JUDGMENT I.A. No. 6919 of 2013 Per D.N. Patel, J.-This application has been preferred by original accused No. 1 of S.T. No. 609 of 2011 for temporary suspension of sentence awarded to him by Judicial Commissioner, Ranchi on the ground of sickness. This application has been opposed by the learned A.P.P. and vide our order dated 18.12.2013 the details about this applicant (original accused No.1 of S.T. No. 609 of 2011) that how many days this applicant has remained in hospital either at Ranchi or elsewhere, were sought and it has been stated on oath that approximately six months and fifteen days after 24.05.2011 (the date on which this applicant has surrendered after the offence is being revealed on 03.05.2011). 2. Now counsel appearing for this applicant submits that he is not pressing this I.A. which has been filed on the ground of so called sickness. 3. Hence, without going into the merit of this I.A. which has been filed on the ground of so-called sickness of this applicant and also considering the fact that now he has returned in Central Jail at Ranchi we are allowing this applicant to withdraw this I.A. 4. The I.A. No. 6919 of 2013 is disposed of. I.A. No. 1038 of 2014 5. This application has been preferred under Section 389, Cr PC for suspension of sentence awarded to this applicant (original accused No. 1 of S.T. No. 609 of 2011) by Judicial Commissioner, Ranchi. This applicant has been awarded life imprisonment for committing murder of one Avinash Kumar Tiwary under Section 302 to be read with 34, IPC and is also ordered to undergo ten years R.I. for the offence punishable under Section 364 to be read with Section 34, IPC and he has also been punished R.I for three years for the offence punishable under Section 201, IPC. Though he has also been convicted under Section 302 to be read with 120-B, IPC as well as for the offences under Section 364 to be read with Section 120-B, IPC no separate sentence has been awarded. 6. This appeal has been admitted vide order dated 04.07.2013 and record and proceedings of S.T. No. 609/2011 was called for from the trial Court so as to appreciate the argument for suspension of sentence. 7. 6. This appeal has been admitted vide order dated 04.07.2013 and record and proceedings of S.T. No. 609/2011 was called for from the trial Court so as to appreciate the argument for suspension of sentence. 7. This Court has received the record and proceedings of S.T. No. 609/2011 and we have perused the same and heard counsel for both the sides at length. 8. Looking to the evidence on record there is prima facie case against this appellant. As the Cr. Appeal is pending we are not analysing the evidence on record in detail but suffice it to say that looking to the deposition of several prosecution witnesses and the documentary evidence on record it appears that Avinash Kumar Tiwary (deceased) aged about 22 years having soft terms with Usha Lakra who is the daughter of the present applicant (original accused No.1 of S.T. No. 609 of 2011) who was a sitting Member of State Legislative Assembly at the relevant time. The date of occurrence is 24.04.2011. It is alleged by the informant-PW 11, father of the deceased that the present applicant-M.L.A. at the relevant time and his two body guards who are original accused Nos. 2 and 3 with the help of 4th accused, Dinesh Lakra, in furtherance of common intention of all and in conspiracy with each other, kidnapped Avinash Kumar Tiwary and he was murdered. The dead body was recovered and several other incriminating materials have also been recovered. In this process it has been pointed out by PW 29 who is the Sub-inspector of Police and who has carried out major part of the investigation that there are four places of occurrence out of which one is house of this applicant and another is also a farm house of this applicant. Other two places of occurrence have also been narrated in his deposition by PW 29. Moreover, looking to the deposition given by PW 4, PW 5, PW 10 and PW 11 to be read with the deposition given by PW 25, PW 29, PW 30, PW 31, PW 32, PW 33 and PW 34 to be read with the statement recorded under Section 164 of the Criminal Procedure Code, 1973 which are Exts.11/1, 11/2 and 11/3 and also looking to the seizure list which is at Ext.2/6 to be read with the deposition given by PW 16 makes a prima facie case against this applicant. 9. Counsel for the applicant has argued out this case as if he is arguing at the final hearing of the case itself and all possible types of arguments have been canvassed at the stage of suspension of sentence under Section 389, Cr PC but we are not inclined to deal with each and every argument canvassed otherwise nothing will remain to be decided at the time of final hearing of the Cr. Appeal, nonetheless, it is unnecessarily insisted by the counsel appearing for the applicant that his argument may be dealt with by this Court. 