- (1.) THESE interlocutory applications have been preferred by original accused no. 1 and 4 (appellants in Cr. Appl (D.B.) No. 904 of 2008) and Original accused No. 2 (sole appellant in Cr. Appl (D.B.) No. 1009 of 2008 for suspension of sentence under section 389 of the Code of Criminal Procedure. These appellants and two others have been convicted vide order dated 19th June, 2008 by 1st Additional Sessions Judge, Jamshedpur in S.T. No. 363 of 2006 and they were sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 10,000/ - for the offence punishable under Section 302/34 of the Indian Penal Code for committing murder of one Shri Nand Kishore @ Nandu @ Purnendu.
(2.) THIS court has received the record and proceedings of S.T. No. 363 of 2006. We have perused the record and proceedings of the said sessions trial and after hearing counsel for both sides, including counsel for the informant and looking to the evidences on record, it appears that there is prima -facie case against these appellants. As the criminal appeals are pending, we are not much inclined to analyse the evidences on record, but suffice it to say that there are several eye witnesses to the incident in question. They are P.W.1, P.W.2, P.W. 3 P.W.4 and P.W.7 and looking to their depositions, it appears that they have clearly narrated the role played by these appellants in the offence. Moreover, their depositions are getting enough corroboration from the medical evidence given by P.W. 5 Dr. J. Srinivas Rao. There are more than one bullet injury upon body of the deceased. Even looking to the depositions given by P.W.7 and P.W.9, few empty cartridges were also collected from the place of occurrence. From perusal of the depositions of the eye witnesses, it is apparent that they knew the accused persons and there is no question of mistaken identity whatsoever. Thus, looking to the deposition of the aforesaid witnesses, there is a prima -facie case against these appellants, namely Prabir Pradhan @ Pravir Pradhan and Amit Dubey (appellants in Cr.Appeal (D.B.) No. 904 of 2008) and Ravi Singh @ Ravi (appellant in Cr. Appeal No. 1009 of 2008) .
(3.) THEREFORE , taking into consideration the gravity of offence, quantum of punishment and the manner in which the appellants are involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence awarded by the trial court to the present appellant -accused. Counsel for the appellants have argued out the case on the ground of parity for the reason that one of the accused persons, who is original accused no. 5 of S.T. Case No. 363 of 2006, namely Sanjay Singh, has filed Cr. Appeal (D.B.) No. 822 of 2008 and his prayer for suspension of sentence was allowed by this court vide order dated 1st October, 2013. Counsel for the appellants has argued out at length on the ground of parity stating that the prayer for suspension of sentence of original accused no. 5, namely Sanjay Singh, was allowed on the ground that although the allegation of firing is against five persons, but only three gun shot injuries were found on the person of the deceased. This contention is not accepted by this court mainly for the reason that on perusal of the deposition of P.W. 1, P.W. 2, P.W.3, P.W. 4 and P.W.7, it appears that they have clearly stated that all the accused persons came together and opened fire upon the deceased. On perusal of paragraph no. 1 of the deposition of P.W.1, paragraph No. 1 and 2 of the deposition of P.W. 4 and paragraph No. 2 of the deposition of P.W. 7, it appears that these witnesses have clearly stated that all the five persons have opened fire at the deceased and apart from that few shots were also fired in the air by all of them. Therefore, from their deposition it appears that all the five persons fired at the deceased and it is only a matter of chance that the deceased sustained only three bullet injuries. Further, On perusal of evidences of other eye witnesses, it becomes apparent that appellant accused Praveer Pradhan has called the deceased and opened fire at him and thereafter, Biju (appellant of Criminal Appeal (D.B.) No. 211 of 2009) also fired at the deceased. Prayer for suspension of sentence made on behalf of Biju was rejected by this court on 16th March, 2011. Moreover, looking to the narration of the whole incident by the eye witnesses, prima -facie, it appears that there was a common intention to kill the deceased. Moreover, the prayer for suspension of sentence of original accused no. 5 Sanjay Singh (Appellant in Cr. Appeal (D.B.) No. 822 of 2008 )was also rejected twice, i.e. on 20th August, 2008 and thereafter, again on 6th May, 2010, before it was allowed finally vide order dated 1st October, 2013 in I.A. No. 817 of 2012 mainly on 'facts and circumstances of the case' and 'period of custody' among other grounds. On perusal of the evidences given by P.W.1, P.W. 2, P.W.3,P.W. 4 and P.W. 7, there is prima -facie case against these appellant accused that they came with fire arms and opened fire. Deceased sustained three bullet injuries as per medical evidence given by P.W. 5 Dr. Srinivas Rao. There were firing in the air also and therefore, contention of the counsel for the appellants regarding number of accused persons and number of bullet injuries is not accepted. Counsel for the appellants has also submitted that the S.T.D. Booth owner was not examined and only two empty cartridges were recovered from the place of occurrence. This contention is also not helpful to the appellants at this stage of suspension of sentence.;