The court may suspend a sentence if the applicant demonstrates insufficient evidence of involvement in the crime, allowing for bail pending appeal.

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. By way of this application under Section 430(1) of BNSS, 2023, the applicant Kamleshkumar Manubhai Parmar, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 364, 365, 506(2), 302, 201, 34, 120B of the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 15.03.2017 and order of sentence passed in Sessions Case No.7 of 2014, whereby, the applicant herein was convicted and sentenced as under :

4. Facts and circumstances giving rise to file appeal as well as this application are that on 29.07.2013, minor Pankaj aged about 10 years, had been kidnapped for the purpose of ransom and mercilessly killed by the four accused. Pursuant to the FIR, the accused were arrested and chargesheet was being filed against them. The accused were tried by the Sessions Court, Anand and at the end of trial, with the aid of Section 120B, the accused have been convicted and sentenced as indicated above.

5. Learned advocate Mr. H. A. Dave, appearing on behalf of the applicant while praying for suspension of sentence contended that, there is no evidence of  conspiracy and meeting of mind between the accused and the only evidence qua the applicant – accused no. 4 is the motor-bike which was allegedly used by the principal accused. The applicant accused had not participated in the offence, nor asked the amount of ransom and was not present at the place of incident, where the deceased was killed. In such circumstances, considering the long incarceration and possible delay in deciding the appeal, Mr. Dave, learned advocate prays for suspension of sentence and grant of bail.

6. On the other hand, Mr. Jay Mehta, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that, having regard to the nature of offence and evidence on record, the court below has not committed any error while holding the accused guilty for the offence.

7. Issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence?

8. We have carefully examined the case records and considered the submissions made at the bar. Prima- facie, we are of the view that, except the evidence of motor-bike, nothing incriminating material found against the applicant – accused no. 4. In such circumstances, having regard to the role attributed to the applicant herein and evidence on record, without much discussion on evidence of the case, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 15.03.2017 by the learned 3^rd Additional Sessions Judge, Anand, in Sessions Case No. 7 of 2015 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not change his address and in case of change in address, shall inform to the concerned police station as well as to this Court. Direct service permitted.