Suspension of sentence under Section 389 requires a strong case, considering the gravity of the crime and the applicant's past conduct, which was not established in this instance.

ORDER :

HEMANT M. PRACHCHHAK, J.

1. By way of this application under Section 389(1) of the Code of Criminal Procedure, 1973 the applicant Himanshubhai Mahendrabhai Rathod, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302 and 364(A) of the Indian Penal Code.

2. The present appeal and the application for suspension of sentence arise from the judgment dated 20.01.2022 and order of sentence passed in Sessions Case No. 25 of 2018, whereby, the applicant herein was convicted and sentenced as under:

3. Facts and circumstances giving rise to file appeal as well as this application are that, daughter of the complainant namely Tripadaben was knowing the applicant and was asked to meet him and when she came, the applicant took her in a car driven by co-accused. It is the case of the prosecution that, the applicant alongwith other co- accused throttled the daughter of the complainant to death, kept the dead-body in the car and they moved at various places, ultimately, they at a lonely place, they threw the dead-body. Thereafter, ransom call was given from the mobile number of the deceased Tripadaben, which was destroyed thereafter and no further phone call was given for ransom. It is the case of the prosecution that both the accused were suspected in another identical murder case, getting clue from that, the accused were interrogated, discovery panchmana was disposed, CDR was collected, charge sheet was filed and the case was committed to the Court of Sessions where the trial was conducted and at the end of the trial, the learned Sessions Court has convicted the applicant for the offences as referred above.

4. Learned advocate Mr. Nikhilesh J. Shah, appearing on behalf of the applicant while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law, as the applicant was convicted for the alleged offence only on the basis of circumstantial evidence and there was no direct evidence against the present applicant. He has submitted that the applicant was falsely robed in the serious crime in question only on the ground of suspicion and there was no direct evidence against the applicant. He has further submitted that the witnesses, who were examined before the trial court, were the interested witnesses whose oral evidence was considered and believed by the trial court and therefore, on the said premises, the conviction is imposed. He has further submitted that the ingredients of Section 364(A) was not at all proved against the present applicant. He has submitted that the deceased was aged 24 years and was residing with her grand-mother at village Chanasma and was pursuing her studies at Dharnodharda and therefore, she used to travel from village Chanasma to Dharnodharda for her studies and on 13.09.2017, the complainant received a phone call asking for ransom money for relieving her daughter and thereafter, the deceased was murdered and the dead-body was thrown into a ditch near the place of occurrence. He has submitted that there was no clinching evidence brought on record by the prosecution to prove the guilt against the present applicant, however, the trial court has wrongly convicted the present applicant for the alleged crime. He has further submitted that there was a material discrepancy in the evidence considered by the trial court and there are serious lacuna in the case of the prosecution which leads to ultimate conclusion and the present applicant was falsely implicated in the heinous crime in question. He has submitted that there was no evidence with regard to last seen together as it was not established by the prosecution nor the CDR or the mobile call record of the deceased could connect the applicant with the crime in qu