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2025 DIGILAW 511 (GUJ)

Ajaybhai Prakashbhai Patel v. State of Gujarat

2025-06-20

ILESH J.VORA

body2025
JUDGMENT : P.M. RAVAL, J. 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 Bhartiya Nagarik Nayay Sanhita 2023, the applicant – original accused No.1 seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 25.05.2017 by the learned Sessions Judge, Valsad in Sessions Case No.36 of 2014. 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, 305 and 114 of IPC Life 5000/- Imprisonment RI for 1 years 504 IPC RI for one 2000/- year RI for three months 4. Learned Advocate Mr. B. K. Dave has argued that there was no strong motive or intention to kill anyone as per the case of the prosecution. It was a sudden quarrel which suggested that the present case has not predetermination incident, and thus, the four corners of Section 302 would not be applicable. It is argued that the present case was an incident of grave provocation and an intention of allege the offence, and the allege incident occurred during the match of volleyball; that the accused and the deceased had some quarrel in sudden provocation. The present incident has taken place and thus, it suggested that there was no pre-motive or intention to commit crime. It is submitted that there is variation of determination with regard to the allege incident from the prosecution witnesses, which create serious doubt with regard to the genesis of the incident, and the prosecution has failed to prove his case beyond reasonable doubt; that there is a contradictory evidence between the oral and the medical evidence, discovery of weapon, type of incident, and that the evidence is also not credible and hence, inspired confidence. However, the Trial Court have committed error in convicting the present applicant; that Pankajbhai Shivabhai, who is crucial witness of the cause of incident, has admitted that he had left a place on incident before the incident took place. This creates serious doubt. Hence, Trial Court has committed error in convicting the applicant and has prayed to suspend the sentence till the final disposal and pendency of the appeal. 5. Ld. Additional Public Prosecutor Ms. This creates serious doubt. Hence, Trial Court has committed error in convicting the applicant and has prayed to suspend the sentence till the final disposal and pendency of the appeal. 5. Ld. Additional Public Prosecutor Ms. Chetna M Shah, has argued that Trial Court has given cogent and convincing reason for applying the oral as well as documentary evidence and has convicted the present applicant for committing murder; and the ground raised by the applicant would require re-appreciation of evidence which cannot be done at this stage of suspension of sentence, and no prima facie case has been made out for suspension of sentence in grievance offence like murder. Hence, argued to reject the present application. It is further argued that minor infirmity whatsoever, whether destroy the case of prosecution or not, cannot be seen at this stage. And since conviction is in Section 302 for life imprisonment, no indulgence is required at the hands of this Court and argued to reject the present application. 6. 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 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. 639-40, 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. 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. 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 , (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 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 IPC, 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. 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. 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." 7. On perusal of the judgment as well as the charge framed against the Accused, it transpires that initially on 05.01.2016, while procession of victory in a cricket match was taken out, and during that procession of victory all were dancing, the hand of Rajesh inadvertently hit Ajaybhai. Because of that, there is quarrel between the accused and the deceased, and because of intervention of other people present there, they arrived at compromise. However, in the evening again, when the accused and the deceased and other persons were playing Vollyball, there was again a scufÒe between the deceased and the accused person, and thus, the present incident of murder took place. 8. This Court is in agreement with the argument of Ld. Advocate for the Applicant that there are fair chances considering the manner in which the incident took place that the same may fall under Section 304 of IPC. Without discussing the merits of the matter in detail which would prejudice to the case of either side and having considered the peculiar facts and circumstances of the present case, the applicant convict stands on fair chance of acquittal and should not be kept behind the bars till conclusion of the appeal since there is no likelihood of the present appeal being taken up for final hearing in near future. 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. 9. Accordingly, present application is allowed. 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. 9. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 25.05.2017 by the learned Sessions Judge, Valsad in Sessions Case No.36 of 2014 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. 10. Rule made absolute to the aforesaid extent. Direct service is permitted.