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ILESH J. VORA, VIMAL K. VYAS
Ashumal @ Asharam – Appellant
Versus
State of Gujarat – Respondent
JUDGMENT (IA)
Ilesh J. Vora, J.—Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.
2. By way of this application under Section 389(1) of the Code of Criminal Procedure, the applicant –Accused no.1 – Ashumal @ Asharam Thaumal Sindhi Harpalani, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offences punishable under Sections 376(2)(C), 377, 354, 342, 357, 506(2) of the IPC.
3. The present appeal and the application for suspension of sentence arise from the judgment dated 31.01.2023 and order of sentence passed in Sessions Case No. 34 of 2014, whereby, the applicant herein was convicted and sentenced as under:
| Section | Imprisonment | Fine | Default Sentence |
| 376(2)(C) | Life | 10,000 | SI for 1 yr |
| 377 | Life | 10,000 | SI for 1 yr |
| 354 | 1 yr | 1,000 | SI for 3 months |
| 342 | 6 months | 500 | SI for 3 months |
| 357 | 1 yr | 500 | SI for 1 month |
| 506(2) | 1 yr | 1000 | SI for 3 months |
4. We have heard learned Senior Counsel Mr. Yogesh Lakhani, assisted by Mr. Ashish Dagli, learned advocate appearing for and on behalf of the applicant– accused, Mr. Bharat Naik, learned Senior Couns
Suspension of sentence and grant of bail – Societal concerned has to be kept in view in juxtaposition of individual liberty and societal concern deserve to be given priority over lifting restrictions....
The court acquitted the appellants due to insufficient evidence and inconsistencies in the victim's testimony, emphasizing the need for credible proof in sexual offense cases.
The court emphasized that suspension of sentence post-conviction requires strong reasons, as the presumption of innocence is no longer applicable.
Suspension of sentence is only granted in exceptional circumstances, particularly when the conviction may not be sustainable, which was not established in this case.
The court reaffirmed that the discretionary power to suspend a sentence under Section 389 of the Cr.P.C. requires a prima facie case and consideration of the gravity of the offense.
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