The appellate court must assess whether a conviction is prima facie unsustainable before granting a suspension of sentence under Section 389 of the Criminal Procedure Code, balancing the seriousness of the offense with the duration of incarceration.

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 original accused No.1 – Dharmendrabhai @ Dhamabhai Vajubhai Makwana under Section 389 of the Code of Criminal Procedure 1973 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 18.10.2022 by the learned 7^th Additional District & Sessions Judge, Ahmedabad (Rural) at Dholka in Sessions Case No.30 of 2021.

3. Learned advocate Mr.B.S.Panchal appearing for the applicant has mainly contended as follows :

(a) That no witnesses have named the present applicant in the alleged crime.

(b) That learned trial Judge has not appreciated the fact that the present applicant being identified in the court room by the complainant Raghuben, Champaben, Laxmiben, Tinabhai, Bhanuben and Rajubhai. However, all these witnesses gathered at the place of incident hearing the screaming of the complainant and had seen accused No.2 inflicting injuries on knees and thigh with pipe. Thus, none of these witnesses have seen the present accused having inflicted any injury to the deceased.

(c) That no independent witness’s statement has been recorded and hence identifying the present accused for the first time in the court does not inspire any confidence.

(d) That even otherwise as per the deposition of Ranguben – original accused No.3 i.e. Dashrathbhai had assaulted Tinabhai on his forehead with wooden stick and she has also further deposed that all the injured were taken to Kalikund Pasharwanath Hospital, Dholka. However, medical certificate does not prove that alleged injuries were inflicted in the said incident.

(e) That panch witness of the discovery of stick from the applicant has not supported the case of the prosecution and hence blood stains alleged to have been found from the stick recovered from the applicant cannot be relied upon.

(f) Lastly, it is argued that the present accused is in jail since 13.6.2016 and almost 8 years have passed. Under such circumstances, it is argued to allow the present application.

4. 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 has vehemently opposed the present application. It is argued that the present application requires no indulgence at the hands of this Court since the contentions raised by learned advocate appearing for the applicant would amount to reappreciation of evidence which this Court should be loath in doing so at the stage of suspension of sentence, more particularly, when no prima facie case of suspension of sentence is made out. It is further argued that learned trial Court has given cogent reasons and well reasoned judgment has been delivered after appreciating both oral as well as documentary evidences. 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 389 of the Code of Criminal Procedure 1973 or not?

7. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order and the evidences produced before the learned trial court. 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 appa