The court emphasized that circumstantial evidence must unequivocally indicate guilt, and insufficient evidence warrants 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.Mahesh Poojara, learned advocate Mr.Krutik Parikh, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Shahid Mahamad S/o. Sabirmiya Hasammiya Malek, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 120B and 201 of the Indian Penal Code.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 23.10.2024 and order of sentence passed in Sessions Case No.26 of 2020, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that on 06.10.2017, deceased Indrajitsingh did not return from his service and after extensive search, his whereabouts was not found. The father Mafatsingh came to know that the dead body of the deceased lying in the complex near Tarapur. They found injuries on the neck and forehead on the body of the deceased and therefore, the FIR of murder of the deceased being lodged against the unknown person. During the course of investigation, it revealed that the deceased was having relations with one Minajbanu. The accused no.1 Moinkhan was also having relations with the said lady. In that view of the matter, the accused no.1 Moinkhan in connivance with the co-accused viz. Sahid Mohammad present applicant herein, Javedmiya Shaikh and one juvenile accused called the deceased under the guise of compromise and taken him to a secluded place and inflicted a multiple blows with knife and killed him. The fatal blow alleged to have been inflicted by the accused Moinkhan whereas the accused nos.2, 3 and juvenile accused have facilitated the principal accused in commission of the said offence of murder. After the murder, the mobiles phones, wallet and bag of the deceased had been thrown in the canal and the number plat of the bike was removed. So far as the role of applicant accused no.2 is concerned, he had accompanied to the principal accused and taken the deceased in a secluded place. The knife alleged used in the offence and other incriminating material found at the behest of accused no.1. The witness Ajitsingh identified the accused in a T.I. parade as he saw the deceased in the company of the accused. In such circumstances, the accused were arrested and finally, chargesheet came to be filed against them. The learned Sessions Judge while convicting the accused came to a conclusion that the prosecution able to prove the incriminating circumstances, from which an inference of guilt sought to be drawn are proved and the accused are the author of the crime and accordingly, they found guilty for the murder of the deceased.

6. Learned advocate Mr.Mahesh Poojara, appearing on behalf of the applicant while praying for suspension of sentence contended that, so far as applicant original accused no.2 is concerned, there is no incriminating material pointing towards his guilt. Except the bloodstain clothes, nothing being seized and recovered from the accused. The witness Ajitsingh prior to the T.I. parade was called at the police station and the accused were shown to him. There is no motive for the accused to join with the co-accused in the said conspiracy. In such circumstances, it is submitted that the incarceration period is 7 years and more and considering the fair chances of succeeding the appeal and possible delay in adjudication of the appeal, case may be considered.

7. On the other hand, Mr.Krutik Parikh, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the tri