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2013 DIGILAW 178 (JHR)

Dinesh Das v. State of Jharkhand

2013-02-04

D.N.PATEL, SHREE CHANDRASHEKHAR

body2013
JUDGMENT Per D.N. Patel, J.: 1. The present appeal has already been admitted vide order dated 17th July, 2012. Records and proceedings of Session Trial No. 47 of 2009 has already been received in Cr. Appeal (DB) No. 430 of 2012. 2. We have perused the records and proceedings of Sessions Trial No. 47 of 2009 and heard the learned counsel for both the sides. 3. The present appeal has been preferred by the appellant Dinesh Das, who is original accused no. 1 in Sessions Trial No. 47 of 2009. The appellant has also prayed for suspension of sentence awarded to him by learned 1st Sessions Judge, Chatra in Sessions Trial No. 47 of 2009. The appellant is mainly convicted for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 149 of the Indian Penal Code as well as for the offence punishable under Section 307 to be read with Section 149 of the Indian Penal Code and he has already been punished under Section 148 of the Indian Penal Code and he has also been convicted for the offence punishable under Section 323 of the Indian Penal Code to be read with Section 149 of the Indian Penal Code as well as under Section 27 of the Arms Act and, thus, he is punished for life imprisonment and other sentences have been ordered to run concurrently. 4. Having heard learned counsel for both the sides and looking to the evidences on record, it appears that the case of the prosecution is based upon several eye witnesses, who are P.W.14, P.W.19 and P.W.20. All these eye witnesses are injured eye witnesses and looking to their depositions, they have clearly narrated the role played by the present appellant-Dinesh Das. The evidences of these eye witnesses are constituting prima facie case against the present appellant. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that the depositions of eye witnesses are getting further corroboration by the deposition given by P.W.11Dr. Bhuneshwar Prasad Singh, who has carried out postmortem of the deceased. Moreover, the injuries of P.W.14, P.W.19 and P.W.20 have been proved by P.W.12Dr. Tusan Prasad. P.W.12 has proved injury certificates of these injured eye witnesses and two other persons. Bhuneshwar Prasad Singh, who has carried out postmortem of the deceased. Moreover, the injuries of P.W.14, P.W.19 and P.W.20 have been proved by P.W.12Dr. Tusan Prasad. P.W.12 has proved injury certificates of these injured eye witnesses and two other persons. Looking to these evidences on record, there is prima facie case against the present appellant-accused and, therefore, looking to the gravity of offence, quantum of punishment and the manner in which the present appellant is involved in the offences, as alleged by the prosecution, we are not inclined to suspend the sentence awarded to him by the trial court. 5. Learned counsel for the appellant has argued the case, at length and submitted that his argument may be dealt with by this Court. It is submitted by learned counsel for the appellant that the present appellant is not aggressor, whereas, other side witnesses are aggressor and, therefore, they have also filed a cross case, which is registered as Sessions Trial No. 14 of 2009 and, thus, the sentence awarded to the present appellant may be suspended. We are not inclined to suspend the sentence awarded to the present appellant for this reason because Sessions Trial No. 14 of 2009 is yet to be tried by the trial court. Moreover looking to the evidences on record, prima facie, it appears that the present appellant and other co-accused are aggressors. 6. It is also submitted by learned counsel for the appellant that eye witnesses P.W.19 and P.W.20 have not given their statements under Section 161 of the Code of Criminal Procedure and, therefore, sentence awarded to this appellant may be suspended. We are also not accepting this contention for suspension of sentence of the appellant under Section 389 of the Code of Criminal Procedure mainly for the reason that the defective police investigation cannot help the accused. The error in investigation is not a virtue of this appellant-accused mainly for the reason that the injury certificates of P.W. 19 and P.W.20 have been proved by P.W.12Dr. Tusan Prasad. Thus, they are injured eye witnesses, looking to the evidences on record and, hence, the benefit of defective investigation cannot be given, at this stage under Section 389 of the Code of Criminal Procedure stage. 7. Tusan Prasad. Thus, they are injured eye witnesses, looking to the evidences on record and, hence, the benefit of defective investigation cannot be given, at this stage under Section 389 of the Code of Criminal Procedure stage. 7. At this stage, learned counsel for the appellant submitted that rest of the arguments may not be dealt with by this Court and, hence, he is not pressing rest of the arguments for suspension of sentence, awarded to the present appellant. 8. Hence, looking to the aforesaid reasons and the evidences on record, there is no substance in the prayer for suspension of sentence awarded to the present appellant by the trial court and, hence, his prayer for suspension of sentence is, hereby, rejected.