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. Aamir Pathan, learned counsel for the applicant and Mr. Jay Mehta, learned APP for the respondent-State.

3. By way of this application under Section 389(1) of the Criminal Procedure Code, 1973, applicant Jay @ Jalo Harshadbhai Bhoi seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 r/w. Section 34 of the IPC.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 02.12.2022 and order of sentence passed in Sessions Case No.128 of 2021, whereby, the applicant herein was convicted and sentenced as under:

(i) Section 302 r/w. Section 34 of IPC: R.I. for Life and fine of Rs.5,000/-;

5. Facts and circumstances giving rise to file appeal as well as this application are that on the date of occurrence, deceased had indulged into gambling activity with the accused persons behind a Primary School at Village Bharda. The deceased asked for sum of Rs.100/- from the accused no.1 and the accused no.1 had given an assurance that he will