Hemant M. Prachchhak, J.
1. Present application is filed for suspension of sentence imposed by learned City Civil and Sessions Judge, Court No. 9, Special Atrocity Court, Ahmedabad vide order dated 17.8.2022 passed in Special Atrocity Case No. 2 of 2011, whereby the learned City Civil and Sessions Judge has sentenced him to undergo simple imprisonment of seven years for the offence punishable under Section 307 r/w with Section 114 of the Indian Penal Code and fine of Rs. 15,000/-and in default of payment of fine, to undergo simple imprisonment for six months and to undergo simple imprisonment of one year for the offence punishable under Section 324 r/w Section 114 of Indian Penal Code.
2. Heard Mr. I.H. Syed, learned Senior Counsel assisted by Ms. Dipsikha A. Mishra, learned Counsel for the applicant and Mr. H.K. Patel, learned APP for the respondent-State.
3. Mr. I.H. Syed, learned Senior Counsel appearing for the applicant has submitted that the accused No. 7-Ranjitsingh Narayansingh Chauhan, who inflicted knife blow on the chest of the injured was granted bail by the Coordinate Bench of this Court. Learned Senior Counsel submitted that the applicant would be entitled to benefit of parity as co-accused has been granted bail by the Coordinate Bench of this Court vide order dated 19.9.2022. Learned Senior Counsel has relied upon the decision of the co-ordinate bench of this Court dated 19.9.2022 in case of Ranjitsingh Narayansingh Chauhan vs State of Gujarat passed in Criminal Misc. Application (For Suspension of Sentence) No. 1 of 2022 in Criminal Appeal No. 1754 of 2022 and more particularly paragraph No. 5 of the said decision. In view of the said facts, learned Senior Counsel for the applicant has urged that present applicant may also be enlarged on bail, on the ground of parity and the penalty imposed by the learned Trial Court may be suspended.
4. Mr. Patel, learned APP has supported the judgment of the Trial Court and submitted that the Trial Court, after taking into account all the relevant aspects and considering the material and evidence placed on record, has passed the order of conviction. Learned APP further submitted that in view of the said facts, present application for suspension of sentence may not be entertained and the same may be dismissed.
5. It is appropriate to take into account the fact that there is distinction between the pre-conviction bail and post conviction suspension of sentence. Therefore, it is relevant herein to refer the relevant sections of the Indian Penal Code, which read thus:-
"Section 307. Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.-[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.
CLASSIFICATION OF OFFENCE
Para I: Punishment-Imprisonment for 10 years and fine-Cognizable-Non-bailable-Triable by Court of Session-Non-compoundable.
Para II: Punishment-Imprisonment for Life, or imprisonment for 10 years and fine-Cognizable-Non-bailable-Triable by Court of Session-Non-compoundable.
Para III: Death, or imprisonment for 10 years and fine-Cognizable-Non-bailable-Triable by Court of Session-Non-compoundable.
Section 324. Voluntarily causing hurt by dangerous weapons or means.-Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 7 years, and fine-Cognizable-Bailable-Triable by any Magistrate-Compoundable by the person to who, hurt is caused with the permission of the court.
Section 114. Abettor present when offence is committed.-Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
CLASSIFICATION OF OFFENCE
Punishment-Same as for offence committed-According as offence abetted is cognizable or non-cognizable-According as offence abetted is bailable or non-bailable-Triable by court by which offence abetted is triable-Non-compoundable.
6. It appears from the record that the allegation against present applicant is that he is the first assaulter, who inflicted knife blow on the abdominal part of the injured and caused serious injury and his role is very much clear. Further, the injured in his deposition at Exh 36, P.W. 6 has categorically mentioned that the present applicant-original accused No. 1, has inflicted knife blow on the abdominal of the injured and the said fact is supported by medical evidence at Exh.39. P.W.7 Dr. Miten Ramesh Chandra Mevada has categorically stated on oath before the Court that the injured had received blow of 2 c.m. on the left side of abdominal, which is deep in nature, and it is very serious in nature. The said doctor was heard at the time of imposing of conviction and sentence and after considering the explanation rendered by accused No. 1, the Trial Court has held guilty of the accused and convicted the sentence for seven years.
