Suspension of sentence may be granted if a prima facie assessment shows the conviction may not be sustainable, particularly in serious offences, while considering 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 – Ishwarbhai @ Laxmanbhai Maknabhai Katara under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 15.3.2018 by the learned Additional Sessions Judge, Mahisagar at Lunawada in Sessions Case No.36 of 2017.

3. The facts of the case in nutshell are as follows:

3.1. The applicant along with his wife and father were charged with the offence under sections 302 read with 114 of the INDIAN PENAL CODE , 1860. It is the case of the prosecution that the deceased and the applicant herein were engaged in carpentry work. There was some dispute between the two and therefore they parted their ways from each other. Allegedly the deceased had given Rs.25,000/- to the applicant herein when the wife of the applicant was not well. It is also alleged that at the relevant time, the deceased had carried out carpentry work for the house of the applicant as well and therefore the deceased was demanding money from the applicant for both. It is alleged that therefore on 12.07.2014 when the deceased came to the house of the applicant for getting the amount back, a quarrel took place between the deceased on one hand and the accused persons on the other hand whereby the deceased was strangulated and done to death.

3.2 After completion of trial, the present applicant – original accused along with one other accused were convicted. Hence, the present application for suspension of sentence.

4. Learned advocate Mr.Nirad Buch appearing for the applicant has mainly contended as follows :

(a) That the present applicant has completed more than 10 years of incarceration.

(b) That last seen theory is not proved.

(c) That the entire case is based on circumstantial evidence and chain of circumstances having independently and collectively not proved, the present application is required to be allowed.

(d) That there are material contradictions in the depositions of the witnesses. However, learned trial Court has given go-bye to such contradictions and has wrongly passed the impugned judgment and order. Thus, it is argued to allow the present application.

5. On the other hand, Mr.Aditya Jadeja, 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 counsel 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. Under the circumstances, learned APP has argued to reject the present application.

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

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

8. 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 apparent or gross error on which this Court can arrive a