The presence of hostile witnesses does not negate the sufficiency of evidence supporting a conviction when corroborated by other credible testimonies.

ORDER :

1. The present second application for suspension of sentence under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) has been filed on behalf of the applicant, who has been convicted for the offences punishable under sections 147, 148, 302 read with 149, 307 read with 149, 323 read with 149 and 435 read with 149 of Indian Penal Code, 1860, vide order dated 11.07.2023, passed by learned Additional Sessions Judge No.4, Bikaner (hereinafter referred to as ‘trial court’) in Sessions Case No.06/2012 (CIS No.594/2014).

2. Arguing the application for suspension of sentence, Mr. Choudhary, learned Senior Counsel submitted that the applicant has been wrongly convicted by the trial Court and without there being any incriminating evidence against him, the trial Court has found him guilty of committing murder of the deceased – Prabudh @ Sonu Sharma. He argued that the order impugned is based on conjectures and surmises.

3. Inviting Court’s attention towards the contents of FIR, learned Senior Counsel submitted that the first informant – Sher Singh himself has turned hostile when he appeared in the witness box.

4. Learned Senior Counsel further submitted that the so called eye-witnesses namely Kalu Singh (PW-2), Sher Singh (PW-3), Poonam Singh (PW-4) and Virendra Kumar (PW-5) have also turned hostile and the applicant has been convicted only on the basis of testimony of three eye-witnesses Gordhan Singh (PW-6), Murlidhar (PW-16) and Surendra Singh (PW-17). He argued that when more than half of the witnesses turned hostile it was not proper to conclude that the applicant is guilty of murder.

5. Learned Senior Counsel invited Court’s attention towards the statement of Dr. MK Rohilla (PW-11), who conducted the post- mortem and submitted that he has deposed that the deceased – Prabudh Sharma had suffered 23 injuries, out of which 22 were of simple nature.

6. Learned Senior Counsel argued that the nature and the number of injuries (23) which the deceased -Prabudh Sharma had suffered cannot be caused as alleged – if he was hit by the jeep.

7. Learned Senior Counsel further submitted that there was no animosity between the applicant and the deceased- Prabudh Sharma and in absence of any motive, the applicant could not have been convicted for the offence punishable under section 302 of the Indian Penal Code, 1860.

8. It was further argued that there was no external injury caused on the liver of the deceased.

9. Mr. Choudhary further argued that other co-accused persons namely Govind Ram, Hari Ram @ Rama, Vijay Pal, Dharma Ram have already been released on bail by this Court on 28.05.2024, as their application for suspension of sentence (D.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.549/2024) has been allowed.

10. Learned Public Prosecutor vehemently opposed the application for suspension of sentence by contending that the last argument advanced by Mr. Choudhary about suspension of sentence of co-accused persons does not provide any help to the applicant. He pointed out that the present applicant had also filed the application for suspension of sentence alongwith those co-accused persons, however, his application was withdrawn, after realizing that his case was different from that of other co-accused persons.

11. Learned Public Prosecutor further submitted that true it is, that Sher Singh (PW-3) has turned hostile but so far as factum of hitting the deceased with jeep is concerned, the same has been admitted by him. He argued that Sher Singh (PW-3) has turned hostile only to the extent of identification of the accused persons including the applicant and argued that to the extent of incident, his testimony deserves to be read and believed.

12. Learned Public Prosecutor further submitted that the fact that Sher Singh (PW-3) has turned hostile hardly helps the applicant’s cause inasmuch as other witnesses Goverdhan Singh (PW-6), Murlidhar (PW-16) and Surendra Singh (PW-17) have in unison suppor