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2025 DIGILAW 1124 (GUJ)

Parin Jagdishbhai Thakkar v. State of Gujarat

2025-09-23

ILESH J.VORA, P.M.RAVAL

body2025
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. 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 and thus merely picking up the six calls from 24.7.2017 and 25.7.2017, it cannot be said that the applicant was also involved in the alleged crime. (h) It is argued that the alleged vehicle which is seen in the CCTV video footage and as recorded by the learned Sessions Judge at page 633 clearly states that the persons sitting in the car were not visible and enhancement was not carried out thus the presence of the present applicant in the alleged car in which the deceased was kidnapped is also not proved. (i) It is further argued that no finger prints of the present applicant are found from the car and thus there is no FSL report implicating the present applicant in the crime in question. (i) It is further argued that no finger prints of the present applicant are found from the car and thus there is no FSL report implicating the present applicant in the crime in question. (j) Lastly, it is argued that the recovery of the ring of the deceased from the present applicant is also not proved in accordance with law since the panchas have also turned hostile and lastly that despite the applicant having examined defence witness, the learned trial Judge has recorded a finding on page 723 of the judgment that the same is not supported by any certificate under Section 65(B) of the Indian Evidence Act, and cannot be taken into consideration. However, it is argued that the witness who has recorded the clip of the present applicant while surrendering before the Police Station and the phone from which the said video was recorded itself was produced before the learned trial Court as primary evidence the necessity of issuance of certificate is uncalled for more particularly it was the duty of the prosecution if at all to sent the said mobile to the FSL. Thus, it is argued that when the defence witness has recorded the entire episode of applicant having surrendered himself before the police station right from the exit from his residence to the police station wherein he has not worn any ring in his finger, the recovery of ring from the present applicant is implanted and as thus argued to allow the present application. 4. Per contra, learned advocate Mr.Pranav Dhagat has vehemently opposed the present application mainly on the grounds that the arguments of the learned advocate for the appellant would amount to reappreciation of evidence which is not permissible at the stage of suspension of sentence more particularly when the learned Trial Court has given detailed reasons after appreciation of both oral as well as documentary evidences and when the learned advocate for the applicant is enable to point out prima facie error apparent on the face of the record. Under the circumstances, it is argued to reject the present application, more particularly, when the prosecution has been able to prove charges against the accused persons based on circumstantial evidence by completing chain and having proved that the deceased was kidnapped for ransom and was murdered, it is argued to reject the present application. 5. Under the circumstances, it is argued to reject the present application, more particularly, when the prosecution has been able to prove charges against the accused persons based on circumstantial evidence by completing chain and having proved that the deceased was kidnapped for ransom and was murdered, it is argued to reject the present application. 5. Heard learned advocates for the respective parties and also gone through the charges levelled against the present applicant accused. 6. The issue arises as to whether the applicant has made out a case for suspension of sentence and enlarging him on bail or not? 7. We have carefully examined the case records and considered the submissions made by learned advocates for the respective parties. We have also perused the impugned judgement and order and the evidences produced before the learned trial court. In a serious offence attracting the punishment of life imprisonment, the Appellate Court has to assess the record and 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 reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366 ], it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar [Vijay Kumar v. Narendra, (2002) 9 SCC 364], it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 3021PC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 ] and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 ). 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach." 8. Keeping in mind the aforesaid principles, this Court has gone through the impugned judgment and order. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach." 8. Keeping in mind the aforesaid principles, this Court has gone through the impugned judgment and order. Considering the role attributed to the present applicant, the manner in which the entire incident has taken place, the defence witness examined by the applicant in his defence more particularly prima facie, it appears that there are missing links to prove the close complicity of the present applicant and also considering the fact that the applicant has already undergone 7 years, 2 months and 16 days incarceration as on 22.09.2025 and we see no compelling circumstances for not granting discretionary relief. Under the circumstances, without discussing the merits and demerits of the case which will prejudice the case of the either parties, in the facts of the present case, more particularly, when we see no fair chances of appeal being been taken up in near future, it is a fit case to exercise discretionary powers in favour of the applicant. 9. Under the circumstances, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicant and to enlarge him on bail pending Criminal Appeal. It is required to be noted that the observations made hereinabove are tentative in nature and made only for the purpose of deciding the present application for suspension of sentence. 10. Accordingly, present application is allowed. It is required to be noted that the observations made hereinabove are tentative in nature and made only for the purpose of deciding the present application for suspension of sentence. 10. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 21.5.2012 by the learned 3 rd Additional Sessions Judge, Gandhinagar in Sessions Case No.19 of 2018 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court subject to conditions that : (a) he shall not take undue advantage of the liberty or misuse the liberty; (b) he shall not leave India without the prior permission of the concerned Sessions Court; (c) he shall furnish the present address of his residence to the court concerned at the time of execution of the bond and shall not change the residence without the prior permission of the concerned Sessions Court. (d) he shall proceed with the Criminal Appeal as and when it may be listed. 11. Rule made absolute to the aforesaid extent. Direct service is permitted.