By filing this application under section 389 of Criminal Procedure Code, 1973, the applicants have made a prayer to suspend the sentence of imprisonment imposed by the Trial Court during the pendency of Criminal Appeal.
I have heard learned advocate Mr. Nanavati for the applicants and learned APP Ms. Shah for respondent at length and in great detail.
Learned advocate Mr. Nanavati submitted that the alleged incident took place on 29/5/2008 and the FIR came to be lodged on 10/6/2008 and delay in filing the FIR has not been explained. He also submitted that applicant no. 1 is husband of deceased and he informed the parents of deceased about the incident and immediately they came to the place of incident. However, for long time no FIR with regard to incident was filed. He also submitted that the note exh 20 clearly indicates that the applicants were not responsible for the death. Therefore, the Trial Court committed error in convicting the applicants and hence there are good chances of success in the appeal. Therefore, the applicants are required to be enlarged on bail.
Learned APP objected to the suspension of sentence on the ground that the applicants are convicted in a serious offence and once conviction is recorded they could not be enlarged on bail.
It appears from the impugned judgment that the prosecution has not explained delay in lodging the FIR. It also appears that the note exh 20 does not implicate the applicants. The applicants are sentenced to undergo short sentence. They were on bail during the Trial and after conviction, their sentence has been suspended. It is not likely that the appeal would be heard within short time. Therefore, considering the nature of evidence against the applicants, substantive sentence of imprisonment imposed upon them is required to be suspended during pendency of appeal.
In view of above, this application is allowed. The substantive sentence of imprisonment imposed upon applicants by learned Additional Sessions Judge, Junagadh on 28/5/2012 in Sessions case no. 97/2008 is suspended during the pendency of hearing of Criminal Appeal no. 841/2012 and the applicants are ordered to be released on same bail with fresh bonds before the Trial Court. Rule made absolute. Direct service is permitted.
(BANKIM.N.MEHTA, J) *asma Top