Jharkhand High Court
Vijay Ravi vs The State Of Jharkhand on 18 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1331 of 2024
With
I.A. No. 10811 of 2024
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Vijay Ravi, aged about 29 years, son of Late Kishor Ram @ Kishori
Ram, Resident of Village-Bargaon, PO + PS-Bharno, Dist.-Gumla,
Jharkhand.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. A.K. Kashyap, Sr. Advocate
Mr. Abhishek Prasad, Advocate
For the Respondent : Mrs. Ruby Pandey, APP
For the Informant : Mr. Jitendra S. Singh, Advocate
Mr. Brajesh Kumar Singh, Advocate
-----------
th
C.A.V. on 11 February, 2025 Pronounced on 18/03/2025
Per Sujit Narayan Prasad, J
I.A. No. 10811 of 2024:
1. The instant interlocutory application has been filed on behalf of
appellant under Section 430(1) of Bhartiya Nagarik Suraksha
Sanhita, 2023 for suspension of sentence passed in connection with
the judgment of conviction dated 12.09.2024 and sentence dated
13.09.2024 passed in Sessions Trial No.147 of 2023 arising out of
Puso P.S. Case No. 40 of 2022 corresponding to G.R. No. 174 of
2022 by learned Additional Sessions Judge-I-cum-Special Judge,
Gumla, whereby and whereunder, the appellant has been convicted
for the offence under Section 302 of the I.P.C. and sentenced to
undergo imprisonment for life along with fine of Rs.10,000/- and in
default of payment of fine, the appellant has further been directed to
undergo simple imprisonment for six months.
Factual Matrix
2. The factual background of the institution of FIR needs to be referred
herein which is as under:
The informant gave a written report before the police on
22.12.2022 stating therein that he is resident of village-Puso, P.S.
Puso, Distt-Gumla. It is further stated that on 22.12.2022 at about
04.30 pm he came to know through the villagers in the village that
his Bhagina (nephew) Kailash Ram, who lived in his house in Puso
since childhood has been shot dead by Vijay Ravi.
The villagers picked up Kailash Ram, and took him to the
referral hospital Sisai. As soon as he got the information, he
immediately reached the referral hospital, Sisai and saw that his
Bhagina (nephew) Kailash Ram has been shot in the chest, and he is
lying dead on the stretcher. At the time of the incident Pawan Ram,
and Santosh Ram, were present. Both of them told him that at about
4.15 P.M. in the evening they were cutting bushes in Kedia Baghicha
field when they heard cries of help from about 100 meters away.
Both of them went in that direction after hearing the noise and they
saw that Vijay Ravi shot Kailash Ram, and seeing both of them
coming near, Vijay Ravi fled away. Thereafter his Bhagina Kailash
Ram was admitted in the referral hospital Sisai by Pawan Ram and
Santosh Ram in an injured state. It is further alleged that eight
months ago near Ambedkar Chowk, Puso in front of him and his
family members there was a fight between Kailash Ram and Vijay
Ravi. At that time Vijay Ravi had threatened to kill Kailash Ram,
and he had said that whenever he gets a chance, he will murder him.
3. On the basis of the written report Puso P.S. Case No. 40/2022 dated
22.12.2022 under Section 302 of the IPC and under Section 27 of the
Arms Act was registered against the accused. Finally, I.O. has
submitted charge-sheet no. 07/2023 dated 16.03.2023 under Section
302 of the IPC and under Section 27 of the Arms Act against the
above-named accused.
4. Accordingly, cognizance of the alleged offences under Section 302
of the IPC and under Section 27 of the Arms Act has been taken vide
order dated 18.03.2023 and the case was committed the before the
Court of Session vide order dated 28.04.2023.
5. In order to prove the case altogether 09 witnesses including the
investigating officer, they have been examined by the prosecution in
Session Trial and the learned trial court after appreciation of
evidence has found the charges levelled against the present applicant
proved beyond reasonable doubt 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 senior counsel for the appellant:
7. Mr. A.K. Kashyap, learned senior counsel appearing for the
appellant has submitted that the appellant is innocent and has falsely
been implicated in this case.
8. It has been submitted by the learned senior counsel that the
conviction is solely based upon the testimony of P.W.-1 and P.W.-2
who have been considered to be the eye witnesses but they cannot be
said to be the eye witnesses if the testimony of the investigating
officer will be taken into consideration, wherein the investigating
officer in paragraphs-86 to 89 of his testimony has deposed that the
P.W.-1 and P.W.-2 have not narrated him about witnessing the
commission of crime.
9. It has, therefore, been contended that if the testimony of the
investigating officer will be taken in to consideration, then the P.W.-
1 and P.W.-2 cannot be considered to be the eye witnesses.
