The mere presence of an accused does not imply shared intention to commit murder; suspension of sentence granted due to lengthy incarceration and fair chances of appeal.

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 Ms. Tanaveer Loladia, 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 Bharatiya Nagarik Suraksha Sanhita, 2023, applicant Dayalsing Kevalsing Sardar seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 and 34 of the IPC.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 27.10.2023 and order of sentence passed in Sessions Case No.01 of 2022, whereby, the applicant herein was convicted and sentenced as under:

(i) Section 302 and 34 of IPC: R.I. for Life and fine of Rs.5,000/- and in default thereof, further imprisonment for 6 months;

5. Facts and circumstances giving rise to file present application are that, on 30.10.2021 at about 9:30 p.m., the accused Rohit has given a knife blow to the deceased Sikandar and the present applicant-accused had caught hold the deceased as the dispute with the accused Rohit arose for recovery of Rs.2400/- advanced to the deceased by him. Pursuant to the FIR registered with Upleta Police Station, the accused were arrested. At the end of investigation, the chargesheet came to be filed. The court below after appreciation of the evidence, convicted the accused with the aid of Section 34 and directed them to undergo life imprisonment.

6. Ms. Tanaveer Loladia, learned counsel for the applicant has submitted that, the ingredients of Section 34 so far applicant-accused is concerned, are not attracted at all and there is no evidence that the accused shared the common intention and therefore, mere presence of the applicant with the principal accused would not be a ground to infer that he was sharing the same intention to kill the deceased. The accused was on bail and till date, the incarceration period is of 2 years and more and there is no possibility of appeal being heard in near future and considering the fair chances of appeal being allowed, the case may be considered.

7. On the other hand, Mr. Krutik Parikh, learned Additional Public Prosecutor has vehemently opposed the contention and submitted that, the accused had caught hold the deceased which shows that, he was having common intention to kill the deceased and therefore, the court below while convicting the accused, has not committed any error and thus, no ground exists for entertaining this application.

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, before the trial court, the applicant was on bail and incarceration period is more than 2 years. So far role assigned to the applicant is concerned, he caught hold the deceased. The accused did not have caused any injury and as per the evidence, there is no clarification that the accused had caught hold the deceased till the act was completed. In such circumstances, having regard to the possible delay in adjudication of the appeal and fair chances in succeeding the appeal, we deem it fit to suspend the substantial sentence and release the applicant on bail.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 27.10.2023 by the learned 5^th Additional Sessions Judge, Rajkot at Dhoraji in Sessions Case No.01 of 2022 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 befo