Inconsistencies in witness testimony undermine conviction; a prima facie case supports suspension of sentence pending appeal.

JUDGMENT :

I.A. No. 13670 of 2024:

1. The instant interlocutory application has been filed on behalf of appellant for suspension of sentence dated 22.07.2023 passed in POCSO Case No.11 of 2022 by the learned Special Judge (POCSO)-cum-District and Additional Sessions Judge-I, Chatra in connection with Sadar P.S. Case No.290 of 2021, whereby and whereunder, the appellant has been convicted under Sections 302, 376(D) & 201/34 of IPC and has been directed to undergo imprisonment for life along with fine of Rs.10,000/- u/s 302 of IPC. Further, the appellant has been directed to undergo rigorous imprisonment of 25 years alongwith fine of Rs. 10,000/- u/s 376(D) of IPC. The appellant has further been directed to undergo rigorous imprisonment for 3 years alongwith fine of Rs. 2,000/- u/s 201 of IPC and in default of payment of fine the appellant has further been directed to undergo rigorous imprisonment of 6 months.

2. It has been contended on behalf of the appellant that it is a case where the appellant has been convicted by applying the provision as contained under Section 27 of the Evidence Act since as per the prosecution version, the dead body and the incriminating material which was said to be used by the deceased have been found on the disclosure statement.

3. It has been contended by referring to the testimony of P.W.-1 and P.W.-2 that the discovery of the articles, i.e., slipper and dupatta is before the arrest of the present appellant. It has also been contended that although in the testimony of P.W.-1, the said articles have been deposed to be discovered in the first instance, before the arrest of the present appellant but subsequently, in the same paragraph itself, it has been deposed by the P.W.-1 that the said articles have been recovered after the arrest of the present appellant.

4. It has been further contended that when the version of P.W.-1 itself is in contradiction then the same cannot be said to be reliable evidence.

5. Further, the P.W.-2 has also reiterated the fact that the said articles have been discovered and thereafter, the present appellant has been arrested.

6. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that it is a case where the learned trial court has not appreciated the applicability of the principle of Section 27 of the Evidence Act, therefore, it is a fit case where the sentence is to be suspended.

7. While, on the other hand, learned Additional Public Prosecutor appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence.

8. It has been contended that if the testimony of all the witnesses will be taken into consideration together, then the finding recorded by the learned trial court leading to conviction of the present appellant cannot be said to suffer from any infirmity and as such, it cannot be said to be a case of suspension of sentence.

9. We have heard the learned counsel for the parties and gone through the finding recorded by the learned trial court in the impugned judgment as also the testimony of the witnesses and other material exhibits available therein.

10. The conviction is primarily based upon the applicability of the provision of Section 27 of Evidence Act. Section 27 speaks that if on disclosure made by the accused person leading to recovery then the said provision is to be made applicable.

11. This Court, in order to ascertain the aforesaid fact, has considered the testimony of P.W.-1 and P.W.-2.

12. It is evident from the testimony of P.W.-1 itself wherein two versions have been deposed by the said witness, i.e., at the initial stage, it has been deposed that the articles have been discovered before the arrest of the prese