D.N.PATEL,J. - (1.) I.A. No.2360 of 2014 : This interlocutory application has been preferred under section 389 of the Code of Criminal Procedure by appellant no.2 Murli Giri. He has been convicted by Additional Sessions Judge-I, Bermo at Tenughat in Session Trial No.200 of 1998 mainly for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 149 thereof as well as under other Sections of the India Penal Code as well as under Section 27 of the Arms Act. All the sentences have been ordered to run concurrently and they have been merged in the life imprisonment.
(2.) Having heard learned counsel for both the sides and looking to the evidences on record, there is a prima facie case against this applicant-Murli Giri (Appellant No.2). As the criminal appeal is pending, we are not much analysing the evidences on record, but, suffice it to say that looking to the depositions given by P.W.1, P.W.2 and P.W.5 to be read with the medical evidence given by P.W.7, there is a prima facie case against this applicant-accused. The case of the prosecution is based upon more than one eyewitnesses who are P.W.1, P.W.2 and P.W.5.
(3.) Learned counsel appearing for the appellant no.2 submitted that there is no much vital role played by this appellant. Looking to the depositions given by the eye-witnesses, this applicant has caused any injury upon the body of the deceased and hence, he may be enlarged on bail by suspending the sentence. We are in agreement with this contention mainly for the reason that looking to the totality of the circumstances on record on the basis of the depositions of eye-witnesses P.W.1, P.W.2 and P.W.5 and looking to the gravity of the offence and also looking to the fact that appellant no.2 has also been convicted under Section 307 of the Indian Penal Code for 7 years and also looking to the fact that there is conviction under Section 148 of the Indian Penal Code and also there are direct allegations against this applicant as he was part and parcel of unlawful assembly and there is conviction under Section 302 of the Indian Penal Code to be read with Section 149 thereof. We are inclined to suspend the sentence awarded to this applicant by the learned trial court. Previously also, the prayer for suspension of sentence has been rejected by detailed speaking order dated 19th December, 2012. Paragraph No.3 thereof reads as under: "3. We have heard learned counsel for both the sides and looking to the evidences of record, it appears that there is, prima facie, case against the present appellants-accused. As the criminal appeal is pending, we are much analysing the evidences on record, but, suffice it to say that: (i) The case of the prosecution is based upon several eye witnesses, who are P.W.1, P.W.2 and P.W.5. P.W.5 is an informant and brother of the deceased. Incident has taken place on 22nd August, 1996 at about 07:00 a.m. and on the say day, F.I.R. was lodged. (ii) Looking the evidences of the eye witnesses, it appears that they have clearly narrated the role played by the appellants-accuses for causing murder of the deceased. Moreover, the depositions of the eye witnesses are getting enough corroboration by P.W.7, who is Dr. Rajendra Prasad Singh. Thus, evidences of the eye witnesses constitute prima facie case against the present appellants-accused. (iii) It is submitted by learned counsel for the appellants that the eye witnesses are relatives and though P.W.5 has narrated that he is injured eyewitness, injury certificate is proved and the appellants have also sustained injuries. These contentions are accepted by this Court, for suspension of sentence at this stage, mainly for the reason that the relatives, if are the eye witnesses, their depositions cannot be brushed aside only on this ground. Their depositions should be viewed with all circumspection. So far as injuries sustained by the appellants are concerned, it appears that another sessions trial case is going on in the trial court. (iv) At this stage, learned counsel for the appellants is insisting that one more contention may be recorded that there are only three injuries, whereas, five are the accused. This matching, at this stage, is also not helpful to the appellants because there is already charge under Section 149 of the Indian Penal Code and they have also been punished for the offence under Section 302 to be read with Section 149 of the Indian Penal Code.";