The court emphasized the need to meticulously assess all relevant factors when considering an application for suspension of a sentence for serious offenses like murder.

JUDGMENT :

P.M. RAVAL, J.

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

2. The present application is preferred by the applicant-original accused No.1 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 16.5.2015 by the learned Additional Sessions Judge, Court No.16, Ahmedabad in Sessions Case No.298 of 2013.

3. Learned advocate Mr.Pratik Barot appearing for the applicant has mainly contended as follows :

(a) That the applicant has undergone incarceration of 11 years, 2 months and 27 days as on date.

(b) That learned trial Judge has not properly appreciated panchnama at Exh.12 as the contents of the said panchnama are not corroborating with the complaint of the complainant and it creates doubt.

(c) That the panch witnesses are the interested witnesses and hence their evidence ought to have been discarded by learned trial Court.

(d) That learned trial Court has committed grave error in convicting the present applicant accused under section 302 read with section 149 of IPC.

(e) That there are five accused in the present case and learned trial Court has convicted the applicant only for the offence under section 302 of IPC on surmises and conjectures and has argued to allow the present application.

4. On the other hand, Mr.Pranav Dhagat, 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 submitted that the impugned judgment and order of conviction passed by the learned trial Court is well reasoned order after appreciating both the oral as well as documentary evidences and hence, no interference is required. It is submitted that merely because the applicant has undergone more than 11 years of incarceration, the present application for suspension of sentence is not required to be entertained. Under the circumstances, learned APP has argued to reject the present application.

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

6. 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?

7. We have carefully considered the submissions made by the both the sides. We have also perused the impugned judgement and order. 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 profitable to refer to the decision in the case of Omprakash Sahni Vs. Jai Shankar Chaudhary and Another, (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, (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. 639-640, 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