Order The present Interlocutory Application has been preferred under Section 389(2) of Cr.P.C. praying for suspension of sentence awarded by the District & Sessions Judge-II, Godda in Sessions Trial No. 35 of 1998, whereby, the applicant, who is the sole appellant (original accused No.1), has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000/- under Section 27 of the Arms Act and in default of payment of fine, to undergo six months simple imprisonment. 2. Having heard counsel for both sides and looking to the evidences on record, it appears that there is prima facie case against this appellant, but as the criminal appeal is pending we are not much analyzing the evidence on record, but suffice it to say that case of the prosecution is based on several eye witnesses. Looking to the evidences of these eye witnesses, i.e. that of P.Ws. 3, 4, 5, 7 and 10, it appears that they clearly narrated the role played by the present applicant. Firearm has been used as per the evidence of these eye witnesses and looking to the medical evidence given by Dr. Vijay Kumar Bhagat (P.W. 11), following are the injuries sustained by the deceased:- "(i) Multiple lacerated wound 16 in number in size of 1/8" with blackening and charring of the surrounding skip with skin margin inverted over frontal and parietal part of skull, both side of face and near nasal side of both eyes with pellet was intact. (ii) Three lacerated wounds of size of 1/8" with blackening and charring of surrounding skin with skin margin inverted over left shoulder and upper part of left side of chest with oozing of blood. On Dissection: He found blood clots on soft tissues scalp and face. Six pellets removed from scalp and face, few pellets entered into scalp cavity and has lacerated brain matters, blood was present in the brain substance. On dissection of thorax and shoulder he found blood was present in soft tissues, lungs were pale and normal Pericardium was intact, all chambers of heart were empty and normal. On further dissection he found no abnormality in spleen, liver and kidney and etc. On dissection of thorax and shoulder he found blood was present in soft tissues, lungs were pale and normal Pericardium was intact, all chambers of heart were empty and normal. On further dissection he found no abnormality in spleen, liver and kidney and etc. The above said injury in his view gun shot injury, and head injury sustained by deceased, in ordinary course of nature was sufficient to cause death.” 3. Thus, evidences of the eye witnesses get enough corroboration from the medical evidence as well as from the evidence given by P.W.13, who is the Investigating Officer. 4. Counsel for the appellant has insisted that as he has argued out at length and his arguments may be dealt with at this stage of prayer for suspension of sentence. 5. Counsel for the appellant referred to the statement of the present appellant under Section 313 of the Cr.P.C. because the date of the incident referred to in the statement is wrong and this has caused a great prejudice to the appellant. 6. We are not inclined to accept this contention mainly for the reason that looking to the evidences on record, it appears that correct date of the incident are referred to by every eye witness. However, we are not going into analysis of the said argument at this stage of prayer for suspension of sentence because of pendency of the criminal appeal. 7. The counsel further submitted that there are two F.I.Rs. This contention is also no accepted by this court mainly because P.W.10, who has given information is also an eye witness and looking to his evidence, it appears that there is no F.I.R. except the one marked Ext.-6 while the Fardbayan is Ext. No. 2. Thus, formal F.I.R. has been given Ext. No. 6 and therefore, this contention is also not accepted by this court without going into the detail at this stage because the criminal appeal is pending. 8. Counsel for the appellant submitted that there is no specific allegation against this appellant for murder of the deceased because there are two accused in the sessions trial and more than one firearm is used as per the seizure list witness. This contention is also not accepted by this court at this stage of prayer for the suspension of sentence mainly for the reason that appellant was with the firearm. This contention is also not accepted by this court at this stage of prayer for the suspension of sentence mainly for the reason that appellant was with the firearm. Firearm has been used as per eye witnesses and as per medical evidence (as per post mortem report) firearm injuries are there in the body of the deceased. There is also a charge under Section 27 of the Arms Act. The appellant has been convicted for the offence punishable under Section 302 I.P.C. to be read with Section 34 I.P.C. and also under Section 27 of the Arms Act. 9. It has been held by the Hon'ble Supreme Court in the case of Khilari vs. State of U.P. and Another reported in AIR 2008, S.C. 1882 [: 2009(2) JLJR (SC)110] especially in paragraph 10, which reads as under:- "10. In Anwari Begum vs. Sher Mohammad and Anr. [ (2005)7 S.C.C. 326 ], it was, inter, alia, observed as follows:- “7. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 8. