Suspension of sentence in serious offences like murder requires a careful examination of evidence, with the possibility of qualifying for lesser charges providing grounds for temporary release.

JUDGMENT :

P.M. RAVAL, J.

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

2. By way of this application under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023, the applicant – original accused No.1 seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 25.05.2017 by the learned Sessions Judge, Valsad in Sessions Case No.36 of 2014.

3. By the aforesaid judgment and order of conviction and sentence, the present applicant - convict has been held guilty for the commission of offences as stated hereinbelow :

4. Learned Advocate Mr. B. K. Dave has argued that there was no strong motive or intention to kill anyone as per the case of the prosecution. It was a sudden quarrel which suggested that the present case has not predetermination incident, and thus, the four corners of Section 302 would not be applicable. It is argued that the present case was an incident of grave provocation and an intention of allege the offence, and the allege incident occurred during the match of volleyball; that the accused and the deceased had some quarrel in sudden provocation. The present incident has taken place and thus, it suggested that there was no pre-motive or intention to commit crime. It is submitted that there is variation of determination with regard to the allege incident from the prosecution witnesses, which create serious doubt with regard to the genesis of the incident, and the prosecution has failed to prove his case beyond reasonable doubt; that there is a contradictory evidence between the oral and the medical evidence, discovery of weapon, type of incident, and that the evidence is also not credible and hence, inspired confidence. However, the Trial Court have committed error in convicting the present applicant; that Pankajbhai Shivabhai, who is crucial witness of the cause of incident, has admitted that he had left a place on incident before the incident took place. This creates serious doubt. Hence, Trial Court has committed error in convicting the applicant and has prayed to suspend the sentence till the final disposal and pendency of the appeal.

5. Ld. Additional Public Prosecutor Ms. Chetna M Shah, has argued that Trial Court has given cogent and convincing reason for applying the oral as well as documentary evidence and has convicted the present applicant for committing murder; and the ground raised by the applicant would require re-appreciation of evidence which cannot be done at this stage of suspension of sentence, and no prima facie case has been made out for suspension of sentence in grievance offence like murder. Hence, argued to reject the present application. It is further argued that minor infirmity whatsoever, whether destroy the case of prosecution or not, cannot be seen at this stage. And since conviction is in Section 302 for life imprisonment, no indulgence is required at the hands of this Court and argued to reject the present application.

6. 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 at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitabl