Suspension of sentence granted based on long-term incarceration and lack of immediate appeal prospects in a serious case of culpable homicide.

JUDGMENT :

(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)

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

2. The present application is preferred by the applicant – original accused under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 1.4.2024 by the learned 8^th Additional Sessions Judge, Surat at Bardoli in Special Atrocity Case No.4 of 2017.

3. Learned advocate Mr.Hardik Raval appearing for the applicant has mainly contended as follows :

(a) That the applicant is in judicial custody since 8.8.2016 and has completed more than 8 years and there is no likelihood of appeal being heard in near future.

(b) It is further argued that from the charge itself, it is clear that incident has taken place out of quarrel between the deceased and the accused and as per the case of the prosecution, on 17.8.2016, the deceased did turn up for the work and therefore, applicant accused at 8.00 O’clock in the morning went to pick him up; however, he declined to accompany him for the work and because of this, quarrel has taken place and at that time, the applicant accused used abusive language to which the applicant accused got annoyed and picked up spade which was lying near and inflicted injuries on the head of the deceased, due to which, the deceased expired on 30.8.2016. Thus, it is argued that the incident has taken place on the spur of moment without any premeditation because of quarrel and thus, this is a clear case of culpable homicide not amounting to murder lacking intention to kill though knowledge may be attributed and thus, it is argued to allow the application.

4. Though served none appears for the original complainant.

5. On the other hand, Mr.Pranav Dhagat, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction and has opposed the present application. It is submitted that the contentions raised by learned advocate for the applicant would amount to reappreciating the evidence which is not permissible while deciding the application for suspension of sentence. It is submitted that learned trial Judge has given cogent and convincing reasons and after appreciating the documentary as well as oral evidence and merely because 8 years and 11 months have passed is no ground to suspend the sentence and release the applicant on bail more particularly, when the complicity of the accused in serious crime of murder is proved beyond reasonable doubt. Under the circumstances, it is 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 Nagarik Suraksha Sanhita 2023 or not? 8. We have carefully considered the submissions made by learned advocates for both the sides. We have also perused the impugned judgement and order. In a serious offence of attracting the rigorous punishment, 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 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 considere