JUDGMENT : I.A. No.10493 of 2024 1. The instant interlocutory application has been filed under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for suspension of sentence dated 31.08.2024 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur, in connection with S.T. Case No.153 of 2021, arising out of Kadma P.S. Case No.37 of 2021, corresponding to G.R. Case No.774 of 2021, whereby and whereunder, the appellant has been convicted for the offence under Sections 326 & 34 of the IPC and sentenced him to undergo R.I. for 10 years along with fine of Rs.20,000/- and in default of payment of fine, he has further been directed to undergo R.I. for six months. He has further been sentenced to undergo R.I. for 10 years along with fine of Rs.20,000/- for the offence under Sections 307 and 34 of the IPC and in default of payment of fine, he has to undergo R.I. for six months. He has further been sentenced to undergo R.I. for 7 years along with fine of Rs.20,000/- for the offence under Sections 26(2) & 35 of the Arms Act and in default of payment of fine, he has to undergo R.I. for six months and all the sentences have been directed to run concurrently. Factual Matrix 2. The case of the prosecution on the basis of fardbeyan of the informant, Ayushi Chandra, in short is that at about 9:15 P.M. on 13/02/2021, the informant's father, namely, Ganesh Chandra was closing his jewelery shop situated at Uliyan. Meantime, two persons riding on a motorcycle came there and one of them fired on her father which hit on the stomach of her father and after that, they fled away with motorcycle. On alarm raised, nearby people came there and admitted informant's father to TMH Hospital for treatment. 3. Further, the case of the informant is that she had solemnized love marriage with one Raj Kumar Patro on 14/12/2019 against the wishes of her family member but just after 6-7 months, her husband started torturing her and he had greedy eye on her father's property. He was also associated with some criminal minded people. Due to all these reasons, the informant after leaving her husband was residing at her father's house and do not want to lead her life with her husband. He was also associated with some criminal minded people. Due to all these reasons, the informant after leaving her husband was residing at her father's house and do not want to lead her life with her husband. She had also filed a divorce case in the court, for which, the accused was infuriated and also threatened her and her family members for dire consequences. The informant presumed that Rajkumar Patro along with his criminal associates, planned to kill her father. 4. On the fardbeyan of the informant, Kadma P.S. case no.37/2021 dated 14/02/2021 was registered and after completion of investigation, Police submitted charge-sheet against the accused Raj Kumar Patro and Raghunath Manna under Sections 326/307/34 of the IPC and under Sections 25(1-B)a/25(1-A)/26(2)/27/35 of the Arms Act. 5. In order to substantiate the prosecution case, prosecution has examined altogether eight witnesses in Session Trial and the learned trial court after appreciation of evidence has found the charges levelled against the present applicant along with other accused proved beyond all reasonable doubts and accordingly, the present applicant has been convicted and sentenced as aforesaid. 6. The instant interlocutory application has been preferred by the applicant/appellant with the prayer for the suspension of sentence during pendency of the instant appeal. Submission of the learned counsel for the appellant 7. It has been contended on behalf of the appellant that it is a case where there is no cogent evidence said to come in course of trial, basis upon which, the prosecution version has been said to be proved beyond all reasonable doubts. 8. It has further been submitted that there is no eye witness to the occurrence and as such, the prosecution witnesses are not reliable as all are hearsay witnesses. 9. In this case, none of the witnesses had seen the accused /appellant at the place of occurrence and further, the victim who has been examined as a Court Witness No.1 has not disclosed the name of the miscreant who committed the occurrence. Further, there is previous enmity with regard to the relationship of accused Rajkumar Patro with the daughter of the injured victim and due to this reason, he has falsely been implicated. 10. Further, there is previous enmity with regard to the relationship of accused Rajkumar Patro with the daughter of the injured victim and due to this reason, he has falsely been implicated. 10. It has further been submitted that the pistol has been recovered but such recovery has not been made in presence of any of the witnesses and as such, the same cannot be said to be conclusively proved to connect the culpability of the present appellant in the commission of crime. 11. Learned counsel, based upon the aforesaid grounds, has submitted that it is a fit case for suspension of sentence during pendency of the appeal. Submission of the learned Spl.P.P for the respondent-State 12. While on the other hand, Mr. Vishwanath Roy, learned Spl. P.P. appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence. 13. It has been submitted that as per fardbeyan of informant Ayushi Chandra, there is direct allegation against the accused Rajkumar Patro who had married with the informant which was objected by the parents of the informant and due to aforesaid reason, the accused with the help of co-accused Raghunath Manna committed the said offence and further, there is motive of occurrence established by the witnesses P.W.1, the wife of injured and the informant P.W.4 Ayushi Chandra and both the witnesses have substantiated the case of prosecution. 