Suspension of sentence granted due to contradictions in witness statements and lack of evidence linking the applicant to the crime.

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. Vishal Mehta, learned counsel for the applicant and Mr. Meet Thakkar, learned APP for the respondent-State.

3. By way of this application under Section 430(1) of the Bharatiya Nagarik Surakhsa Sanhita, 2023, applicant Ambabhai @ Nanjibhai Kavabhai Dungasiya, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302 read with Section 114 of the IPC.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 24.01.2025 and order of sentence passed in Sessions Case No.48 of 2019, whereby, the applicant herein was convicted and sentenced as under:

(i) Section 302 r/w. Section 114 of IPC: R.I. for Life and fine of Rs.55,000/- and in default thereof, further imprisonment for 1 year;

5. Facts and circumstances giving rise to file present application is that, the applicant-accused along with accused Homirabhai Dungasiya have been convicted and sentenced for the murder of Hurmabhai. It is alleged that, on 03.04.2019, the accused in connivance with each other, inflicted fatal blows by sword and axe on the body of the deceased resulting into his death. Pursuant to the FIR, the accused were arrested. At the end of investigation, both had been chargesheeted. Before the trial court, 27 witnesses were examined and 32 documents exhibited. The court below after appreciation of the evidence, found guilty the accused for the offence of murder and sentenced to undergo life imprisonment.

6. Mr. Vishal Mehta, learned counsel appearing on behalf of the applicant while praying for suspension of sentence contended that, the applicant-accused Ambabhai was not named in the FIR and as such, he did not have inflicted any blow to the deceased. So far as witness Lalabhai is concerned, his evidence is full of contradictions and omissions which create a doubt about the presence of the accused at the place. In such circumstances, the findings of conviction are perverse and there are all chances of appeal being allowed and in that view of the matter, the case of the applicant may be considered.

7. On the other hand, Mr. Meet Thakkar, learned Additional Public Prosecutor has opposed the contention and submitted that, there is no ground exists for exercising discretion and when the findings are based on the evidence, the court may not exercise its discretion.

8. Issue arises for our consideration as to whether the applicant has made out a case for suspension of sentence?

9. We have considered the submissions of the rival parties and the case records as well as findings of trial court. We take notice of the fact that, the accused was not named in the FIR. The evidence of complainant Satrabhai and eye witness Lalabhai are contradictory to each other so far as complicity of the accused is concerned. Admittedly, no T.I. Parade for identification of accused was held. During the course of investigation, nothing found from the applicant-accused. In such circumstances, prima-facie, we are of the view that, there are material omissions and contradictions with regard to involvement of the applicant-accused. In such circumstances, we are persuaded to exercise our judicial discretion in favour of the applicant.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 24.01.2025 by the learned 3^rd Additional Sessions Judge, Sabarkantha - Idar in Sessions Case No.48 of 2019 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 tak