10. Further ground has been taken that even material contradiction is
there in between the testimonies of P.W.-1 and P.W.-2 and on that
ground also, they cannot be said to be eye witnesses.
11. Further, it has been contended that the doctor, who has been
examined as P.W.-7 did not find any sand, soil, etc. in and around
the wound or clothes of the deceased whereas P.W.-1 stated that the
deceased fell down after being shot.
12. Learned senior counsel has further submitted that the P.W.-9, who is
also a seizure list witness, has stated that he had no knowledge about
the seizure list and has signed the same because his senior police
officer asked him to do so.
13. Learned senior counsel, based upon the aforesaid ground, has
submitted that it is a fit case where the sentence is to be suspended so
that the appellant be released on bail.
Submission of the learned APP for the respondent-State:
14. While on the other hand, Mrs. Ruby Pandey, learned Additional
Public Prosecutor appearing for the respondent-State and Mr.
Jitendra S. Singh, learned counsel for the informant have submitted
that if the testimony of the investigating officer will be taken into
consideration in entirety, then it would be evident that the testimony
of investigating officer who has been examined as P.W.-4 cannot be
said to be reliable piece of evidence particularly in the aforesaid
aspect.
15. From the testimonies of the P.W.-1 and P.W.-2 it is evident that they
are the eye-witnesses of the said occurrence and merely because the
investigating officer has deposed that the P.W.-1 and P.W.-2 have
not stated about witnessing the said commission of crime when he
recorded the statement of said witness under Section 161 of the
Criminal Procedure Code (Cr.P.C.), cannot be considered as cogent
evidence to disprove the credibility of P.W.1 and P.W.2 as eye-
witness rather the said version of the investigating officer is to be
examined by the statement recorded under Section 161 of Cr.P.C.
16. Learned counsel for the respondent-State after referring the case
diary has submitted that the P.W.-1 and P.W.-2 have fully supported
the prosecution version and there is no iota of doubt that P.W.1 and
P.W.2 are the eyewitnesses of the alleged occurrence.
17. It has been contended by the learned counsel for the informant that
the Court can consider the case diary also in order to reach to the
truth in case of any contradiction of the testimony of the
investigating officer with the other witnesses.
18. It has been submitted that as has been submitted by the learned
counsel for the respondent-State, after going through the case diary,
that the testimony of investigating officer is not reliable rather he has
improved the case of the defence.
19. Learned counsel for the respondent, therefore, has submitted that it is
not a fit case for suspension of sentence.
Response of the learned senior counsel for the appellant:
20. In response to the said argument, learned senior counsel appearing
for the appellant has submitted that the case diary cannot be
considered unless the contradiction is available on record and to
substantiate the said argument, reliance has been placed upon the
judgment rendered by the Hon'ble Supreme Court in Mukund Lal
vs. Union of India and Anr, AIR 1989 SC 144.
Analysis
21. We have heard 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 as available in the Lower
Court Records.
22. Before adverting to the facts of instant case this Court would like to
refer the ratio as led by the Hon'ble Apex Court in the case of
Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123
wherein it has been held 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, for ready reference the
relevant paragraph of the aforesaid Judgment is being quoted as
under:
"31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra,
(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji
Prasad v. Rattan Kumar Jaiswal [Ramji Prasad v. Rattan
Kumar Jaiswal, (2002) 9 SCC 366 : 2003 SCC (Cri) 1197] , it
was held by this Court that in cases involving conviction under
Section 302IPC, it is only in exceptional cases that the benefit of
suspension of sentence can be granted. In Vijay Kumar [Vijay
Kumar v. Narendra, (2002) 9 SCC 364 : 2003 SCC (Cri) 1195] ,
it was held that in considering the prayer for bail in a case
involving a serious offence like murder punishable under
Section 302IPC, 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.
33. Bearing in mind the aforesaid principles of law, the
endeavour on the part of the court, therefore, should be to see
as to whether the case presented by the prosecution and
accepted by the trial court can be said to be a case in which,
ultimately the convict stands for fair chances of acquittal. If
the answer to the abovesaid question is to be in the affirmative,
as a necessary corollary, we shall have to say that, if ultimately
the convict appears to be entitled to have an acquittal at the
hands of this Court, he should not be kept behind the bars for a
pretty long time till the conclusion of the appeal, which usually
takes very long for decision and disposal. However, while
undertaking the exercise to ascertain whether the convict has
fair chances of acquittal, what is to be looked into is something
palpable. To put it in other words, something which is very
apparent or gross on the face of the record, on the basis of
which, the court can arrive at a prima facie satisfaction that the
conviction may not be sustainable. The appellate court should
not reappreciate the evidence at the stage of Section 389 CrPC
and try to pick up a few lacunae or loopholes here or there in
the case of the prosecution. Such would not be a correct
approach."
