheet was filed against nine accused persons and supplementary charge -sheet was filed against present two appellants, and therefore, case of nine accused persons was tried as Sessions Case No. 172 of 2007, whereas, case of present two appellants was tried as Sessions Case No. 03 of 2008. (iii) Looking to the evidences on record, it appears that there are several eye -witnesses of the incident. Looking to the depositions of the prosecution witnesses i.e. PW 1 to PW 9, it appears that there is prima facie, case against these two appellants -accused. The prosecution witnesses have clearly narrated the role played by these two appellants. Moreover, the depositions of these eye -Witnesses are getting enough corroboration to the medical evidence, given by PW 10 (Dr. Hiranmay Ghosh) as well as PW 11, who is the Investigating Officer of the case. (iv) The prayer for suspension of sentence of eight accused persons, who have also participated in causing murder of the deceased, namely, Sudhan Marandi, has been rejected by this Court vide order dated 10th December, 2012 in Cr. Appeal (DB) No. 883 of 2012. (v) Learned counsel for the appellants has argued out the case, at much length and has taken every possible contentions. We are not in agreement with all the contentions, raised by learned counsel for the appellants. As the criminal appeal is pending, we are not dealing with each and every arguments. It has been contended by learned counsel for the appellants that the eye -witnesses are, in fact, not eye -witnesses. Similarly, it is submitted that there is discrepancy between ocular evidence and medical evidence and these two appellants were not named in the F.I.R nor some of the witnesses have given the names of these two appellants before the police and learned counsel for the appellants has also relied upon the decision reported in 2010 (2) Eastern Criminal Cases 6 (SC). None of these arguments is useful to the appellants for suspension of sentence, because there are several eye -witnesses, who have given the names of these two appellants before the police. Moreover, argument of discrepancy between ocular evidence and medical evidence is also not acceptable mainly for the reason that looking to the evidences on record, it appears that the prosecution witnesses have clearly narrated the role played by these two appellants along with other co -accused and at the stage of suspension of sentence, we are not much analyzing that how the medical evidence is corroborative to the depositions of the eye -witnesses. The judgment, which is cited by learned counsel for the appellants, is also not helpful to the appellants because it propounds principle as to analysis of depositions of interested witnesses by the Court at the time of final hearing. The final hearing of this criminal appeal as well as Cr. Appeal (DB) No. 883 of 2012 is pending before this Court. (vi) It has been held by the Hon'ble Supreme Court in the case of Khilari v. State of V.P. and another, reported in AIR 2008 SC 1882 especially in paragraph 10, which reads as under : 2005 (7) SCC 326 it was, inter alia, observed as follows : "7. Even on a cursory perusal the High Court's order shows complete non -application 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 ban 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.
(3.) 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 SCC 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) (vii) It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and Anr., as reported in (2002) 9 SCC 366, in paragraph No.3, as under : "3. Absolutely no reason is shown by the learned Single Judge for adopting this exceptional course in a case where an accused was found guilty by the trial Court under Section 302 of the Indian Penal Code. The normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted." (Emphasis supplied) (viii) It has been held by the Honble Supreme Court in the case of State of Haryana v. Hasmat, as reported in (2004) 6 SCC 175, in paragraph Nos. 6 to 9, as under : "6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.;