10. It is submitted by the counsel for the applicant that there is no eye-witness of the incident and the circumstances have not been proved beyond reasonable doubt and the chain of circumstance has also not been completed. It is also submitted that the statement recorded under Section 164, Cr PC is a weak piece of evidence. The so called seizure list items which were sent to F.S.L are in favour of this applicant. Call details have also not been proved beyond reasonable doubt. PW 4 and PW 5 who are crucial witnesses of the prosecution have been declared hostile. These are major arguments canvassed by the counsel for the appellant. 11. None of these arguments are helpful to this applicant at the stage of suspension of sentence mainly for the reasons :– (a) There is no need of eye-witness in each and every murder case. That depends upon the facts and circumstance of each case. So far as circumstances are concerned those have been proved prima facie against this appellant and they are also constituting a complete chain. (b) So far as statement recorded under Section 164, Cr PC is concerned the statements which are Exts.11/1,11/2 and 11/3 have been proved by the depositions of EWO Judicial Magistrates (PW 33 and PW 34). These depositions are also making a prima facie case against this appellant-accused. (c) So far as report of the F.S.L is concerned, at this stage, we are not going into the details, but, suffice it to say that there is also confession made by the body guards of the present applicant (M.L.A). The word M.L.A. has been argued out at least fifty times before this Court, therefore, we are referring the same terminology in this order. The word M.L.A. has been argued out at least fifty times before this Court, therefore, we are referring the same terminology in this order. The confessional statement of one of the body guards namely, Janak Mahto @ Janak Kumar) who is accused No. 2 leads to the recovery as per Section 27 of the Evidence Act, 1872. This aspect of the matter has been appreciated in internal pages 20 and 21 of the judgment of the learned trial Court. (d) Looking to the deposition of PW 4, though he has been termed hostile, has admitted his signature upon a statement recorded under Section 164, Cr PC as Ext. 1/4. Similarly, PW 5 has also identified his signature on the seizure list as Ext. 1/1. Even these PWs have been termed hostile but, prima facie, looking to the totality of the evidence on record, as stated herein above, their deposition cannot be brushed aside in total. (e) So far as call details are concerned, in detail PW 29 has given deposition, not only about the call details, but, also about "the tower location". Very meticulously the trial Court has appreciated the evidence on record about the call details and "tower location". (f) As the Cr. Appeal is pending we are not going into the fine dissection of the evidence on record, but, suffice it to say that proper and relevant time of kidnapping and murder by this applicant-accused No.1 and his body guard, namely, Janak Mahto @ Janak Kumar who is accused No.2, who were talking with each other in their particular mobile number and looking to their tower location, it is indicative of the fact that they were travelling in their vehicles. 12. It has been held by the Hon'ble Supreme Court in the case of Khilari v. State of U.P. and another, reported in 2008 (3) East Cr C 359 (SC) : AIR 2008 SC 1882 especially in paragraph 10, which reads as under : "10. In Anwari Begum v. Sher Mohammad and Anr., 2005 (4) East Cr C 196 (SC) : 2005 (7) SCC 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. In Anwari Begum v. Sher Mohammad and Anr., 2005 (4) East Cr C 196 (SC) : 2005 (7) SCC 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 v. Sudarshan Singh and Ors., 2002 (2) East Cr C 107 (SC) : (2002) 3 SCC 598 ; Puran etc. v. Rambilas and Anr. etc., 2001 (2) East Cr C 218 (SC) : (2001) 6 SCC 338 ) and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr., JT 2004 (3) SC 442." (Emphasis supplied) 13. It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and Anr., 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. 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) 14. It has been held by the Hon'ble Supreme Court in the case of State of Haryana v. Hasmat, as reported in 2004 (3) East Cr C 109 (SC) : (2004) 6 SCC 175 , 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. 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. 100-DB 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. 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 v. Narendra and Ramji Prasad v. 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) 15. Thus, looking to the aforesaid evidences on record and depositions of the prosecution witnesses as stated herein-above, there is prima facie case against this applicant-accused No. 1 and looking to the prima facie case, gravity of offence and quantum of punishment and the manner this applicant is involved in the murder as alleged by the prosecution, we are not inclined to suspend the sentence awarded by the learned trial Court. 16. There is no substance in this I.A., hence, the same is dismissed. Application dismissed.