- (1.) Both these appeals have been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence awarded to them by Sessions Judge-1st, Rajmahal, District-Sehibganj in Sessions Trial No. 80 of 2007 whereby they have been punished mainly for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code. We have heard the counsel for both the sides and perused the record and proceedings of Sessions Trial No. 80 of 2007.
(2.) Looking to the evidences on record, there is prima facie case against both these appellants-accused. The case of the prosecution is based upon several eye witnesses who are P.W. 1, P.W. 3, P.W. 4, P.W. 5 and P.W. 8. Their depositions are constituting a prima facie case against these appellants. The role played by these two appellants have been narrated clearly by these eye witnesses. Moreover, their depositions are getting further corroboration by P.W. 9 who is Doctor Madhurendra Nath Sinha who has carried out post mortem of the deceased. There are firearm injury upon the body of the deceased.
(3.) Counsel appearing for the appellant, Sanjay Mandal (appellant in Criminal Appeal No. 307 of 2012) has submitted that there is no allegation of causing injury by firearm upon this appellant-accused and therefore, sentence awarded to him may be suspended and he is also acquitted from the charge under Section 307 to be read with Section 34 of Indian Penal Code. We are not inclined to accept this contention for suspension of sentence awarded to him under Section 302 to be read with Section 34 of Indian Penal Code mainly for the reason that:-- (a) It is an allegation by the prosecution witnesses that all these appellants who are four in number and the present appellant is original accused No. 4 in Sessions Trial No. 80 of 2007 came together with firearms in their hand. (b) Also looking to the evidence of eye witnesses, these accused including the present appellant were abusing informant and they surrounded the deceased and caught him. (c) Accused Pramod Mandal and Arun Mandal have caused fire and the deceased sustained injury who has expired on the spot. (d) Thereafter, they all including the present appellant had run away from the place of scene of offence. Looking to the evidences on record prima facie it appears that the present appellant has come together with other co-accused with firearms. They have surrounded the deceased. Injuries have been caused by the co-accused upon the body of the deceased and he has run away together. Prima facie common intention has also been established by the depositions of the eye witnesses who are P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 8. Punishment to this appellant is under Section 302 to be read with Section 34 of Indian Penal Code, we are, therefore, not inclines to suspend the sentence awarded to this appellant. So far as Arun Mandal (appellant in Criminal Appeal No. 441 of 2012) is concerned, the depositions of aforesaid eye witnesses have clearly narrated the role played by this appellant. He came with a firearm with other co-accused, he assaulted and caused firearm injury upon the body of the deceased. Medical evidences corroborating thus the present appellant has caused fire arm injury upon the body of the deceased.;