23. Thus, it is evident from perusal of the relevant paragraphs of the
aforesaid judgment is it is apparent that while considering the bail 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.
24. It is further evident from perusal of the relevant paragraphs of the
aforesaid judgment that the appellate court should not reappreciate
the evidence at the stage of Section 389 Cr.P.C. and try to pick up a
few lacunae or loopholes here or there in the case of the prosecution.
Such would not be a correct approach and at this stage Court is only
to see the prima facie case for its satisfaction.
25. In the backdrop of the settled position of law, we are now adverting
to the facts of the instant case. In order to verify the strength of the
contention of the learned counsel for parties we have considered the
testimonies of P.W.-1 and P.W.-2 and have found therefrom that
they have deposed to have seen the occurrence. The said version has
also been reiterated in the cross-examination and no major
contradiction has come on the record.
26. The investigating officer although has deposed in paragraphs-86 to
89 denying the fact that the P.W.-1 and P.W.-2 have stated to him
about witnessing the commission of crime.
27. We, for the purpose of reaching to the conclusion at this stage, have
gone through the testimony of P.W.-4, investigating officer, in
entirety but while considering the testimony, the entire or whole
version of one or the other witnesses is required to be there and not
only part of testimony which suits either of the party is to be taken
into consideration.
28. It needs to refer herein the settled position of law that the testimony
of all the witnesses is to be taken together and not in piecemeal.
Reference in this regard be made to the judgment rendered in the
case of Shyamal Ghosh v. State of West Bengal, reported in (2012)
7 SCC 646 wherein at paragraph-69 it has been held as under: --
"69. Another settled rule of appreciation of evidence as already
indicated is that the court should not draw any conclusion by
picking up an isolated portion from the testimony of a witness
without adverting to the statement as a whole. Sometimes it may
be feasible that admission of a fact or circumstance by the
witness is only to clarify his statement or what has been placed
on record. Where it is a genuine attempt on the part of a witness
to bring correct facts by clarification on record, such statement
must be seen in a different light to a situation where the
contradiction is of such a nature that it impairs his evidence in
its entirety."
29. Further, it is also settled position of law that a witness may be
untruthful in some aspects but the other part of the evidence may be
worthy of acceptance. Discrepancies may arise due to error of
observations, loss of memory due to lapse of time, mental disposition
such as shock at the time of occurrence and as such the normal
discrepancy does not affect the credibility of a witness. Reference in
this regard may be taken from the judgment rendered by the Hon'ble
Apex Court in the case of Bhagwan Jagannath Markad & Ors. vrs.
State of Maharashtra, (2016) 10 SCC 537.
30. In the backdrop of the aforesaid settled position of law we have
considered the testimony of the investigating officer in entirety and
found in paragraph-82, in order to reach to the conclusion for its
reliability with the evidentiary value, wherein it has been deposed by
him that the P.W.-1 and P.W.-2 have not stated that after firing of the
bullet in which side they have fled away. While in paragraphs-86 to
89, he has totally denied his aforesaid version itself by deposing that
the P.W.-1 and P.W.-2 had never stated with respect to the
commission of crime said to be committed by the present appellant.
31. This Court, after going through the paragraph-82 read with
paragraphs-86 to 89 of the testimony of P.W.-4, the investigating
officer, has found that the version of the investigating officer lacks
trustworthiness.
32. Learned Additional Public Prosecutor appearing for the respondent-
State, at this juncture, has shown the statement so recorded of the
P.W.-1 and P.W.-2 by the investigating officer under Section 161
Cr.P.C.
33. Serious objection has been made on behalf of the appellant that there
cannot be any consideration on the case diary.
34. In the aforesaid context we would like to refer the core of Section
172 Cr.P.C. wherein the provisions for the case-diary have been
dealt with. For ready reference the same is being quoted as under:
"172. Diary of proceedings in investigation.--(1) Every police
officer making an investigation under this Chapter shall day by
day enter his proceedings in the investigation in a dairy, setting
forth the time at which the information reached him, the time at
which he began and closed his investigation, the place or places
visited by him, and a statement of the circumstances ascertained
through his investigation. 11 (1-A) The statements of witnesses
recorded during the course of investigation under section 161
shall be inserted in the case diary. (1-B) The diary referred to in
sub-section (1) shall be a volume and duly paginated.
