- (1.) THIS interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence awarded to the appellant by the Sessions Judge, Dhanbad in Sessions Trial No. 204 of 2010, whereby, the appellant has been convicted for the offences punishable under Section 302 of the Indian Penal Code for causing murder of Nishant Kumar @ Kundan Singh and this appellant has been awarded punishment for life imprisonment and fine of Rs. 10,000/ - and in case of default of payment of fine, he has further been ordered to undergo rigorous imprisonment for six months.
(2.) THIS Court has received the records and proceedings of Sessions Trial No. 204 of 2010 and we have perused the same and heard the learned counsel for the appellant as well as learned A.P.P. and learned counsel for the informant, at length.
(3.) LOOKING to the evidences on record, there is prima facie case against this appellant -accused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that : - (i) The case of the prosecution is based upon more than one eye witnesses, who are P.W. - 1, P.W. - 2 and P.W. - 3 and looking to their deposition, they have clearly narrated the role played by this appellant -accused in causing murder by using firearm. (ii) Looking to the evidence given by P.W. - 4 Dr. Shailendra Kumar, who has carried out the postmortem of the body of the deceased, it appears that his deposition is getting enough corroboration to the deposition given by the eye witnesses. (iii) Looking to the deposition given by the Investigating Officer i.e. P.W. 11, there is corroboration to the deposition given by the eye witness. (iv) Learned counsel appearing for the appellant has argued the case at length and raised several points including that so called eye witness is not eye witness, at all and the firearm, which is alleged to have been used and seized during course of investigation and the cartridges, which were seized during the course of investigation were never sent to the Forensic Science Laboratory and there is no evidence that the said firearm was ever used. This contention raised by the learned counsel for the appellant is not accepted at the stage of suspension of sentence under Section 389 of the Code of Criminal Procedure mainly for the reasons that: -4 (a) There was recovery of firearm and cartridges, as per the seizure list, which has been proved and marked as Exts. - 10 and 12 (as submitted by the learned counsel for the appellant as well as by the learned A.P.P. and learned counsel for the informant). (b) Benefit of fortify investigation or defective investigation cannot be given to the accused. Here the seizure articles were not sent to the Forensic Science Laboratory by the Investigating Officer, that error committed by the investigating agency does not render the eye witnesses, who are P.Ws. - 1, 2 and 3 untrustworthy and unreliable, if they are otherwise trustworthy and reliable witnesses, lethargic Investigating Officer cannot convert trustworthy witnesses into untrustworthy witnesses and therefore, at this stage, no benefit can be given to the accused because lethargic Investigating Officer has not sent the firearm and cartridges to the Forensic Science Laboratory for report. (c) Looking to the cross examination of the P.Ws. - 1, 2, and 3 i.e. eye witnesses, prima facie there is involvement of this appellant -accused in causing murder of the deceased and prima facie nothing has come out in favour of this appellant -accused from the cross examination of these eye witnesses. For the aforesaid reasons, we are not inclined to accept the defence of the learned counsel for the appellant as the firearm and cartridges were not matched properly and usage thereof is also not proved and therefore, the sentence awarded to this appellant -accused may be suspended. This contention is devoid of any merit. There are several other reasons for discarding this argument, but, as the criminal appeal is pending, we are not putting further dissection of the evidence on record.;