The court may suspend a sentence during the appeal process if the applicant has served a significant portion of the sentence and no exceptional circumstances exist to deny such suspension.

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. By way of this application under Section 430(1) of BNSS, 2023, the applicant Thakor Lalaji Udaji, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 323, 304 Part-I, 114 of the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 08.07.2022 and order of sentence passed in Sessions Case No. 74 of 2014, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file appeal as well as this application are that the deceased and his brother were given a farm for agricultural purpose on rent. There was a dispute of rent of Rs.10,000/-. In such circumstances, the accused Arvindji Udaji and applicant accused Lalaji, assaulted the deceased Vijayji by knife. The injury caused was on the leg of the deceased. The deceased died due to said injury. Pursuant to the FIR, the applicant and Arvindji were arrested. The chargesheet came to be filed against them. Learned trial Court after appreciation of the evidence, convicted and sentenced the applicant Lalaji under Section 304 Part(1) of the IPC and directed to undergo 12 years imprisonment.

5. Learned advocate Mr. B. B. Sarode, appearing on behalf of the applicant while praying for suspension of sentence contended that, the co-accused Arvindji has been released on bail and his sentence has been suspended. So far as, role attributed to present applicant is concerned, he inflicted knife blow on the leg of the deceased and that is why, the court below convicted the accused for the culpable homicide not amounting to murder. Presently, the accused has undergone 4 years and 9 months of his imprisonment and in view of the possible delay in adjudication of conviction appeal, case may be considered.

6. On the other hand, Mr. Jay Metha, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and therefore, he would urge that no case is made out.

7. Issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence?

8. We have carefully examined the case records and considered the submissions made at the bar. The accused has been sentenced for a fixed period of 12 years. He has already undergone 4 years and 9 months. There is no possibility of appeal being likely to be heard in near future. Under such circumstances, in absence of any exceptional circumstances, we incline to exercise our discretion in favour of the applicant.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 08.07.2022 by the learned 4^th Additional Sessions Judge, Mehsana, in Sessions Case No. 74 of 2014 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 inform to the concerned police station as well as to this Court. Direct service permitted.