The credibility of an eye witness can be undermined by their conduct during the incident, affecting the sufficiency of evidence for conviction.

ORDER :

I.A. No. 11946 of 2024

The instant interlocutory application has been filed under Section 430(1) of the BNSS, 2023 for suspension of sentence of the appellants in connection with the judgment of conviction dated 27.08.2024 and order of sentence dated 29.08.2024 passed in Sessions Trial No. 177 of 2019 arising out of Borio P.S. Case No. 39 of 2019 by the learned Additional Sessions Judge-III, Sahibganj whereby and where under, the appellants have been convicted for the offence punishable under Section 302/34 of the IPC and have been sentenced to undergo imprisonment for life and a fine of Rs. 5,000/- each and a default sentence of S.I. for 3 months.

2. It has been contended on behalf of the appellants that on perusal of the testimony of P.W.3, who is considered to be an eye witness by the learned Trial Court, it would be evident that his testimony cannot be said to be trustworthy if the entire conduct of the said witness is taken into consideration.

3. Learned counsel for the appellants has referred to the testimony of P.W.3 who has stated that he was accompanying the deceased when they were called upon by the appellant Barka Soren for drinking liquor. Upon which, the deceased entered into the house of the appellants and P.W.3 stood outside the house and when he heard the noise of quarrel, he rushed to the house of the deceased for the purpose of giving information and thereafter returned back to the place of occurrence along with the sister of the deceased where he saw both the appellants were giving blow of axe on the head of the deceased.

4. It has been contended by the learned counsel for the appellants that the said conduct of P.W.3 cannot be said to be normal, since, he being the nephew of the deceased, after hearing noise of quarrel, ought to have rushed to the place of occurrence for saving the life of his uncle, instead he rushed to the house of the deceased for giving information to the wife of the deceased. This conduct of P.W.3 shows that he cannot be said to be a trustworthy witness.

5. Further, argument has been made that the Investigating Agency has not taken any initiative to connect the connectivity of the commission of crime said to be committed by the appellants by going in details so as to get a authentic report since there was no examination as to whether the blood stain found in gamcha was of the deceased or not.

6. Argument has also been advanced that there was no motive for the appellants to commit the said crime rather there is a high probability of malafide intention of P.W.3, who happens to be the nephew of the deceased, to grab the landed property and question to that effect was also put upon the witnesses.

7. Learned counsel for the appellants, based upon the aforesaid grounds has submitted that it is a fit case for suspension of sentence.

8. While on the other hand, learned A.P.P. has vehemently opposed the prayer for bail.

9. It has been contended by the learned A.P.P. that P.W.3 is the eye witness before whom the entire occurrence took place. It has been submitted that P.W.3 in his examination-in-chief has categorically supported the prosecution version of witnessing the commission of crime of giving assault by an axe by the appellants upon the deceased due to which he fell down and subsequently when he was being taken to the hospital he died on the way.

10. Learned A.P.P. has relied upon the F.S.L report and submitted that it is not fit case for suspension of sentence.

11. We have heard the learned counsels for the parties and gone across the findings rendered by the learned Trial Court in the impugned judgment. We have also gone through the testimonies of the witnesses and the exhibits available in the L.C.R.

12. This Court in order to appreciate the arguments advanced on behalf of the parties, particularly the conduct of P.W.3, who is considered to be the eye witness, has gone through the testimony of P.W.3 in its entirety and found that P.W.3 was accompanying the deceased and other villagers while