Suspension of sentence granted due to insufficient circumstantial evidence and the applicant's prolonged imprisonment without appeal prospects.

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. Nirad Buch, learned counsel for the applicant and Ms. Dhwani Tripathi, learned APP for the respondent-State.

3. By way of this application under Section 389(1) of the Code of Criminal Procedure, 1973, applicant Jamirkhan Bhanderi, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 201 and 328 of the IPC.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 14.02.2022 and order of sentence passed in Sessions Case No.37 of 2018, whereby, the applicant herein was convicted and sentenced as under:

(i) Sections 302 of IPC: R.I. for life and fine of Rs.25,000/- and in default thereof, further imprisonment for 2 years;

(ii) Section 201 of IPC: 5 years R.I. and fine of Rs.5,000/-and in default thereof, further imprisonment for 1 year;

(iii) Section 328 of IPC: 10 years R.I. and fine of Rs.5,000/- and in default thereof, further imprisonment for1 year;

5. Facts and circumstances giving rise to file present application is that, the applicant-accused Jamirkhan was in relation with PW.11 Hinaben Vaghela who was married to deceased Vaghuji Mahipatsinh. The accused and the deceased were belongs to same village namely Hathaj, Kheda at Nadiad. The deceased was the friend of the accused Jamir and that is why the relationship with the wife of the deceased gradually developed. In these background facts, in order to marry each other, the presence of the husband was the hurdle and therefore, the accused conspired to kill the deceased and in order to eliminate him, with the aid of two persons namely Vasimkhan and Altaf Pathan, took the deceased in their rickshaw. The rickshaw was driven by the applicant Jamir and deceased along with two accused, was at the backside of the rickshaw. The co-accused Vasim, at the instance of applicant purchased cold drinks from the nearby shops as referred in the case papers and after mixing the slipping pills in the cold drinks, the deceased was asked to drink the cold drinks and thereafter he was offered to drink wine. When the deceased fell unconscious, the rickshaw was taken on the way from Bareja towards Kheda, the accused took Rs.4700/- from the pocket of the deceased as well as his Intex mobile phone and thereafter with the break wire, he was strangulated to death. The dead body of the deceased thrown near the canal. The wife of the deceased who could not conceive since the date of marriage, went to the hospital where her treatment was going on and was in contact with the deceased on mobile phone. On the next day i.e. on 10.01.2018, deceased had to come to the parental house of the wife as his presence for treatment was necessary. The mobile phone of the deceased was switched off. The wife PW.11 called the accused Jamir about the whereabouts and she was informed by him that the deceased was with him and thereafter, the deceased disappeared. The brother of the deceased came to know after 3 days from the police that the dead body of the deceased was lying in the canal. The family along with the complainant brother went to the place. The dead body of the deceased found in a decomposed manner. However, the break wire found from the neck of the deceased. In such circumstances, the police registered a case of murder against the unknown persons. During the investigation, the police found that, the applicant Jamir who was in relations wit the wife of deceased, have hatched the conspiracy to kill the deceased and in order to execute the conspiracy, he along with two others orchestrated the murder of the deceased as referred above. The investigating agency mainly relied on the hotel records to prove the relations of the PW.11 and the accused Jamir. The discovery of break wire and confessional statement of the accused allegedly made in terms of Section 27 of