The gravity of the offence and the need for a detailed examination of evidence on merits of the case to be avoided at the time of considering the suspension of sentence.

V.S. Ravi, J.

The petitioner, in both the petitions are appellants 2 and 1 respectively, have filed the petitions, under Section 389(1) Cr.P.C. seeking suspension of sentence imposed on them by the Court below in the sessions case in S.C.No.5 of 2011 by its judgment dated 15.04.2013.

2. The case of the prosecution is that on 04.07.2010 at 03.00 p.m. the accused 1 and 2, due to previous enmity, to commit the murder of Gnanasundar, each accused have possessed with Aruval and attacked the deceased and thereby the accused have committed the murder of Gnanasundar. The petitioners themselves admitted in the petitions that they have been convicted by the lower Court viz., A1 has been convicted for the offences under Sections 294(b), 302 r/w 34 IPC and A2 has been convicted for the offences under Sections 294(b) and 302 r/w 34 IPC and 307 IPC altered into under Section 324 IPC. A1 and A2 have also been sentenced to pay fine. The petitioners have paid the fine amount before the lower Court on 16.04.2014.

3. Aggrieved by the conviction and sentence, the petitioners/Appellants 2 and 1 have preferred appeal in Crl.A(MD).No.143 of 2013 and filed the present petitions seeking suspension of sentence. Further, the petitioners have admitted in their petition that this is the third application for suspension of sentence and the earlier applications in M.P.(MD).Nos.6 and 5 of 2013 seeking suspension of sentence, have been dismissed on 31.01.2014.

4. Brief averments made in the petitions and also the submissions made on behalf of the petitioners by the learned Senior counsel for the petitioners are as follows:

4.1 The judgment of the Court below has to be set aside as the sniffer dog has been summoned and it shows that accused are unknown persons and in the present case the inquest has been conducted on 04.07.2010, but at the time of inquest the crime number has not been mentioned in the inquest, which shows that the inquest has been conducted earlier than the registration of FIR in the present case.

4.2. Further, PW1 in the FIR has given the petitioners overt act against the petitioners and unknown persons, but during the course of evidence, overt act has been mentioned in different way. Thus, the evidence of PW1 cannot be believed and he is not an eyewitness and his evidence is to be hardly believed. The evidence of PW1 and PW2 are contradictory to each other. PW1 has sustained only simple injury and there is a possibility of self infliction. The prosecution has not proved the case beyond reasonable doubt and the lower Court erred in convicting the petitioners without any substantial evidence. Hence, the petitioners prayed for suspension of sentence imposed on them, pending appeal.

5. Per contra, the learned Additional Public Prosecutor has contended that the petitioners have been convicted for grave offence under Section 302 I.P.C. He further submitted that the prosecution witnesses have given clear and cogent evidence regarding occurrence and overt act of the accused and the evidence have been corroborated with exhibits and material objects of the prosecution. The prosecution has proved the guilt of the accused beyond reasonable doubt and on appreciation of the testimonials of the prosecution witnesses, the learned Sessions Judge has found that the petitioner is guilty and sentenced to undergo life imprisonment for the grave offence of Section 302 IPC. Therefore, he prays for dismissal of this petition.

6. Heard the learned Senior Counsel appearing for the petitioners and the learned Additional Public Prosecutor appearing for the State and this Court also perused the materials available on record.

7. The direct point raised for consideration in the present case is:-

Whether the petitioners are entitled to get bail pending appeal for the reasons stated in the present petitions?

8. On a perusal of the lower Court judgment, it is found that the petitioners have been convicted for commission of serious offences. Further, PW1 has stated that the accused