The court's decision was based on the evidence of constant communication through mobile phones, recovery of mobile and SIMs, and the motive, in line with the judgment of the Hon'ble Supreme Court in the case of Preet Pal Singh.

JUDGMENT

1. These two suspension of sentence applications have been filed under Section 389 CrPC.

2. Learned counsel for the accused appellants Yogesh @ Nitish @ Yogi and Shivkishan @ Shoukeen submits that out of total 10 accused persons, 3 have been acquitted and 7 have been convicted. He further submits that the two persons, against whom the allegation is for causing fire arm injury, are not before this Court. He further submits that PW-2 Prem Devi (wife of deceased) and PW-11 Mukesh Kumar have not given any evidence against the accused appellants.

3. Learned counsel for the accused appellants Shiv Charan and Rajesh @ Monu submit that the date of incident is 9.6.2015, but the mobile was purchased by accused appellant Shiv Charan on 27.6.2015 (vide Ex. P-143). The accused persons have been falsely implicated in this matter, hence their sentence is required to be suspended.

4. Learned PP appearing for the State assisted by counsel for the complainant have opposed the same and submit that the mobile phones with SIMs were recovered from the possession of the accused persons on the basis of information furnished by them in this regard. The accused persons were in constant touch with one another through mobile phone, which is quite evident from their call details. From the prosecution evidence, it is well established that before the date of incident i.e. from 27.5.2015 to 3.6.2015, accused Yogesh stayed in Om Palace Hotel at Gangapur City, for which no explanation was submitted. They further submit that accused Shivcharan and Rajesh @ Monu were having grudge in relation to a land, for which civil dispute was going on. For this purpose, the accused appellants hatched a conspiracy and committed the murder of Dr. Prakash Chand Agarwal. They further submit that accused Rajesh @ Monu and Shiv Charan gave ransom amount to Shiv Kishan @ Shoukin and thereafter accused Shiv Kishan @ Shoukin deposited the amount in the account of accused appellant Yogesh @ Nitin @ Yogi. In this way, there was money transaction amongst the accused appellants and they were in constant touch with one another through mobile. Even a country made katta and live cartridge were also recovered from the accused appellants. In the medical evidence, the Doctor opined that the injury caused to Prakash Chand was sufficient to cause death in the ordinary course of nature.

5. Learned counsel for the complainant further submit that the accused appellants were not on bail and during trial, they were in jail. He has drawn the attention of the Court towards the judgment of the Hon'ble Supreme Court in the case of Preet Pal Singh Versus State of Uttar Pradesh and another reported in (2020) 8 Supreme Court Cases 645, and contended that it has been held by the Hon'ble Apex Court in the aforesaid case that where there is evidence, that was considered by trial court, it is not open to court considering application under Section 389 CrPC, to reassess and / or re-analyze same evidence and take different view, to suspend execution of sentence and release convict on bail. He further submits that against the acquittal of three accused persons by the trial court, the complainant Smt. Prem Devi has filed a D.B. Cr. Appeal before this Court, which has been admitted and warrant has been issued against the accused respondents therein. He further submits that findings of the trial court are based on proper appreciation of evidence and prosecution has proved its case beyond reasonable doubt, hence the sentence of the accused appellants should not be suspended.

6. Heard. Considered.

7. On a query by this Court, as to why the accused appellants were in constant touch with one another through mobile phone, learned counsel for the appellants could not give any answer.

8. Taking into consideration the facts and circumstances of the case and more particularly in view of the fact that the accused appellants were in constant touch through mobile, which is quite evident from the call details, recovery of mobil