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2017 DIGILAW 821 (JHR)

Amit Kumar Das v. State Of Jharkhand

2017-05-05

AMITAV K.GUPTA, D.N.PATEL

body2017
JUDGMENT D.N. Patel, J. – This interlocutory application has been preferred by the appellant under section 389 of the Code of Criminal Procedure, 1973 for suspension of sentence awarded to him by the Additional Judicial Commissioner FTC (crime against women) at Ranchi in Session Trial No. 77 of 2009, corresponding to T.R. no. 217 of 2013, whereby this appellant has been convicted for life imprisonment mainly for the offence punishable under Section 376, 302 and 201 of the Indian Penal Code. 2. Having heard learned counsel for both the sides and looking to the evidences on record, specially depositions given by P.W.-1 to be read with the depositions given by P.W.-5 and P.W.-7 there is prima facie case against this appellant-accused. Moreover, looking to the depositions given by P.W.-9 and P.W.-10, there is enough corroboration to the depositions given by P.W.-1, P.W.-5 and P.W.-7 and there is enough corroboration to the depositions given by the other prosecution witnesses. There is recovery of undergarments of the deceased at the behest of this appellant hence we are not inclined to suspend the sentence awarded to this appellant by the trial court. 3. Previously also the prayer for suspension of sentence has been rejected by a detailed speaking order dated 18.09.2014 and there is no change whatsoever, except efflux of time. 4. Learned counsel for the appellant submitted that there is not a single witness who has seen this accused and the deceased Mahima Niketa Kerketta, 8 years old girl, walking together. This contention is not accepted by this court mainly for the reasons:- (a) the case of the prosecution is based on "last seen together" theory as per deposition given by PWs. 1, 5 and 7. (b) "last seen together" theory does not require that the accused and the deceased must walk together. Even they sit together or even they are seen together is sufficient. (c) We have also perused the time at which they were seen lastly together at the time of murder. Hence, the criminal appeal is pending. We are not telling the time of murder vis-a-vis postmortem report. This things are left to be decided at the time of final hearing, otherwise noting will be left to be decided. (d) there is recovery of undergarments of the deceased at the behest of the appellant-accused. Hence, the criminal appeal is pending. We are not telling the time of murder vis-a-vis postmortem report. This things are left to be decided at the time of final hearing, otherwise noting will be left to be decided. (d) there is recovery of undergarments of the deceased at the behest of the appellant-accused. Suffice it will be to record in the order of rejection of the application under section 389 Cr.P.C., 1973 that in view of the aforesaid evidence on record, there is a prima-facie case against this appellant accused and looking to the gravity of the offence, quantum of punishment and the manner in which the accused-appellant is involved as alleged by the prosecution and also looking to the earlier rejection of the prayer for suspension of sentence by a detailed speaking order dated 18.09.2014, there is no change in circumstances, we are not inclined to suspend the sentence awarded by the trial court to this appellant-accused. 5. Hence, there is no substance in this interlocutory application and the same is dismissed. 6. I.A. no. 6450 of 2016 stands disposed of.