The court ruled that the injuries inflicted were not intended to cause death, indicating culpable homicide rather than murder, thus justifying the suspension of sentence.

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. Hridya Buch, learned counsel for the applicant and Mr. Krutik Parikh, learned APP for the respondent-State.

3. By way of this application under Section 430(1) of the Bharatiya Nagarik Surakhsa Sanhita, 2023, applicant Dayaram Vaghjibhai, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302 and 323 of the IPC.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 30.11.2016 and order of sentence passed in Sessions Case No.81 of 2009, whereby, the applicant herein was convicted and sentenced as under:

(i) Section 302 of IPC: R.I. for Life and fine of Rs.10,000/- and in default thereof, further imprisonment for 6 months;

(i) Section 323 of IPC: S.I. for 6 months and fine of Rs.500/- and in default thereof, further imprisonment for 15 days;

5. Facts and circumstances giving rise to file present application is that, on 15.06.2008, the applicant-accused Dayaram Vaghjibhai inflicted blow on the head of the deceased Pamiben which resulted into death of the deceased. The motive behind the incident was the quantity of the sand lying near the place of incident. According to case of the accused, they had purchased by paying money, whereas the complainant party claiming their right over the sand. The accused had also sustained injuries in the same incident. The complaint was also filed by him against the complainant party about beating by them. Pursuant to the FIR, the applicant and his wife were chargesheeted. The sessions court after appreciation of the evidence, found the accused applicant guilty for the murder of Pamiben and acquitted the wife Kanchanben.

6. Mr. Hriday Buch, learned counsel appearing on behalf of the applicant while praying for suspension of sentence contended that, the injuries were not intended to cause death as as per the medical evidence, there was a single blow and no fractures were found during the course of postmortem. That, the court below failed to appreciate that the act was culpable homicide and not amounting to murder punishable under Section 304 of the IPC. The incarceration period is almost 8 years and in view of possible delay in adjudication of the appeal, the case may be considered.

7. On the other hand, Mr. Krutik Parikh, learned Additional Public Prosecutor has opposed the contention and submitted that, the issue whether death was murder or culpable homicide amounting to murder would be subject matter of final hearing of appeal and therefore, no case is made out and application may not be entertained.

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 we have taken notice of the fact that, the parties belong to one family and in a petty issue of taking away the sand, the dispute arose between them. It is evident that, there was single blow on the head. In such circumstances, having regard to the peculiar facts of the present case and the period of incarceration, 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 30.11.2016 by the learned 3^rd Additional District Judge, Ahmedabad (Rural) in Sessions Case No.81 of 2009 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