14. Further, it has been contended that the Investigating Officer, P.W.-6 has stated that during investigation he has arrested both the accused including present appellant nearby railway station TOP Bagbera along with recovery of one Splendor motorcycle bearing no. JH05CN-1829 used in the crime as well as recovery of one country made pistol of 7.65 bore along with two live cartridges and further, this witness proves about recording of inculpatory statement of both the accused which was recorded by him during investigation vide Ext.5 and Ext.10, wherein, they admitted their involvement in the alleged crime. 15. Learned State Counsel has further submitted by referring to the statement recorded under Section 313 of the Cr.P.C., wherein, the statement has been made regarding recovery of the pistol and there is no specific denial to that effect. 16. 15. Learned State Counsel has further submitted by referring to the statement recorded under Section 313 of the Cr.P.C., wherein, the statement has been made regarding recovery of the pistol and there is no specific denial to that effect. 16. Learned State Counsel, based upon the aforesaid grounds, has submitted that there is material available on record, based upon which, the learned trial Court has found the charge proved beyond all reasonable doubts and hence, it is not a fit case for suspension of sentence during pendency of the instant appeal. Analysis 17. We have heard the learned counsel for the parties and gone across the finding recorded by the learned trial court in the impugned judgment, as also, the testimony of the witnesses along with other exhibits, as available in the Lower Court Records. 18. This Court, after having heard the learned counsel for the parties, has found that the seized empty khoka and one live cartridges found at place of occurrence as well as the pellet which was recovered from the body of the injured victim Ganesh was found fired by same weapon which was recovered from the conscious and joint possession of both the accused including the present appellant, as would be evident from the report submitted to that effect, marked as Exhibit P-16. 19. Further, it is evident from the impugned order that the appellant/applicant has failed to explain under what circumstances the pellet recovered from the injured as well as empty khoka found at the place of occurrence was fired from the country made pistol which was recovered from joint and conscious possession of both the accused persons. 20. It is further evident from the finding of learned trial court that it has been established by the prosecution that the fired shell and live cartridge of the description of 7.65 bore caliber seized from the place of occurrence marked “A” correspondingly marked “A1” and “A2” in SFSL examination vide material Ext.MO-IV is matched with arms, i.e., country made semiautomatic pistol with magazine of 7.65 caliber marked “Z” recovered from the joint and conscious possession of both the accused including the present appellant. 21. 21. Learned counsel for the appellant has also tried to demolish the said recovery of the pistol by taking the ground that there is no seizure witnesses, but we, on consideration of the said argument, have considered the statement recorded under Section 313 of the Cr.P.C., wherein, the learned trial Court has put specific question regarding the recovery of the pistol from his physical possession but, he has not specifically denied with respect to the recovery of the pistol from his physical possession. 22. Further, it needs to refer herein that, while exercising power of suspension of sentence during pendency of appeal the Court has to see only prima-facie case. 23. The Hon'ble Apex Court in the case of Preet Pal Singh Vrs. State of U.P., reported in (2020) 8 SCC 645 has observed that there is difference between grant of bail in case of pre-trial arrest and suspension of sentence, post- conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, however, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. For ready reference, the relevant paragraph of the aforesaid judgment is being quoted as under:- " 35 . There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC." 24. Thus, it is evident from the aforesaid judgment that during considering suspension of sentence which is the postconviction stage, the presumption of innocence in favour of the accused cannot be available and at this stage, the Court's only duty is to see that the prima-facie case is made out or not, as such, the detailed appreciation of evidence is not required at this stage. 25. This Court, after having discussed the factual and legal issues and as per the discussion made hereinabove, is of the view that it is not a fit case for suspension of sentence. 26. Accordingly, the interlocutory application being I.A. No.10493 of 2024, is hereby, rejected. 27. It is made clear that any observation made herein will not prejudice the issue on merit as the appeal is lying pending for its consideration.