Research › Search › Judgment

Gujarat High Court · body

2025 DIGILAW 910 (GUJ)

Nareshbhai Devjibhai Gohil v. State Of Gujarat

2025-08-21

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 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 2.7.2018 by the learned 3 rd Additional District Judge, Bharuch in Sessions Case No.7 of 2015. 3. Learned advocate Ms.Mayuri P.Chauhan appearing for the applicant has mainly contended as follows: (a) That the applicant has undergone 9 years and more in custody and it is not likely that the main appeal would be heard in near future and the main accused Dilipkumar has been enlarged on bail by the coordinate bench of this Court vide order dated 20.2.2023 and has prayed to enlarge the applicant on bail. (b) That the present applicant is not named in the FIR nor has the applicant being identified and merely on suspicion, the applicant has been arrested and convicted in the crime. (c) That when the main accused had inflicted injury due to which the deceased succumbed and when no role whatsoever of injury has been attributed to the applicant, the application is required to be allowed. 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 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 the applicant is a co- conspirator and learned trial Court having given cogent and convincing reasons for convicting the applicant and that reappreciation of the evidence is not permissible while deciding the application for suspension of sentence, more particularly, when the applicant is found to have committed murder. 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. 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 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, 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. 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 [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 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 [Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 ] and Gomti v. Thakurdas [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 [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 which runs into 47 pages. Learned trial Judge on page 34 has recorded with regard to test identification parade wherein the complainant has identified accused No.3. However, there are no findings with regard to identification of the present applicant. On page 35 also, it is recorded that the complainant despite knowing accused No.1 in prior of time of the alleged incident, she has not seen present applicant on the day when the alleged crime was committed. However, there are no findings with regard to identification of the present applicant. On page 35 also, it is recorded that the complainant despite knowing accused No.1 in prior of time of the alleged incident, she has not seen present applicant on the day when the alleged crime was committed. However, on page 37 relying upon the judgment in the case of Shafi Mohammad Vs State of Himachal Pradesh, reported in 2018 Law Suit (SC) 58 has concluded that requirement of certificate under section 65-B of EVIDENCE ACT is not always mandatory despite of the fact that the defence counsel having referred to the judgment in the case of Anvar P.V. Vs P.K.Bashir and others , reported in (2014) 10 SCC 473 has convicted the present applicant on the basis of compact disc recorded from camera wherein the present applicant seen going along with accused No.3. However, at this stage, reference is required to be made to the decision in the case of Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal , reported in AIR 2020 SC 4908 wherein the Honourable Apex Court has overruled the judgment in the case of Shafi Mohammad (supra) and has clarified the decision in the case of Anvar P.V. (supra). Thus, we are of the considered opinion that strong prima facie case of suspension of sentence is made out, more particularly, considering the role of the applicant and also considering the fact that the applicant has undergone 9 yeares, 5 months and 7 days as on today and there is no likelihood that the present appeal will be taken up for hearing in near future. Without entering into the merits of the impugned judgment 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. 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 2.7.2018 by the learned 3 rd Additional District Judge, Bharuch in Sessions Case No.7 of 2015 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.