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2025 DIGILAW 635 (GUJ)

Nareshbhai Rameshbhai Palas v. State Of Gujarat

2025-07-03

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 – Nareshbhai Rameshbhai Palas - original accused under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 10.3.2025 by the learned 3 rd Additional Sessions Judge, Panchmahal at Halol in Sessions Case No.94 of 2022 whereby the applicant – original accused came to be convicted and ordered to undergo life imprisonment for the offence under Section 395 of INDIAN PENAL CODE and also to pay a fine of Rs.25000/-. 3. Learned advocate Mr.Pratik Barot appearing for the applicant has mainly contended as follows : (a) That the applicant is in custody from his actual date of arrest i.e. 3.7.2022. (b) That the judgment and order of conviction passed by the learned trial Court is prima facie erroneous which is apparent from the bare reading of the judgment itself. (c) That the prosecution witness Nos.4 to 7 who are crucial witnesses have not identified the applicant coupled with the fact that no identification parade has also been carried out for the present applicant. (d) That the entire conviction is based on information being given by the Investigating Officer with regard to involvement of the present applicant in the alleged crime. That no identification parade has been carried out for the present applicant coupled with the fact that sketch of the present applicant was also not prepared because his face was covered with the piece of cloth and merely identifying the accused for the first time in the trial Court is of no help to the prosecution. (e) That there is no recovery or discovery of the articles and has thus argued to allow the present application. 4. On the other hand, Mr.L.B.Dabhi, 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. (e) That there is no recovery or discovery of the articles and has thus argued to allow the present application. 4. On the other hand, Mr.L.B.Dabhi, 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 argued that learned trial Court has recorded the reasons on page 24 onwards till page 30 discussing in detail in tabular form with regard to the contentions raised by the accused before the learned trial Court and appreciation of evidence and hence, well reasoned order is passed and therefore, 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 under Section 430 of the Bhartiya Suraksha Sanhita 2023 or not? 7. 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 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) 1. "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) 1. "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. 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. 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. On bare perusal of the tabular form at page 24 of the impugned judgment itself, it is clear that the present applicant accused has not been identified, however, rest of the accused have been identified. Despite this fact, the learned trial Court has believed the presence of the applicant accused in the alleged crime. Without discussing the judgment and order of conviction in detail which would prejudice the case of either side, prima facie case has been made out by the applicant for suspension of sentence and releasing him on bail coupled with the fact that there are no chances of appeal being finally heard in near future. 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 10.03.2025 by the learned 3 rd Additional Sessions Judge, Panchmahal at Halol in Sessions Case No.94 of 2022 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 mark his presence before the concerned Police Station, where the FIR came to be lodged, twice in a year starting from first week of December 2025 and June first week till the year 2028; (b) he shall not take undue advantage of the liberty or misuse the liberty; (c) he shall not leave India without the prior permission of the concerned Sessions Court; (d) 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. (e) 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.