D.N.PATEL,J. - (1.) :.Oral Order per Present application [I.A. (Cr.) No. 1783 of 2009] has been preferred by the sole appellant in Cr. A (D.B.) No. 22 of 2009 under Section 389(1) of the Code of Criminal Procedure for suspension of sentence of the appellant -accused, awarded by the trial court for the offences punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof, for life imprisonment and a fine of Rs. 10,000/ - and in case of default, further rigorous imprisonment for one year has been awarded.
(2.) WE have heard learned counsel for both the sides and looking to the evidences collected during the course of trial, there is a prima facie case against the appellant -accused. Learned counsel for the appellant accused has argued out the case in detail including the acquittal in another case, but as the criminal appeal is pending, we are not much analyzing the evidence on record. Suffice it to say, that: (i) looking to the whole incident, which has taken place on 7.5.2006 at 2.30 p.m. and immediately, the F.I.R. has been lodged; . (ii) the appellant -accused is named in the F.I.R.; (iii) looking to the evidence of P.W, 3, there is a prima facie case against the appellant -accused. P.W. 3 is the wife of the deceased and the eye -witness of the whole incident. One of the co -accused called upon the husband of P.W. 3 out of the house. She also followed her husband and ultimately, the appellant -accused, namely, Md. Sadaullah @ Sadab @ Nanka fired upon her husband, who expired. Thus, P.W. 3 is the eye -witness of the whole incident; (iv) that her deposition is getting enough corroboration by other prosecution witnesses, who have rushed to the place of occurrence immediately. One of them is P.W. 4 as well as other neighbours like P.W. 6, have also heard the sound of firing. Thus, there is enough corroboration to the deposition of eye -witness; and (v) that the deposition of eye -witness, P.W. 3, is also getting enough corroboration by the deposition of medical evidence of P.W. 9, who is Dr. Y. Nath.
(3.) AS a cumulative effect of. the aforesaid depositions, there is a prima facie case against the appellant -accused and looking to the gravity of the offence and the quantum of punishment and the manner in which the appellant is involved in the offence, as alleged by the prosecution, we see no reason to suspend the sentence, awarded to the appellant -accused by the trial court.;