HIGH COURT OF GUJARAT
ILESH J. VORA, SANDEEP N. BHATT, JJ
BHAVESHBHAI RAGHUBHAI KUGASHIYA – Appellant
Versus
STATE OF GUJARAT – Respondent
ORDER :
(ILESH J. VORA, J.)
1. Rule. Learned APP waives service of Rule on behalf of respondent-State. By consent, Rule is fixed forthwith.
2. We have heard Mr. Virat Popat, learned counsel for the applicants and Mr. L B Dabhi, learned APP for the respondent-State.
3. By way of this application under Section 430(1) of Bharatiya Nagarik Suraksha Sanhita, 2023, applicants seek suspension of sentence awarded to them by the Sessions Court concerned for the offence punishable under Sections 307, 143, 323, 324, 325, 447, 147 and 148 r/w Section 149 of the IPC.
4. The present appeal and the application for suspension of sentence arise from the judgment dated 30.12.2024 and order of sentence passed in Sessions Case No.98 of 2014, whereby, the applicants herein were convicted and sentenced as under:
(i) Section 307 r/w. Section 149 of IPC: R.I. for life and fine of Rs.2,50,000/- and in default thereof, further imprisonment for 1 year;
(ii) Section 143 r/w. Section 149 of IPC: R.I. for 6 months;
(iii) Section 323 r/w. Section 149 of IPC: R.I. for 1 year;
(iv) Section 324 r/w. Section 149 of IPC: R.I. for 3 years;
(v) Section 325 r/w. Section 149 of IPC: R.I. for 7 years;
(vi) Section 447 r/w. Section 1
The invocation of Section 149 IPC for conviction is improper if fewer than five identified individuals are charged, as essential conditions for unlawful assembly are not met.
In cases of free fight, liability is individual, and Section 149 cannot be invoked for constructive liability, as established by the Supreme Court.
The court may suspend a sentence if the conviction appears to be against the evidence and established legal principles.
The court found that mere presence at the scene of a crime without substantive involvement can justify suspension of sentence in appeal for serious offenses.
The court established that a defendant can seek suspension of sentence if strong prima facie evidence suggests that conviction may not be sustainable, particularly when serious charges are involved.
The court may suspend a sentence if the applicant demonstrates insufficient evidence of involvement in the crime, allowing for bail pending appeal.
The mere presence of an accused does not imply shared intention to commit murder; suspension of sentence granted due to lengthy incarceration and fair chances of appeal.
The appellate court emphasized that suspension of sentence requires a prima facie examination of potential errors in conviction, especially in serious offences where identification of the accused is ....
The court may suspend a sentence during the appeal process if the applicant has served a significant portion of the sentence and no exceptional circumstances exist to deny such suspension.
Suspension of sentence in a serious offence requires substantial evidence and consideration of the likelihood of acquittal; conviction cannot stand without corroboration.
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