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2025 Supreme(Online)(Guj) 8738
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ILESH J. VORA, P. M. RAVAL, JJ
SHAMJIBHAI S/O. HIRABHAI RATNABHAI PARMAR – Appellant
Versus
STATE OF GUJARAT – Respondent
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 2 of 2025 | R/CRIMINAL APPEAL NO. 518 of 2016
For the Appellants/Petitioners: D R Brahmbhatt
For the Respondents: L B Dabhi
Suspension of sentence under Section 389 IPC requires careful assessment of the case and the reasons for acquittal prospects, especially in serious offences.
Headnote:(A) Indian Penal Code, 1860 - Section 302 - Suspension of sentence pending appeal - Applicant seeks suspension of life sentence after serving over ten years; the application granted based on assessment of the case's progress and fair chance of acquittal. (Paras 10, 11)
(B) Criminal Procedure Code, 1973 - Section 389 - Guidelines for suspension of execution of a sentence pending appeal; court must objectively assess the case without re-evaluating evidence. (Paras 30-33)
Facts of the case:
The applicant was convicted and sentenced for murder under Section 302 IPC. Co-accused released on bail; delay and procedural lapses questioned. (Paras 4, 5, 7)
Findings of Court:
The applicant demonstrated prima facie strong case for acquittal, and not being a flight risk, suspension of sentence justified. (Paras 10, 11)
Issues: The adequacy of grounds for suspending a severe sentence like life imprisonment and the implications of co-accused being released on bail. (Paras 6, 10)
Ratio Decidendi: The appellate court should not substitute its view unless convinced of an apparent error in the trial court's judgment. The factors surrounding the conviction, including prior bail conditions, must be cautiously weighed. (Paras 30-32)
Result: Application allowed; applicant’s sentence suspended pending appeal.
| Table of Content |
|---|
| 1. application for suspension based on appeal. (Para 2 , 3) |
| 2. arguments for and against suspension. (Para 4 , 5) |
| 3. court's assessment of evidence and case progress. (Para 6) |
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. Rule. Learned APP waives service of notice of Rule on behalf of respondent - State.
2. By way of this application under Section 430 of the BNSS 2023, the applicant – original accused No.1 seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 29.10.2015 by the Ld. 3rd Additional Sessions Judge, Nadiyad in Sessions Case No. 21 of 2015.
3. By the aforesaid judgment and order of conviction and sentence, the present applicant - convict has been held guilty for the commission of offences as stated hereinbelow :
Section
Imprisonment
Fine in Rs.
In default of payment of fine.
302 read with Section 149
Life Imprisonment
25,000
6 months
4. Learned Advocate Mr. D R Brahmbhatt would submit that despite the order of withdrawal dated 21.09.2019, almost six years have passed, however, the matter has not proceeded on merits and the accused is in jail for more than ten years and that except the present accused all the co- accused have been enlarged on bail and thus, argued to suspend the sentence and enlarge the Applicant on bail. That there is delay of ten days in lodging FIR and no explanation is coming forthwith. That, there is cross complaint filed by the present Appellant and other co- accused which was registered as CR No. 19/2014 before the Kheda Town Police station and was Number as Sessions Case No. 20/2015. Thus, there was no intention or pre- meditation by the Appellant to kill the deceased. That the name of the Appellant was not disclosed at the first instance before the Doctor. However, after belated stage after 10 days, the Complaint came to be registered naming the present Appellant. Thus, it is argued that the Applicant had got prima facie strong case of acquittal and thus, argued to suspend the sentence and enlarge the Applicant on bail.
5. Ld. Additional Public Prosecutor Mr L B Dabhi, would submit that the main role attributed is to the present Applicant and that the Trial Court has given a well reasoned judgment after appreciating oral as well as documentary evidence in its true perspective and further argued that the re-appreciation of evidence is no permissible at the stage of Suspension of Sentence. Hence, has argued to reject the Application more particularly when the Applicant is involved in the heinous crime attracting Section 302 which is punishable with life imprisonment.
6. Heard Ld. Advocate for the respective parties. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgment 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 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 ingr
