- (1.) The present application has been preferred by applicant-Moti Lal Sah, who is appellant no. 1 in the Criminal Appeal and original accused No. 1 in the Sessions Case No. 142 of 2006. The present application has been preferred under Section 389(1) of the Code of Criminal Procedure for suspension of sentence awarded to him by 1st Additional Sessions Judge, Raj Mahal, Sahibganj in Sessions Trial No. 142 of 2006 vide order dated 30th March, 2007 mainly for the offence punishable under Section 302 to be read with Section 149 of Indian Penal Code for life imprisonment and also for other offences. Having heard counsel for both the sides and looking to the evidences on record, there is, prima facie, case against this applicant. As, the Criminal Appeal is pending, we are not much analyzing the evidence on record, but, suffice it to say that:- (a) immediate is the First Information Report, the incident has taken place on 12.10.2005 and on the same day, within a couple of hours, First Information Report was lodged. (b) This applicant -- Moti Lal Sah is named in the First information Report. (c) The case of the prosecution is based upon several eye witnesses especially, upon P.W. 9, P.W. 10, P.W. 11, P.W. 15 and P.W. 16 Looking to the depositions of these eye witnesses it appears that they have clearly narrated the role played by this applicant. Weapon, alleged in hand of this applicant, is sharp cutting instrument. They have also stated that this applicant has caused injury upon the body of the deceased namely Kartik Pandit. These evidences are constituting a prima facie, case against this appellant. (d) The depositions of these eye witnesses are also getting further corroboration by other evidence on record especially by the deposition of P.W. 2, Doctor Dhirendra Kumar. There are injuries on the body which can be caused by sharp cutting instrument. (e) On earlier occasion, the prayer for suspension of sentence was rejected by this court vide order dated 15th January, 2008 and there is no change in the circumstance what so ever, thereafter.
(2.) Counsel appearing for the applicant submitted that other appellants namely, Chotka Hunsda (appellant No. 3) and Chunnu Rajwar (appellant No. 4) have been granted bait by suspending the sentence vide order dated 15th January, 2008 and vide order dated 1st August, 2011. We have perused these orders. Looking to the order dated 15 January, 2008, on earlier occasion, this Court has observed that as there was no specific allegation against appellant No. 4, Chunnu Rajwar, the bail was granted to him. Looking to the evidence given by P.W. 9, P.W. 10, P.W. 11, P.W. 15 and P.W. 16, there is specific allegation against this applicant who is Moti Lal Sah who is appellant No. 2 in this Criminal Appeal. Hence, we are not inclined to suspend the sentence awarded to him. Similarly, we have perused the order passed by this court vide order dated 1 August 2011. In this order also, there is a detail narration about the injury caused by Moti Lal Sah, present applicant, upon the body of the deceased. In the first paragraph of the said order, the role played by this applicant is also narrated by order dated 1st August, 2011. The second reason canvassed by the counsel for this applicant is that the appellant is in custody since October, 2005 and therefore, the sentence awarded to him be suspended. We are not agreeing with this contention that merely because he spent few years in jail, the sentence awarded to him should be suspended. All depend upon the evidence on record and the role played by this applicant in causing murder of the deceased. Looking to the evidences on record, the eye witnesses as stated herein above, have clearly given name of this applicant, the weapon in the hand of this applicant which is sharp and all have stated that he has caused injuries upon the body of the deceased which is also getting enough corroboration by the other evidences led by the prosecution. Counsel for the appellant has also submitted that there is no allegation by the eye witness that on which part of the body, the injury was caused by the applicant. We see no reason to suspend the sentence on this ground. There is no legal requirement that eye witnesses must specify the part of the body where injury was caused by this accused. Counsel for the appellant has argued the case at much length but we are not analyzing but suffice it to say looking to the evidence on recorded, there is a prima facie case against this applicant.
(3.) It has been held by the Hon'ble Supreme Court in the case of Khilari v. State of U.P. and another, 2008 AIR(SC) 1882 especially in paragraph 10, which reads as under: 10. In Anwari Begum v. Sher Mohammad and Anr., 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 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 Upadhyaya 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 & Anr., 2004 3 JT 442.;