- (1.) Oral Order per D.N. Patel, J. Present application [I.A. (Cr.) No. 1804 of 2009] has been preferred by the sole appellant in Cr. A. (D.B.) No. 1219 of 2008 under Section 389(1) of the Code of Criminal Procedure for suspension of sentence of the appellant -accused, awarded by the trial court.
(2.) HAVING heard learned counsel for both the sides and looking to the evidence collected during the course of trial, there is a prima facie case against the appellant -accused. Learned counsel appearing for the appellant -accused has argued out the case in detail. As the criminal appeal is pending, we are not much analyzing the evidence on record but: (i) looking to the deposition of P.W. 9, who is an eye witness; (ii) looking to the dying declaration recorded in presence of Dr. 8.M. Prasad, P.W.6 as well as in presence of Investigating Officer, P.W. 4; (iii) looking to the fact that immediate is the F.I.R., the whole incident has taken place on 9th of May, 2001 at 9 p.m. in the house of the appellant accused and the F.I.R. is lodged on 9th of May, 2001 at 11.30 p.m. and the appellant -accused is named in the F.I.R.; (iv) also looking to the depositions of P.Ws. 5, 7, 8 and 10, all met the deceased at Apollo Hospital, where she has orally narrated how the offence has been committed by the present appellant; (v) depositions of prosecution witnesses is also getting enough corroboration by the deposition given by Dr. Akhilesh Kumar Chowdharay, P.W. 3 and by P.W. 11 also, though he has turned hostile (on certain points).
(3.) AS a cumulative effect of the aforesaid fact and evidences, there is a prima facie case against the appellant accused. Previously also, the prayer for suspension of sentence was not granted by this Court, vide order dated 17.10.2008. This is the second attempt.;