The appellate court emphasized that suspension of sentence requires a prima facie examination of potential errors in conviction, especially in serious offences where identification of the accused is flawed.

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 – Nareshbhai Rameshbhai Palas - original accused 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 10.3.2025 by the learned 3^rd Additional Sessions Judge, Panchmahal at Halol in Sessions Case No.94 of 2022 whereby the applicant – original accused came to be convicted and ordered to undergo life imprisonment for the offence under Section 395 of INDIAN PENAL CODE and also to pay a fine of Rs.25000/-.

3. Learned advocate Mr.Pratik Barot appearing for the applicant has mainly contended as follows :

(a) That the applicant is in custody from his actual date of arrest i.e. 3.7.2022.

(b) That the judgment and order of conviction passed by the learned trial Court is prima facie erroneous which is apparent from the bare reading of the judgment itself.

(c) That the prosecution witness Nos.4 to 7 who are crucial witnesses have not identified the applicant coupled with the fact that no identification parade has also been carried out for the present applicant.

(d) That the entire conviction is based on information being given by the Investigating Officer with regard to involvement of the present applicant in the alleged crime. That no identification parade has been carried out for the present applicant coupled with the fact that sketch of the present applicant was also not prepared because his face was covered with the piece of cloth and merely identifying the accused for the first time in the trial Court is of no help to the prosecution.

(e) That there is no recovery or discovery of the articles and has thus argued to allow the present application.

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 argued that learned trial Court has recorded the reasons on page 24 onwards till page 30 discussing in detail in tabular form with regard to the contentions raised by the accused before the learned trial Court and appreciation of evidence and hence, well reasoned order is passed and therefore, it is argued to reject the present application.

5. Heard learned advocates for the respective parties and also gone through the charges levelled against the present applicant 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 Suraksha Sanhita 2023 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 attracting the punishment of life imprisonment, the Appellate Court has to assess the record and 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.