ABHILASHA KUMARI, J.

1. Rule. Mr. J.K Shah, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of the respondent - State of Gujarat.

2. This application under Section 389(1) of the Code of Criminal Procedure, 1973 (“the Code”), has been preferred by the applicant, who is the original accused No. 4, for the suspension of the sentence imposed upon him by the learned Sessions Judge, Anand, by the judgment and order dated 10.03.2016, passed in Sessions Case No. 71 of 2012, pending the decision of Criminal Appeal No. 835 of 2016, preferred by him along with three co-accused persons. By the above-mentioned judgment, the applicant has been convicted for the offences punishable under Section 302 read with Section 120-B of the Indian Penal Code, 1860, and sentenced to undergo life imprisonment.

3. Briefly stated, the case of the prosecution is that the accused persons, in collusion with each other hatched a conspiracy, as a result of which, on 06.05.2011, at 8:30 am, when the deceased Prakashchandra Ambalal Shah was going from his house towards Vasad Railway Station and climbing the path near the sewer, on the southern side of Platform No. 1, accused No. 1 inflicted a blow with an iron pipe on his leg. Accused No. 3 showed the iron pipe to accused No. 2 and also showed the deceased coming there. Accused No. 1 took accused Nos. 2 and 3 to the place of offence on the motorcycle belonging to the present applicant. In short, as per the case of the prosecution, the present applicant had hatched a conspiracy with the other accused, nursing a grudge in his mind, as the deceased had compelled his daughter to take a divorce from the applicant, who had earlier had a love-marriage with her. Nursing a grudge regarding this, the applicant had conspired to kill the deceased and to this end, had given money and his motorcycle to accused Nos. 1, 2 and 3, who inflicted blows with an iron pipe upon the deceased and escaped from the spot on the motorcycle of the present applicant. The deceased was taken to the hospital but died before he could reach there.

4. After the trial was over and the judgment of conviction pronounced, the applicant was arrested on 10.03.2016 It is stated in the application that the applicant is in custody for the last about one year.

5. Mr. S.V Raju, learned Senior Advocate appearing with Ms. Bhavini Jani, learned advocate, for the applicant, has submitted that the so-called incident is alleged to have taken place about five years ago. The applicant was on bail pending tial and has not misused his liberty in any manner, or tried to win over any witnesses. There are, therefore, no chances of his misusing liberty, if released on bail during the pendency of the criminal appeal.

6. It is further submitted that looking to the pendency of criminal appeals before this Court, there is hardly any likelihood that the criminal appeal filed by the present applicant would be heard finally in the near future. Considering the totality of the facts and circumstances of the case, the sentence imposed upon the applicant may be suspended pending the final hearing of the appeal.

7. It is next submitted that even on merits, the applicant has a strong case in appeal and is likely to be acquitted. There is no evidence on record regarding the conspiracy allegedly hatched by him. That being the case, to continue to keep the applicant in custody would cause tremendous prejudice to him as no case is made out against him.

8. It is submitted that the medical evidence does not support the prosecution theory that the case falls under the provisions of Section 302 of the IPC. As per the post-mortem report, the cause of death was kept reserved till the receipt of the histopathological report of the viscera of the deceased. After the histopathological report was received, the cause of death has been described as “cardiac arrest secondary to ischemic heart disease following fright of injury”. Thus, the injury allegedly caused by the