In criminal appeals involving serious offences, suspension of sentence requires a prima facie assessment of trial evidence without reappraisal, and must be justified by potential for acquittal.

ORDER :

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 applicant – original accused No.2 in Sessions Case No.19 of 2018, which is also connected with Sessions Case No.8 of 2018 arising out of FIR being CR No.I, 94 of 2017 registered before Adalaj Police Station. The present applicant has preferred the application under the provisions of Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking suspension of sentence against the judgment and order of conviction and sentence dated 21.05.2022 passed by learned 3^rd Additional Sessions Judge, Gandhinagar in Session Case No.19 of 2018, whereby the learned trial Judge convicted the present appellant and other co-accused for rigorous life imprisonment under Section 302 of the IPC read with Section 120(B) of the IPC and also fine of Rs.5,000/- and in default thereof 6 months S.I, 7 years R.I. under Section 364 read with Section 120(B) of the IPC and Rs.5,000/- fine and in default thereof 6 months imprisonment, 5 years R.I. under Section 365 read with Section 120(B) and Rs.5,000/- fine and in default thereof 6 months imprisonment, 3 years S.I under the provision of Section 302 read with Section 120(B) and Rs.5,000/- fine and in default thereof 6 months imprisonment and 6 months S.I under Section 403 read with Section 120(B) of the IPC and Rs.2,000/- fine and in default thereof 3 months imprisonment. The learned Sessions Judge further handed down 6 months rigorous imprisonment under Section 404 read with Section 120(B) of the IPC and Rs. 2,000/- fine and in default thereof 3 months imprisonment and lastly 2 years rigorous imprisonment under the provisions of Section 419 read with Section 120(B) of the IPC and Rs.2000/- fine and in default thereof 3 months imprisonment. All the sentences were ordered to run concurrently. It is against the aforestated judgment and order of conviction that the present applicant had preferred the appeal, as also preferred an application for suspension of sentence and enlarging him on bail.

3. Learned advocate Mr.Pratik Barot for the applicant would submit that :

(a) That the entire case is based on the circumstantial evidence, more particularly, on the theory of last seen together.

(b) Call details record (CDR) between deceased and the accused persons and CCTV footage.

(c) Vehicle utilized in committing the crime.

(d) Finger print and FSL report.

(e) Discovery panchnama as per Section 27 of the Indian Evidence Act, and motive.

(f) It is argued that none of the ingredients are sufficient to complete the chain so as to point out the finger of guilt towards the present applicant, more particularly, the deposition of the driver who had dropped the deceased who has been examined as PW.111 i.e. Pratapbhai vide Exh.488 and who is the driver of the deceased has not seen any of the accused or the car in which the deceased is alleged to have been kidnapped and murdered and thus the theory of last seen together is not proved in accordance with law.

(g) It is argued that going through the table with regard to the call details record which has been reproduced by the learned Sessions Judge on Pages 582 and 583 of the judgment, the only call details alleged to have been proved is between the co-accused Monik Patel and the present applicant calls on 24th and 25th of July 2017, however the learned trial Court has not taken into consideration that number of calls between these two persons were made prior to these dates as they were close friends a