IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 120 OF 2008 IN CRIMINAL APPEAL NO. 20 OF 2008 ASSIS CARDOZ CURRENTLY LODGED IN JUDICIAL CUSTODY AT AGUADA ... Applicant Versus THE STATE OF GOA THROUGH PORVORIM POLICE STATION BARDEZ ... Respondent Mr. Marvin D'Souza, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. Coram:- N. A. BRITTO, J. Date:- 9th June, 2008 P.C.:- Heard Mr. Marvin D'Souza, learned Counsel on behalf of the applicant/accused and Ms. Winnie Coutinho, learned Public Prosecutor on behalf of the Respondent. The appeal filed by the accused has been admitted by Order dated 28-5-2008. The accused has filed this application for suspension of sentence pending hearing and final disposal of the said appeal. The accused was charged under Section 302 I.P.C. for having caused the death of Vikram Phadte on 8-6-2005 with a knife on his chest region causing him grievous injuries which resulted into his death. The accused was arrested and during the course of the trial, was refused bail. The learned Sessions Judge by his Judgment dated 9-5-2008 has reduced the conviction of the accused from Section 302 I.P.C. to Section 304(I) I.P.C. The evidence produced in the course of the trial and as reflected in the impugned Judgment shows that it is the accused who abused the deceased Vikram Phadte and had uttered the words "tuca dakoita"(I will show you) and thereupon had stabbed the deceased Vikram Phadte with a knife causing a penetrating stab wound on the left upper chest between the second inter coastal space which penetrated the left lung and then the heart. This shows the force with which the injury was inflicted. The medical opinion was that it was sufficient in the ordinary course of nature to cause death, and, yet the learned Sessions Judge proceeded to scale down the conviction from Section 302 I.P.C. to Section 304(I) I.P.C. which view prima facie does not appear to be correct. Be that as it may, Mr. D'Souza, learned Counsel appearing on behalf of the accused submits that the accused is an old person, aged 58 years and since the trial is likely to take some time, the accused be admitted to bail. Learned Counsel has further submitted that the accused was in custody for almost three years during the pendency of the trial and has hopes of succeeding in the appeal filed before this Court and for that reason also the accused be admitted to bail. Mr. D'Souza, learned Counsel has placed reliance on the Judgments in the cases of Bhagwan Rama Shinde Gosai and others v. State of Gujarat(AIR 1999 SC 1859), Anurag Baitha v. State of Bihar(AIR 1987 Patna 274) and Surinder Singh v. State of Punjab(AIR 2005 SC 3669). In the last decision cited, the Apex Court noted that the direction given in (2000) 1 Chand LR(Civ & Cri) 74 were only in the nature of guidelines and did not lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. However, considering the facts that the accused was in custody for six years and four months and co-accused was already released on bail the Apex Court proceeded to suspend the sentence in that case. On the other hand, Ms. Winnie Coutinho, learned Public Prosecutor has submitted that only because the conviction has been reduced from Section 302 I.P.C. to Section 304(I) I.P.C. is no case for suspension of sentence. She has placed reliance on the case of Kishori Lal v. Rupa and others(2004 AIR SCW 7409) and on another unreported Judgment of this Court dated 14-3-2008 in Criminal Miscellaneous Application No. 54/2008 in the case of Mr. Lalmand Nabhik Chaudhary v. State wherein following the said Judgment of the said case in Kishori Lal v. Rupa and others the bail application of an accused who was convicted under Section 376 I.P.C. for R.I. for a period of ten years was rejected. Indeed, the Apex Court in Kishori Lal v. Rupa and others(supra) has ruled that the mere fact that during the trial, the accused were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The Apex Court has further stated that the effect of bail granted during the 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. As already stated, the accused was charged and tried for an offence under Section 302 I.P.C. and the accused was denied bail during the course of the trial. The contention of the learned Counsel on behalf of the accused is that the bail was denied to the accused at the stage of trial because then there was an apprehension that the accused might interfere with the prosecution witnesses. It may be so. However, the order denying bail to the accused during the course of the trial is not placed for the perusal of this Court. I have already stated that the conviction of the accused under Section 304(I) I.P.C. in the facts and circumstances of the case cannot be prima facie accepted. It may be that the State has chosen not to assail the said conviction but that is another matter. Even otherwise, the facts and circumstances of the case do not justify suspension of sentence during the pendency of the appeal. The apprehension that the trial is likely to take some time during which the accused would linger in jail, does not at all appear to be correct, at present. Considering the facts of the case, in my view, this is not a fit case for suspension of sentence during the pendency of the present appeal. Application is therefore hereby rejected. N. A. BRITTO, J. RD.