Suspension of sentence can only be granted in exceptional cases for serious offences, requiring substantial justification, as established by the appellate court.

JUDGMENT :

P.M. RAVAL, J.

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

2. The present application is preferred by the applicants under Section 430 of the Bhartiya Nagarik Suraksha Sanhita for suspension of sentence awarded to them vide judgment and order of conviction and sentence dated 3.4.2023 by the learned Additional Sessions Judge, Ankleshwar in Sessions Case No.18 of 2017.

3. Learned advocate Mr. A.M. Mehta appearing for the applicants, at the outset, does not press the application for accused No.1 – Jagabhai Chaturbhai Vasava with a liberty to prefer an application for suspension of sentence after a period of one year. The application qua accused No.1 – Jagabhai Chaturbhai Vasava stands disposed of accordingly with a liberty to prefer an application for suspension of sentence after a period of one year.

4. Learned advocate Mr. A.M. Mehta has mainly contended as follows :

(a) That entire case is based on theory of last seen together and despite the place of incident located in the busy area, except interested witnesses, no other witness has supported the case of the prosecution.

(b) That Mogalbhai Vasava – PW 12 who is alleged to have seen accused No.1 along with the deceased and has also seen accused Nos.1 and 2 to have dragged dead body out of their house cannot be believed since previous enmity has come on record and except this witness, there are no other witnesses to support the case of the prosecution. Under the circumstances, Mr.Mehta has argued to allow the present application qua applicant No.2 – Ajaybhai Jagabhai Vasava.

5. On the other hand, Mr.L.B.Dabhi, 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 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 Court has correctly appreciated the evidence of PW 2 - complainant – Tiniben Vasava at Exh.26, PW 5 – Manojbhai Vasava at Exh.30 and lastly PW 12 – Mogalbhai Vasava at Exh.38 and has also considered the statement of PW 12 – Mogalbhai Vasava under the provisions of section 164 of CrPC recorded by learned Magistrate and has proved complicity of the accused persons and therefore, learned trial Court has correctly invoked the provisions of section 114 of IPC and convicted the applicant herein. Under the circumstances, learned APP has 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 No.2 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 examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order and the evidences produced before the learned trial court. 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