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2013 DIGILAW 251 (JHR)

Bablu Khan @ Bablu Sahid v. State of Jharkhand

2013-02-19

D.N.PATEL, SHREE CHANDRASHEKHAR

body2013
ORDER (ORAL) Per D.N. Patel, J.— The present application has been preferred by the appellant Bablu Khan, who is original accused No. 2 in Sessions Trial No. 120 of 1996/Sessions Trial No. 115 of 2003. This application under Section 389 of the Code of Criminal Procedure has been preferred for suspension of sentence awarded to this appellant by the Additional District & Sessions Judge, Fast Track Court No. V, West Singhbhum at Chaibasa in Sessions Trial No. 120 of 1996/Sessions Trial No. 115 of 2003 and vide judgment and order of conviction and sentence dated 12th February, 2007 this appellant has been mainly punished under Section 302 of the Indian Penal Code for life imprisonment and also he has been punished under Section 4 of the Explosive Substance Act for 5 years and under Section 3 thereof he has been punished for 10 years. All the sentences have been ordered to run concurrently. 2. Having heard counsel for both the sides and perused the record and proceeding of S.T. No. 120 of 1996/Sessions Trial No. 115 of 2003. 3. Looking to the evidences on record, there is a primafacie case against this applicant, who is Bablu Khan son of Abdul Hussain. As this criminal appeal is pending, we are not much analyzing the evidence on record, but, suffice it to say that looking to the evidence of PW 7 and PW 10 there is a prima facie case against this appellant. Their deposition is getting enough corroboration by the deposition given by PW 11, who is Dr. Vishambhar Mandal, who has carried out the post-mortem on the dead body of the deceased Dilip Sao. There are several injuries sustained by the deceased. Moreover also looking to the evidence given by the Investigating Officer there is enough corroboration to the deposition of PW 7 and PW 10. There are other evidences also, which supports the case of the prosecution. Moreover previously the prayer for suspension of sentence of this appellant was rejected by this Court on two occasions firstly vide order dated 22.04.2008 and secondly it was rejected on 29.06.2010 in I.A. No. 1047 of 2010. 4. Counsel for the appellant submitted that there is impersonation verification so far as PW 10 is concerned. When we have heard counsel for the appellant at length he has argued about the name of father of PW 10. 4. Counsel for the appellant submitted that there is impersonation verification so far as PW 10 is concerned. When we have heard counsel for the appellant at length he has argued about the name of father of PW 10. For suspension of sentence the contention of the counsel for the appellant is not acceptable at the stage of 389 of the Code of Criminal 'Procedure because PW 10 has clearly given a deposition before the trial Court initially and thereafter he was recalled as a witness after five months and also looking to the fact that he has also inforri1ad about the occurrence and has signed the first information report. 5. Counsel appearing for the appellant has also submitted that other injured witnesses have turned hostile, who are PW 2 and PW 4 and, therefore, the sentence awarded to this appellant by the trial Court may be suspended. This contention of the counsel for the appellant is also not accepted by this Court because two witnesses PW 2 and PW 4 have turned hostile that does not mean that the evidences of other prosecution witnesses on record are brushed aside. As stated above there is enough evidence against this appellant, which constitutes prima facie case against this appellant and there is prima facie case against this appellant. Therefore, we are not accepting the argument of the counsel for the appellant for suspension of sentence awarded by the trial Court after prayer for suspension of sentence previously was rejected on two occasions and there is no change in the circumstances after rejection of suspension of sentence on two occasions and there is third attempt. 6. Looking to the evidence on record, there is prima facie case against this appellant and looking to the nature of occurrence, gravity of the offence, quantum of punishment and the manner in which this appellant is involved in the offence of murder of the deceased as alleged by the prosecution, we are not inclined to suspend the sentence awarded by the trial Court to the appellant in Sessions Trial No. 120 of 2007/Sessions Trial No. 115 of 2003. 7. There is no substance in the prayer made by the learned counsel for the appellant for suspension of sentence. Hence the prayer for suspension of sentence, is rejected and I.A. No. 1855 of 2011 is disposed of. Application disposed of.