I.A.No. 5822 of 2019
1. Heard learned counsel for the appellant, State and the informant on the prayer for suspension of sentence made through instant interlocutory
application.
2. The sole appellant stood convicted for the offence punishable under Section 302 of the I.P.C vide impugned judgment of conviction dated
25.01.2018 rendered in Sessions Trial No. 53 of 2012 by the learned Court of Additional Sessions Judge-I, Giridih and sentenced to undergo R.I for
life and a fine of Rs.20,000/- with a default sentence by the impugned order of sentence dated 29.01.2018.
3. Learned counsel for the appellant submits that the case of the prosecution is based upon the evidence of two of the sons of the deceased namely
Bikash Kumar Mandal (P.W.1) and Murlidhar Mandal (P.W.6). Murlidhar Mandal (P.W.6) is the informant of the case. These two witnesses have
stated that they have seen the occurrence. Learned counsel for the appellant has taken this Court to the evidence of Upendra Rajak (P.W.7),
Investigating Officer of the case. It is submitted that from the testimony of Upendra Rajak (P.W.7), it would appear that at the time of occurrence
Bikash Kumar Mandal (P.W.1) and Murlidhar Mandal (P.W.6), both were not present at the place of occurrence. The fardbeyan has been recorded
at the Sadar Hospital, Giridih. Upendra Rajak (P.W.7) had taken over the charge of investigation after recording of the fardbeyan by the Officer-In-
Charge Abid Khan. It is further submitted by reference to the testimony of Murlidhar Mandal (P.W.6) that there are contradictions in the statement
made in his fardbeyan and his statement made during trial on the point of having seen the occurrence. There is further contradiction as to the
testimony as regard the firing by three persons and smoke coming out of their pistols including this appellant. It is pointed out that in the wake of
testimony of the informant, medical evidence shows only one fire arm shot injury on the chest of the deceased. As such the ocular testimony of
informant, which is doubtful, is not corroborated by the medical evidence of Dr. Deepak Kumar (P.W.2) who has proved the post mortem report
marked as Ext. 3. It is submitted that the appellant is in custody since 03.10.2011 i.e., more than 7 ½ years. As such, he may be enlarged on bail by
granting him privilege of suspension of sentence during pendency of this appeal.
4. Learned Additional Public Prosecutor and learned counsel for the informant have opposed the prayer. It is submitted by reference to the testimony
of Murlidhar Mandal(P.W.6) informant that Police had reached the place of occurrence after 15 minutes. The body was carried on the Police jeep
along with the Officer-In-Charge to the Sadar Hospital, Giridih where the fardbeyan was recorded. Upendra Rajak (P.W.7) was not present at the
time of occurrence to have disputed the presence of this informant or his brother at the place of occurrence. The evidence of Bikash Kumar Mandal
(P.W.1), Murlidhar Mandal (P.W.6) and the corresponding injuries of the deceased proved by Dr. Deepak Kumar (P.W.2) connect the appellant as
the author of the fire shot, which lead to the death of the victim. As such, appellant should not enlarged on bail by granting him privilege of suspension
of sentence during pendency of this appeal.
5. We have considered the submission of learned counsel for the appellant, the State and the informant. We have also taken note of the facts and
circumstances including the relevant material evidence relied upon by learned counsel for the rival parties from the lower court records. Having regard
to the testimony of Murlidhar Mandal (P.W.6), who is an eye witness and corresponding injuries on the deceased proved by Dr. Deepak Kumar
(P.W.2) marked as Ext.3 and that the initial fardbeyan was recorded at the Sadar Hospital, Giridih, where after charge of investigation was taken over
by Upendra Rajak (P.W.7), the Investigating Officer, we do not feel it proper to enlarge the appellant on bail by granting him privilege of suspension
of sentence at this stage. Accordingly, the prayer made in instant interlocutory application is rejected.
6. I.A. No.5822 of 2019 is also dismissed.
7. Learned Additional Public Prosecutor is required to enquire and ascertain the status of trial in Sessions Trial No. 14 of 2013 pending before the
learned Additional Sessions Judge-I, Giridih against the remaining accused persons, two of whom have surrendered and two of whom have been
arrested, within a period of 3 weeks.
