D.N. PATEL, J. - (1.) I.A. No. 7657 of 2016 : This interlocutory application has been preferred under section 389 (1) of the Code of Criminal Procedure for suspension of sentence dated 5th December, 2011, awarded to applicants (original appellants) (Original accused No. 3 and 4), viz. Anant Mandal and Ishwar Mandal by 1st Additional District and Sessions Judge, Godda in S.C. No.211/ 2008/S.T.No.15/11, w hereby the concerned court directed the appellants to undergo imprisonment for life with fine of Rs. 5000/- each for the offence punishable under section 302/34 I.P.C..
(2.) Having heard counsel appearing for both sides and looking to the evidences on record, it appears that there is a prima-facie case against these applicants-appellants. As the criminal appeal is pending, we are not much inclined to analyse the evidences on record, but suffice it to say that P.W.13, who is the informant and eye-witness to the occurrence, has clearly narrated the role played by these two appellants. Moreover, looking to the evidences of P.W.1, 5 and 7, it appears that there is enough corroboration of the deposition given by P.W.13. Medical evidence is also corroborative of the depositions given by P.W.13. Moreover, previously also prayer for suspension of sentence was rejected by this court vide Order dated 17th September, 2012 and since then there is no change in circumstances except for passage of time. Paragraph 3,4 and 5 of the order dated 17th September, 2012 reads as under: "3. Having heard learned counsel for both the sides and looking to the evidences on record, it appears that there is, primafacie, case against the present appellants. As the criminal appeal is pending for final hearing, we are not much analysing the evidences on record, it appears that the father-informant(P.W.13) and sondeceased were sleeping in the same room. The accused came during night hours with weapons in their hands and assaulted the deceased, who was murdered on the spot . The role played by these two appellants was also narrated by the eyewitness, who is father-informant (P.W.13). Clearly, immediate is the F.I.R. i.e. on 30th June, 2008 at about 06.030 a.m. by P.W.13, who is the eyewitness. All the four accused including these two appellants were named in the F.I.R. The deposition of the eyewitness is getting enough corroboration by the deposition of P.W.1, P.W.5 and P.W.7, who have rushed immediately at the room, where, the incidence has taken place and they saw the accused including these two appellants running away. Moreover, medical evidence given by Dr. Dilip Kumar Choudhary (P.W.9) is also getting enough corroboration to the deposition of P.W.13, who is the eyewitness of the incident. Looking to these evidences on record, it appears that there is , prima facie, case against the present appellants. Moreover, looking to the gravity of the offence, quantum of punishment and the manner in which the present appellants are involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence awarded to the present appellants by the trial court. 4. Learned counsel for the appellants has vehemently submitted that the appellants have not caused any injury upon the body of the deceased and, therefore, the sentence awarded by the trial court may be suspended. This contention is not accepted by this Court mainly for the reason that these two appellants have played vital role in commissioning the murder of the deceased, as stated by the eyewitness. They have been punished for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code. Hence, the contention advanced by learned counsel for the appellants is not accepted by this Court. 5. In view of the aforesaid facts, there is no substance in the prayer for suspension of sentence and, hence, the same is not accepted by this Court."
(3.) Counsel appearing for the applicants has submitted that Appellant No.1, viz. Anant Mandal is aged more than 70 years. This contention alone is not useful for the purpose of suspension of sentence awarded to applicant-appellant Anant Mandal for the reason that if an offence is committed by an accused at an advanced age, then such an accused cannot take plea of advance age for his early release because his advance age neither makes the offence committed by him less punishable nor does it affect the quantum of punishment awarded to him. ;