The court upheld that minimal involvement in a crime justifies a liberal approach to suspending a sentence pending appeal under IPC provisions.

ORDER :

ILESH J. VORA, J.

1. After arguing sometime, learned advocate Mr.Yogendra Thakore, for the applicants does not press this application and seeks permission to file fresh application after period of 3 years qua applicant no. 1. Permission as sought for is granted. With aforesaid liberty, application stands disposed of as not pressed qua applicant no. 1. Notice discharged.

2. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

3. By way of this application under Section 430(1) of BNSS, 2023, the applicant No. 2 – Sipai Rahemankhan Sarvarkhan Pirumiya, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 304(1), 114 of the Indian Penal Code.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 28.05.2024 and order of sentence passed in Sessions Case No. 11 of 2022, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file appeal as well as this application are that on 06.03.2022, at about 8-00 PM, the accused Sipai Sahejadkhan and his father Sipai Rahemankhan came at the place of incident and raising earlier dispute, created rucks with the uncle of complainant Bhudarbhai Patel and at that time, the accused no.1 Sahejadkhan gave a knife blow on Bhudarbhai Patel. As a result of which, he succumbed to his injuries. The father of principal accused was also apprehended in the said incident, because as per prosecution case, he gave a knife to his son so as to kill the deceased. Pursuant to the FIR, the accused were apprehended and finally, chargesheet came to be filed for the offence of murder. The learned trial Court, after appreciation of evidence, held that, the accused are not guilty of offence of murder, but they are liable for the offence of culpable homicide not amounting to murder under Section 304, part-II of the IPC and accordingly, they have been directed to suffer 10 years rigorous imprisonment with fine.

6. Learned advocate Mr. Yogendra Thakore, appearing on behalf of the applicant No.2 while praying for suspension of sentence contended that, the accused Rahemankhan is the father of principal accused no. 1 and he has been convicted with the aid of section 114 of the IPC. There is no acceptable evidence to prove and establish that, the knife was given by the accused to his son. In such circumstances, he prays that the sentence is for a fixed period and in absence of any exceptional circumstances, case of the applicant may be considered.

7. On the other hand, Mr. Jay Mehta, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and therefore, they would urge that, considering the gravity of offence and societal interest, this is not a case to exercise discretion in favour of the applicant accused.

8. Having regard to the facts and circumstances of the case, the issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence?

9. We have carefully examined the case records and considered the submissions made at the bar. The applicant accused did not have participated in the offence. In such circumstances, except his presence at the place, no role is attributable to him. It is settled position of law that, when a convicted person is sentenced to a fixed period of sentence, the prayer of suspension of sentence can be considered liberally unless there are exceptional circumstances exist for refusal the prayer. In such circumstance, we are of the opinion that, without much discussion on merits of the case, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

10. Having considered the peculiar facts and circumstances of the present case and cons