The court found that mere presence at the scene of a crime without substantive involvement can justify suspension of sentence in appeal for serious offenses.

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 of the Bhartiya Nagarik Nayay Sanhita 2023, the applicants seek suspension of sentence awarded to them vide judgment and order of conviction and sentence dated 7.2.2025 by the learned Sessions Judge, Devbhumi Dwarka at Khambhaliya in Sessions Case No.17 of 2017.

3. By the aforesaid judgment and order of conviction and sentence, the present applicants convicts have been held guilty for the commission of offences as stated hereinbelow :

4. Learned advocate Mr.Virat Popat submitted the following glaring aspects from the impugned judgment seeking prayer for suspension of sentence of the present applicant – original accused Nos.2 to 9:

(a) That the present accused and the complainant are closely related and are cousins and known to each other. However, initially only five accused were named and subsequently, the present accused Nos.3, 4, 5 and 9 were added as accused with a view to ensure entire family of the accused suffer incarceration.

(b) That deceased Abdul Bachu Bhagad succumbed to the injuries on account of the vehicle being driven by accused No.1 Nazirbhai Adambhai Jasraya and none of the present applicants have played any role except for sitting in the car.

(c) That there is no evidence to bring home the charges attracting sections 149 and 34 of IPC and it is specific case of the prosecution that incident had occurred on account of initial dispute between the accused No.1 and the complainant side.

(d) That the prosecution witnesses have admitted the fact that initially car was dashed by accused No.8 to other victim. However, it was not fatal in nature. However, accused No.8 was beaten by the prosecution witnesses. After this incident, the second incident occurred wherein accused No.1 was driving the car which hit over and in such incident Abdul Bachu Bhagad had expired.

(e) That even if the case of the prosecution is accepted in its entirety, no overact is attributed to the present applicants.

(f) The present applicants have neither used any weapon nor have assaulted any of the member of the complainant party and it is only accusation against accused No.1 of dashing the car on account of which Abdul Bachu Bhagad expired.

(g) It is, thus, argued that prima facie, there is no evidence on record to bring home the charges of sections 149 and 34 of IPC since the role attributed to accused Nos.2 to 7 and 9 are with regard to accompanying the original accused Nos.1 and 8 and that entire incident has taken in two parts and in the first part, accused No.8 – Sidikbhai Adambhai Jasraya had dashed the car with the complainant party where Daudbhai and his son Javed had been injured. Except this role, nothing is attributed against accused No.8 or accused Nos.2 to 7 and 9. Hence, he has prayed for suspension of sentence.

5. On the other hand, Ms.C.M.Shah, 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 present accused have been convicted for serious offences punishable under sect