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.

ORDER :

P. M. RAVAL, J.

1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State.

2. The present application is preferred by the applicant – original accused under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 2.7.2018 by the learned 3^rd Additional District Judge, Bharuch in Sessions Case No.7 of 2015.

3. Learned advocate Ms.Mayuri P.Chauhan appearing for the applicant has mainly contended as follows:

(a) That the applicant has undergone 9 years and more in custody and it is not likely that the main appeal would be heard in near future and the main accused Dilipkumar has been enlarged on bail by the coordinate bench of this Court vide order dated 20.2.2023 and has prayed to enlarge the applicant on bail.

(b) That the present applicant is not named in the FIR nor has the applicant being identified and merely on suspicion, the applicant has been arrested and convicted in the crime.

(c) That when the main accused had inflicted injury due to which the deceased succumbed and when no role whatsoever of injury has been attributed to the applicant, the application is required to be allowed.

4. On the other hand, Mr.L.B.Dabhi, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and has vehemently opposed the present application. It is submitted that the impugned judgment and order of conviction passed by the learned trial Court is well reasoned order after appreciating both the oral as well as documentary evidences and hence, no interference is required. It is submitted that the applicant is a co- conspirator and learned trial Court having given cogent and convincing reasons for convicting the applicant and that reappreciation of the evidence is not permissible while deciding the application for suspension of sentence, more particularly, when the applicant is found to have committed murder. Under the circumstances, learned APP has argued to reject the present application.

5. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused.

6. The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 or not?

7. We have carefully perused the impugned judgement and order. In a serious offence of attracting the punishment under Section 302 of IPC, the Appellate Court has to assess the record only to see as to whether there is any apparent or gross error on which this Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitable to refer to the decision in the case of Omprakash Sahni Vs Jai Shankar Chaudhary and Another, reported in (2023) 6 SCC 123 . It has been observed while considering the scope of Section 389 of CrPC as under :

“30. In Kishori Lal v. Rupa [Kishori Lal v. Rupa, (2004) 7 SCC 638), this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-40, paras 4-6)

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for o