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:- 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order de hors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay vs. Sudarshan Singh and Ors. [ (2002)3 S.C.C. 598 ]; Puran etc. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order de hors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay vs. Sudarshan Singh and Ors. [ (2002)3 S.C.C. 598 ]; Puran etc. vs. Rambilas and Anr, etc. [ (2001)6 SCC 338 )] and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004(3) SC 4421." (Emphasis supplied) 10. It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad vs. Rattan Kumar Jaiswal and Am., as reported in (2002)9 SCC 366 , in paragraph no. 3, as under:- "3. Absolutely no reason is shown by the learned single Judge for adopting this exceptional course in a case where an accused was found guilty by the trial court under Section 302 of the Indian Penal Code. The normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted." (Emphasis supplied) 11. It has been held by the Hon'ble Supreme Court in the case of State of Haryana vs. Hasmat, as reported in (2004)6 SCC 175 [: 2004(3) JLJR (SC) 281], in paragraph nos. 6 to 9, as under:- "6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 7. The appellate court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. 7. The appellate court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the period the accused-respondent was granted parole. 8. The learned Sessions Judge, Gurgaon by a judgment dated 24.10.2001 had found the accused-respondent guilty. Criminal Appeal No. 100DB of 2002 was filed by the respondent. The fact that during the pendency of the appeal the accused respondent was on parole goes to show that initially the accused-respondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole the accused has not misused the liberties does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court was whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view. 9. In Vijay Kumar vs. Narendra and Ramji Prasad vs. Rattan Kumar Jaiswal it was held by this Court that in cases involving conviction under Section 302 IPC it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused the manner in which the crime is alleged to have been committed the gravity of the offence and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court, while passing the impugned order." (Emphasis supplied) 12. It has been held by Hon'ble Apex Court in Khilari vs. State of Uttar Pradesh and Another reported in (2008)11 SCC 180 [: 2009(2) JLJR (SC)110] in paragraph nos. 4, 6, 12 and 13, which reads as under:- 4. These aspects have not been considered by the High Court, while passing the impugned order." (Emphasis supplied) 12. It has been held by Hon'ble Apex Court in Khilari vs. State of Uttar Pradesh and Another reported in (2008)11 SCC 180 [: 2009(2) JLJR (SC)110] in paragraph nos. 4, 6, 12 and 13, which reads as under:- 4. The only stand taken was that the ante mortem injuries on the body of the deceased included three contusions, one abraded contusion and four lacerated wounds of different dimensions on various parts of the body which could not have been caused by iron rods. It was their stand that some unknown assailants caused the injuries to the deceased. 6. After noticing the rival stands the High Court by the impugned order granted the bail with the following conclusions:- 12. The extracted portion and the High Court's order goes to show there was complete non-application of mind and non-consideration of the relevant aspects. 13. The impugned order, therefore, is not sustainable and is dismissed. The bail granted to Respondent 2 is cancelled. The matter is remitted to the High Court for fresh consideration in accordance with law." 13. Therefore, in the light of the aforesaid decisions also this court cannot accept the contention of the counsel for the appellant that execution of sentence awarded to the appellant may be suspended because there is no specific allegation against this appellant for murder of the deceased as there are two accused in the sessions trial and more than one firearm is used as per the seizure list witness. 14. Counsel for the appellant has read out the evidences on record in detail and has pointed out that there are major omissions and contradictions in the deposition of prosecution witnesses. We are not inclined to accept this argument as this is a stage of suspension of sentence, otherwise whole appeal will be decided at this stage. But, it is sufficient to say that there is prima facie case against this appellant accused looking to the deposition of the eye witnesses, which also gets enough corroboration from the medical evidence, 15. We are not inclined to accept this argument as this is a stage of suspension of sentence, otherwise whole appeal will be decided at this stage. But, it is sufficient to say that there is prima facie case against this appellant accused looking to the deposition of the eye witnesses, which also gets enough corroboration from the medical evidence, 15. Therefore, as cumulative effect of the aforesaid facts, reasons, decisions and evidences on record and looking to the gravity of the offence, quantum of punishment and the manner in which the present applicant is involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence awarded by the trial court. 16. There is no substance in the interlocutory application and hence the same is, hereby, dismissed.