(2) Any Criminal Court may send for the police diaries of a case
under inquiry or trial in such Court, and may use such diaries,
not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call
for such diaries, nor shall he or they be entitled to see them
merely because they are referred to by the Court; but, if they are
used by the police officer who made them to refresh his memory,
or if the Court uses them for the purpose of contradicting such
police officer, the provisions of section 161 or section 145, as
the case may be, of the Indian Evidence Act, 1872 (1 of 1872),
shall apply."
35. Thus, it is evident that a case diary is maintained by an Investigating
Officer during his investigation for the purpose of entering the day-
to-day proceedings of the investigation. While doing so, the
Investigating Officer should mandatorily record the necessary
particulars gathered in the course of investigation with the relevant
date, time and place. Under sub-section (1-A) and (1-B) of Section
172 of CrPC, the Investigating Officer has to mention, in the case
diary, the statement of witnesses recorded during investigation with
due pagination. Sub-section (1-A) and (1-B) were inserted by Act 5
of 2009 with effect from 31/12/2009. The object of these sub-
sections is to facilitate a fair investigation since a statement made
under Section 161 of CrPC is not expected to be signed as mandated
by Section 162 of CrPC.
36. Further, it is the responsibility and duty of the Investigating Officer
to make due recording in the case diary but there is no corresponding
right under sub-section (3) of Section 172 of CrPC for accused to
seek production of such diaries, or to peruse them, except in a case
where they are used by a police officer maintaining them to refresh
his memory, or in a case where the court uses them for the purpose
of contradicting the police officer. In such a case, the provision of
Section 145 or Section 161, as the case may be, of the Evidence Act,
shall apply.
37. Section 172(3) of CrPC makes a specific reference to Section 145
and Section 161 of the Evidence Act. Therefore, whenever a case is
made out either under Section 145 or under Section 161 of the
Evidence Act, the benefit conferred thereunder along with the benefit
of Section 172(3) of CrPC has to be extended to an accused.
38. Similarly, in a case where the court uses a case diary for the purpose
of contradicting a police officer, then an accused is entitled to peruse
the said statement so recorded which is relevant, and cross-examine
the police officer on that count. What is relevant in such a case is the
process of using it for the purpose of contradiction only and not the
conclusion. Thus, it is clear that though Section 145 read with
Section 161 of the Evidence Act deals with the right of a party
including an accused, such a right is limited and restrictive when it is
applied to Section 172 of CrPC.
39. In other words, in case if the Court does not use such entries for the
purpose of contradicting the police officer or if the police officer
does not use the same for refreshing his memory, then the question
of the accused getting any right to use entries even to that limited
extent does not arise. The accused persons cannot force the police
officer to refresh his memory during his examination in the Court by
referring to the entries in the police diary.
40. It needs to refer herein that Section 145 of the Indian Evidence Act
consists of two limbs. It is provided in the first limb of Section 145
that a witness may be cross-examined as to the previous statements
made by him without such writing being shown to him. But the
Second limb provides that, if it is intended to contradict him by the
writing, his attention must before writing can be proved, be called to
those parts of it which are to be used for the purpose of contradicting
him. Sections 155 (3) and 145 of Indian Evidence Act deal with the
different aspects of the same matter and should, therefore, be read
together.
41. Thus, Section 145 and Section 161 of the Evidence Act on the one
hand and Section 172(3) of CrPC on the other are to be read in
consonance with each other, subject to the limited right conferred
under sub-section (3) of Section 172 of CrPC. But the entries in the
police diary are neither substantive nor corroborative evidence, and
that they cannot be used against any other witness than against the
police officer that too for the limited extent.
42. The Hon'ble Apex Court in the case of Mukund Lal vs. Union of
India and Anr (supra) while considering the question relating to
inspection of the entries made in the case diary by the accused has
observed thus:
"We are of the opinion that the provision embodied in sub-
section (3) of Section 172 of the CrPC cannot be characterised
as unreasonable or arbitrary. Under sub-section (2) of Section
172 CrPC the court itself has the unfettered power to examine
the entries in the diaries. This is a very important safeguard.
The legislature has reposed complete trust in the court which is
conducting the inquiry or the trial. It has empowered the court
to call for any such relevant case diary; if there is any
inconsistency or contradiction arising in the context of the case
diary the court can use the entries for the purpose of
contradicting the police officer as provided in sub-section (3) of
Section 172 of the CrPC. Ultimately there can be no better
custodian or guardian of the interest of justice than the court
trying the case. No court will deny to itself the power to make
use of the entries in the diary to the advantage of the accused by
contradicting the police officer with reference to the contents of
the diaries. In view of this safeguard, the charge of
unreasonableness or arbitrariness cannot stand scrutiny. The
petitioners claim an unfettered right to make roving inspection
of the entries in the case diary regardless of whether these
entries are used by the police officer concerned to refresh his
memory or regardless of the fact whether the court has used
these entries for the purpose of contradicting such police officer.
