Suspension of sentence during appeal requires assessment of prima facie merits and exceptional circumstances, balancing incarceration duration against the nature of the conviction.

ORDER :

P. M. RAVAL, J.

1. The present application is preferred by the applicant – original accused under Section 389 of the Code of Criminal Procedure 1973 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 20.3.2013 by the learned Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case No.84 of 2010.

2. Learned senior advocate Mr.B.B.Naik appearing for the applicant has mainly contended as follows :

(a) That other co-accused in the present case i.e. Jignesh Soni has been considered by this Court in Criminal Misc. Application No.1 of 2020 and vide order dated 7.2.2020, he has been released on bail by suspending the sentence and hence, the present application is also required to be allowed on the basis of parity.

(b) That learned trial Court has failed to appreciate glaring and serious infirmities in the prosecution case and despite there being contradiction in the evidences adduced by the prosecution which are fatal in nature have been brushed aside and has wrongly convicted the present applicant.

(c) That the applicant has completed more than 14 years of incarceration period and despite the matter being fixed, the same has not been heard on merits and has thus, argued to allow the present application.

3. On the other hand, Mr.L.B.Dabhi, 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 14 years 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. It is submitted that role attributed to the applicant of murdering from point blank range is proved beyond reasonable doubt, no error whatsoever has been committed by learned trial Court. Under the circumstances, it is argued to reject the present application.

4. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused.

5. 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?

6. 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 considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-40, paras 4-6)

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reason