The court may suspend a sentence if the conviction appears to be against the evidence and established legal principles.

ORDER :

(ILESH J. VORA, J.)

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

2. We have heard Mr.Dineshkumar Prajapati, learned advocate and Mr.L.B. Dabhi, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Dahyaji Virchandji Thakore (Zeradiya), seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302 and 114 of the Indian Penal Code.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 06.01.2021 and order of sentence passed in Sessions Case No. 92 of 2018, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that on 09.08.2017, according to the case of the prosecution, the accused in furtherance of their common intention, caused fatal injuries to the deceased Bhudarji by using deadly weapon like pipe, sticks, etc. Pursuant to the FIR, registered with Tharad Police Station, the police arrested the accused including the present applicant i.e. accused no.4 and at the end of investigation, chargesheet came to be filed before the Court concerned. The accused were tried by the Sessions Court. At the end of trial, with the aid of Section 114 of the IPC, the accused have been convicted and sentenced for the murder of deceased Bhudarji.

6. Learned advocate Mr. Dineshkumar Prajapati, appearing on behalf of the applicant while praying for suspension of sentence contended that, the applicant accused no.4 Dahyaji did not have caused any injuries to the deceased and according to the prosecution case, he caused a simple injuries to the complainant for which, he has been acquitted by the Court concerned. In such circumstances, he would urge that when there is no possibility of appeal being taken up for hearing in immediate near future, the Court may exercise its discretion by passing order of suspension of sentence and grant of bail to the applicant.

7. On the other hand, Mr. L.B. Dabhi, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that presence of the accused at the scene of offence is established and therefore, the Court below has not committed any error while convicting the accused herein.

8. Issue arises 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. It is no doubt true that the accused applicant did not have caused any injuries to the deceased. So far as injuries caused to the complainant is concerned, he has been acquitted. Therefore, prima facie we are of the view that the findings of conviction qua the present applicant accused with the aid of Section 114 of IPC are against the evidence and settled principle of law. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 06.01.2021 by the learned Additional Sessions Judge, Banaskantha in Sessions Case No. 92 of 2018 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not change his address and in case of change in address, shall infor