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2025 DIGILAW 1202 (GUJ)

Hemraj Muljibhai Muchhadiya v. State of Gujarat

2025-10-07

ILESH J.VORA, P.M.RAVAL

body2025
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. 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 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. 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, (2002) 9 SCC 364 and 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 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 302 1PC, 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, (2005) 5 SCC 281 and Gomti v. Thakurdas, (2007) 11 SCC 160 . 33. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 and 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 and record of the case as well as the charges levelled against the present accused. It transpires that the applicant has undergone 11 years, 2 months and 27 days incarceration as on today. Despite the criminal appeal being admitted vide order dated 19.4.2016, the same could not be taken up for final hearing. Considered the nature of injuries which are 24 in number. However, out of total 5 accused, the present applicant is only convicted for offence under section 302 read with 149 of IPC for life imprisonment, whereas accused Nos. Despite the criminal appeal being admitted vide order dated 19.4.2016, the same could not be taken up for final hearing. Considered the nature of injuries which are 24 in number. However, out of total 5 accused, the present applicant is only convicted for offence under section 302 read with 149 of IPC for life imprisonment, whereas accused Nos. 2 to 5 have been convicted for the offence under section 307 read with section 149 of IPC for 4 years RI, for the offence under section 143 of IPC , 6 months RI, for the offence under sections 147 and 148 of IPC , 2 years RI. From perusal of the impugned judgment, more particularly, paragraph 12, learned Sessions Judge has recorded the finding with regard to the injured eye witness. Similarly, in paragraph 13, learned Sessions Judge has recorded the finding with regard to injured witness. From the reading of the judgment itself, role attributed to the accused persons is for inflicting injuries and as noted hereinabove, 24 injuries are found from the postmortem report. Except the applicant, all the four accused persons have been acquitted of the charges of section 302 read with section 149 of IPC , however, they were convicted for the offence under section 307 read with section 149 of IPC . Considering the incarceration period of the applicant coupled with the fact that there are no immediate chance of appeal being taken up for final hearing coupled with the fact that we do not see any exceptional circumstances for not granting bail to the applicant. Without entering into the merits and demerits of the case in detail at this stage which would prejudice the case of either side, this is a fit case to exercise the discretion 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 and shall not be considered as an expression of any final opinion as regards the guilt or innocence of the accused. 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 and shall not be considered as an expression of any final opinion as regards the guilt or innocence of the accused. 10. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 16.5.2015 by the learned Additional Sessions Judge, Court No.16, Ahmedabad in Sessions Case No.298 of 2013 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.