JUDGMENT :

1. The accused has preferred this appeal under Section 374(2) of the Criminal Procedure Code, 1973 against the judgment and order of conviction dated 27.02.2007 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Patan (hereinafter be referred to as “the trial Court”) in Sessions Case No. 16 of 2005, whereby present appellant (accused) has been convicted for the offence punishable under Section 307 of the Indian Penal Code and directed him to undergo sentence of rigorous imprisonment of four years for the said offence with fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for one month.

2. The case of the prosecution briefly is that on 27.07.2004 at about 8.00 a.m., son of complainant Prakashji left for Sidhdhpur, at that time, the two persons i.e. accused ran behind Prakashji and inflicted a blow of dharia on back side of the head of Prakashji, by the appellant and Prakashji fell down and, thereafter, the accused persons ran away. That Prakashji became unconscious and he was taken to the Civil Hospital, Sidhdhpur and, thereafter, referred to the Civil Hospital, Mehsana where the First Information Report being C.R.No.I – 115 of 2004 came to be lodged with Sidhdhpur Police Station for the offence punishable under Sections 307 and 114 of the Indian Penal Code against the accused persons.

3. Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant – accused has preferred the present appeal along with Criminal Misc. Application No.8588 of 2007 for suspension of sentence. The appeal came to be admitted by the Coordinate Bench of this Court vide order dated 12.03.2007. The Coordinate Bench of this Court allowed Criminal Misc. Application No.8588 of 2007 vide order dated 13.08.2007 and released the appellant on bail. The order dated 13.08.2007 reads thus:-

“1. Rule. Ms Meeta Panchal waives service of notice of rule.

2. In the facts and circumstances of the case this application is taken up for final hearing today.

3. Heard learned advocate for the applicant and Ms. Raval for the State. It appears from the impugned judgment that the applicant convict is sentenced to undergo imprisonment for four years and to pay fine of Rs.1,000/- in default to undergo imprisonment for one month. The applicant convict is in jail since 27.2.07 thereby he has undergone imprisonment of about 5 ½ months. In view of the decision of Sureshkumar & Ors. Vs. State (NCT of Delhi) reported in 2001 (10) SCC page 338 and in the matter of Kiran Kumar Vs. State of M. P. reported in 2001 (9) SCC 211 as no exceptional circumstances are pointed out to refuse suspension of substantive sentence of imprisonment, the substantive sentence of imprisonment imposed by trial court is suspended till hearing and final disposal of this Appeal and the applicant is ordered to be released on bail on his executing a bond of Rs.5,000/- (Rupees five thousand only) with one surety of the like amount to the satisfaction of the lower court.

7. Rule is made absolute accordingly.

8. Direct service is permitted.”

4. Upon consideration of the evidence of the complainant and other witnesses, the trial Court convicted the appellant accused under Section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for four years along with fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for one month.

5. During pendency of the appeal, at the instance of the elder people of the village and the community leaders, the parties are said to have settled the matter whereby the complainant has shown his willingness that he has no objection if the impugned judgment and order of conviction passed by the trial Court is quashed and set aside and the Court can consider the period which the appellant has undergone during the pendency of the trial and, thereafter, till the date of admission of the appeal.

6. Learned advocate appearing for the appellant accused