The court may suspend a sentence if there appears a prima facie case for acquittal, emphasizing the need for credible evidence and proper procedure in recording dying declarations.

ORDER :

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

2. By way of this application under Section 430 (1) 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 20.9.2024 by the learned Sessions Judge, Bharuch in Sessions Case No.50 of 2022.

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 senior advocate Mr.Sudhir Nanavati appearing for the applicant has mainly contended as follows:

(a) That none of the witnesses have supported the case of the prosecution and have been declared hostile and despite cross examination of the said witnesses by the prosecution, nothing fruitful has come on record to prove the case of the prosecution beyond reasonable doubt.

(b) That the panch witnesses have also turned hostile, more particularly, discovery panchas and thus, it cannot be said that the prosecution has proved discovery of alleged weapon used in the crime being pointed out by the present accused.

(c) That the case of the prosecution was based on allegation that harassment was caused by the present accused to the wife of the complainant who has been examined at Exh.30 and upon considering her deposition, she has categorically stated that she is not aware about the incident and has denied also with regard to the allegation of harrassment by the present accused for sending her messages. This witness has further denied altercation between her husband and the complainant and she has been declared hostile.

(d) That the complainant who has been examined Exh.28 i.e. Mehulbhai Rajeshbhai Chauhan has also turned hostile.

(e) That the brother, father and mother of deceased Priyank Dharmeshbhai Mahant have also turned hostile and have not supported the case of the prosecution.

(f) That the learned trial Judge has erred in relying upon so called only dying declaration which is not reliable, more particularly, when Dr.Rashmikant Jagjivanbhai Chaudhary who has been examiined at Exh.35 has specifically stated that the deceased was in drowsy condition and nowhere in the history has he named the present accused. What has been stated before this Doctor is that friend of his had inflicted injuries in the stomach. This Doctor has further deposed that one chatacteristic of drowsiness in the patient is that the patient is not conscious and is not completely responsive and he is not mentally alert and that aspect has been given total go-bye by the learned trial Judge.

(g) That the learned trial Judge has materially erred by relying upon the deposition of Ashaben Mahendrasinh Raol at Exh.49 – Deputy Mamlatdar who has recorded alleged dying declaration of the deceased coupled with the fact that she has not obtained any fitness certificate of the patient from the treating Doctor or any Doctor of the Apex Hospital where the deceased was under treatment.

(h) That the dying declaration recorded by the Deputy Mamlatdar is without obtaining any primary satisfaction from the Doctor on duty about the state of consciousness and the capability of the partient to record the alleged declaration, more particularly, in absence of any fitness and conscious certificate issued by the Doctor on duty in ICU on the date of recording the dying declaration i.