D.N.PATEL, J. - (1.) THIS application has been preferred under Section 389 (2) of the Code of Criminal Procedure for suspension of sentence awarded to the appellant, namely, Bhagtu Mahto, who is original accused no. 2 in Sessions Trial No. 231 of 1994, mainly for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and has been punished for live imprisonment.
(2.) HAVING heard learned counsel appearing for both sides and looking to the evidences on record, there is a prima facie case against this appellantaccused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that the case of the prosecution is based upon more than one eyewitness, who are P.Ws. 7 and 8. One of the eyewitnesses is also an injured eye witness. Looking to their depositions, there is prima facie case against this appellantaccused. The deposition is also getting corroboration by the medical evidence, P.W. 13 (Doctor), who has carried out postmortem on the body of the deceased. In view of these evidences and also looking to the depositions of the other prosecution witnesses, the depositions of eyewitness is getting enough corroboration. Hence, looking to the prima facie case against this appellant and looking to the quantum of punishment and also looking to the gravity and accusation of the offence and the manner in which this appellant is involved in the offence as alleged by the prosecution and the fact that earlier, twice, the prayer for suspension of sentence was not granted by this Court and this is the third attempt and there is no change in the circumstance, except efflux of time and the period of custody, we see no substance in the prayer to suspend the sentence awarded to the appellant by the trial court. Earlier also prayer of suspension of sentence was rejected by this Court vide order dated 2542007. There is no change in circumstance after earlier rejection of prayer of suspension of sentence. Hence, the same is, hereby, rejected.
(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: "10. In Anwari Begum v. Sher Mohammad and Anr. [2005 (7) S.C.C. 326] it was, inter alia, observed as follows: "7. Even on a cursory perusal the High Court's 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) ;