It cannot be said that unless such unfettered right is conferred
and recognised, the embargo engrafted in sub-section (3) of
Section 172 of the CrPC would fail to meet the test of
reasonableness. For instance in the case diary there might be a
note as regards the identity of the informant who gave some
information which resulted in investigation into a particular
aspect. Public interest demands that such an entry is not made
available to the accused for it might endanger the safety of the
informants and it might deter the informants from giving any
information to assist the investigating agency, as observed in
Mohinder Singh v. Emperor:
"The accused has no right to insist upon a police witness
referring to his diary in order to elicit information which is
privileged. The contents of the diary are not at the disposal of
the defence and cannot be used except strictly in accordance
with the provisions of Sections 162 and 172. Section 172 shows
that witness may refresh his memory by reference to them but
such use is at the discretion of the witness and the judge, whose
duty it is to ensure that the privilege attaching to them by statute
is strictly enforced."
The public interest requirement from the standpoint of the need
to ensure a fair trial for an accused is more than sufficiently met
by the power conferred on the court, which is the ultimate
custodian of the interest of justice and can always be trusted to
be vigilant to ensure that the interest of accused persons
standing the trial, is fully safeguarded.
43. Thus, from the aforesaid discussion it is evident that the police diary
is only a record of day-to-day investigation made by the
investigating officer. Neither the accused nor his agent is entitled to
call for such case diary and also are not entitled to see them during
the course of inquiry or trial. The unfettered power conferred by the
Statute under Section 172 (2) of Cr.P.C. on the court to examine the
entries of the police diary would not allow the accused to claim
similar unfettered right to inspect the case diary. Further, in a case
where the court uses a case diary for the purpose of contradicting a
police officer, then an accused is entitled to peruse the said statement
so recorded which is relevant, and cross-examine the police officer
on that count but if the Court does not use such entries for the
purpose of contradicting the police officer or if the police officer
does not use the same for refreshing his memory, then the question
of the accused getting any right to use entries even to that limited
extent does not arise.
44. At this juncture, it needs to refer herein that it is settled position of
law as discussed in the preceding paragraph that the appellate court
should not reappreciate the evidence at the stage of Section 389
CrPC and try to pick up a few lacunae or loopholes here or there in
the case of the prosecution, such would not be a correct approach
and at this stage Court has only to see the prima facie case for its
satisfaction.
45. Further, the Hon'ble Apex Court in the case of Preet Pal Singh vs.
State of U.P., (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. 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."
46. Thus, it is evident from the aforesaid judgment, that during
considering suspension of sentence which is the post-conviction
stage, the presumption of innocence in favour 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.
47. This Court, at this stage, is considering the issue of suspension of
sentence and as such, without going deep into appreciation of
evidences or legal issue and further on consideration of the testimony
of the investigating officer itself it appears to be contradictory and as
such, this Court cannot discard the testimony of P.W.-1 and P.W.-2
said to be not the eye witnesses.
48. P.W.-1 and P.W.-2 have specifically supported the prosecution
version in the capacity of eyewitnesses and the testimony of
investigating officer so far as it relates to the veracity of the
testimony of P.W.-1 and P.W.-2 also being supported by the
investigating officer as would be evident from paragraph-82 of the
testimony of investigating officer wherein he has testified that the
P.W.-1 and P.W.-2 have not stated that after firing of the bullet in
which side they have fled away while in paragraphs-86 to 89, he has
totally denied the aforesaid version itself by deposing that the P.W.-1
and P.W.-2 had never stated with respect to the commission of crime
said to be committed by the present appellant, therefore in the light
of aforesaid contradictory statement this Court is of the view that the
version of the investigating officer lacks trustworthiness and on the
basis of such statement it will not be correct to doubt the testimony
of P.W.1. and P.W.2 as eye-witnesses.
49. Thus, on the basis of discussion made herein above this Court is of
the considered view that it is not a fit case where the sentence is to
be suspended during pendency of the instant appeal.
50. Accordingly, the instant interlocutory application being I.A. No.
10811 of 2024 deserves to be dismissed, as such, stands dismissed.
51. It is made clear that any observation made hereinabove will not
prejudice the case on merit, since, the criminal appeal is lying
pending before this Court for its consideration.
(Sujit Narayan Prasad, J.)
I agree,
(Navneet Kumar, J.) (Navneet Kumar, J.)
Saurabh/-
A.F.R.