7. It also appears from the jail record that before conviction during the course of Trial and after conviction, the applicant original accused had remained in jail for a period of 11 months and 18 days.
8. At this stage, it is profitable to refer the ratio laid down by the Hon'ble Apex Court in the case of Kishorilal vs. Rupa and others reported in (2004) 7 SCC 638, [LQ/SC/2004/1084] wherein the Court discussed the factors required to be considered by the Court while granting benefit under Section 389 in the cases involving serious offence like murder etc. The relevant observations of the Hon'ble Apex Court read as under:-
"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. 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.
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.
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 looses 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."
9. It is also relevant to take into account the observations made by Hon'ble Apex Court in case of Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) reported in (2008) 5 SCC 230 [LQ/SC/2008/1192] . In the said decision Hon'ble Apex Court has observed as under:-
"HEAD NOTE:-
Criminal Procedure Code, 1973 - S. 389(1) - Suspension of sentence and release on bail - Application for - Appellate court (Supreme Court in the present case) held, is empowered to suspend sentence - Such action can however be taken after affording opportunity to Public Prosecutor if offence is punishable with death or life imprisonment or ten years' or more imprisonment, and after recording reasons - Mere admission of appeal by the Supreme Court is not in itself a ground for suspension of sentence - Person acquitted by trial court but convicted by High Court cannot be considered an innocent person, deserving suspension of sentence - It is also not sufficient that the applicant was on bail during trial and he did not misuse this liberty - Real consideration is whether reasons exist to suspend execution of sentence and grant of bail - On facts held, applicant's appeal was on board and was therefore likely to be heard within measurable distance of time' - Keeping in view that the applicant was convicted by High Court under S. 302 IPC, no case made out for exercise of power under S. 389 CrPC - Application therefore rejected - Penal Code, 1860 - S. 302
19. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.
30. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, Vijay Kumar v. Narendra & Ors., Ramji Prasad v. Rattan Kumar Jaiswal, State of Haryana v. Hasmat, Kishori Lal v. Rupa and State of Maharashtra v. Madhukar Wamanrao Smarth, In the above cases, it has been observed that once a person has been convicted, normally, an appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar 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 all 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, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.
31. In Hasmat, this Court stated; (SCC p.176, para 6)
"6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant 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. 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".
(emphasis supplied)
32. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.
33. xxxxxxxx. Hence, within `measurable distance of time' the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant-appellant for suspension of sentence and grant of bail. The application deserves to be dismissed and is accordingly dismissed.
10. Therefore, considering the above referred observations made by the Hon'ble Apex Court and the same is referred to and relied by this Court time and again and also considering the decision of this Court in case of Abbas @ Abha Bhudha Sathi vs. State of Gujarat dated 10.12.2020 passed in Criminal Misc. Application (for Suspension of Sentence) No. 1 of 2020 in Criminal Appeal No. 460 of 2020, present application for suspension of sentence does not deserve to be entertained and the same is required to be dismissed.
11. This Court has also taken into account the fact that the injury received by the injured is serious in nature and fortunately he is survived otherwise, the injury resulted into the death of the injured. Considering the medical evidence and the nature of the injury, this Court is of the opinion that the discretion could not be warranted in favour of the present applicant and no case is made out for suspension of sentence.
12. Considering the above aspects and perusing the depositions, documents, judgment and order of the learned Sessions Judge, I am persuaded to come to the conclusion that there is no any patent irregularity, which would render the conviction prima facie erroneous.
13. Under such circumstances, I am of the opinion that the present application is meritless and thus, it is dismissed. Rule is discharged.
