Suspension of sentence is only granted in exceptional circumstances, particularly when the conviction may not be sustainable, which was not established in this case.

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.Mehul Sarad Shah, learned advocate and Ms. C.M. Shah, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant-Bharatbhai @ Appa Alubhai Rachhad, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 307, 326, 325, 324, 427, 341, 147, 148, 149 the Indian Penal Code.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 27.07.2021 and order of sentence passed in Sessions Case Nos. 91 of 2018 and 4 of 2019, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that on the date of incident i.e. 18.05.2018, between 12:00 to 12:30 in night hours, seven accused armed with deadly weapons like swords, skype (dhariya), knife, iron rod, formed unlawful assembly and laid an indiscriminate assault on the deceased Karshan Satiya and complainant PW:8 Ajay Makwana. The case in details are that on 18.05.2018, at about 12:00 o’clock in night, the deceased Karshanbhai along with his friend complainant PW:8 Ajay Makwana had proceeded to take dinner. They were in Alto Car allegedly, driven by deceased. When they reached near Chakku Talavadi, Gogha Road, Bhavnagar, the accused Bharat Ahir (present applicant), Siddhraj, Champu Ahir, Keval Ahir, Kishan Solanki, Hardik and Satish were standing in the road with their respective vehicles. When car arrived, the accused broken the windscreen of the car and took out the deceased from the car. The accused Bharat Ahir and Siddhraj armed with swords inflicted blows on the body of the deceased and when the complainant PW:9 Ajay Makwana came to rescue the deceased, he was severely assaulted by the accused with the swords. The accused Champu Ahir and others having deadly weapons like skype, knives and iron pipes, assaulted the deceased on the various parts of his body and thereafter, due to hue and cry, they ran away with their respective weapons. PW:10 Sajan Chauhla being a resident of nearby area was standing nearby the place of incident and after hearing the shouting, he went to the place and had saw the incident. The brother of the deceased came to know about the incident and he was rushed to the place of the incident. The deceased was taken to Government Hospital, Bhavnagar then shifted to private clinic for twice and then, lastly, he was at Ahmedabad Civil Hospital and succumbed to injuries, on 01.08.2018. In the aforesaid background facts, the offence of murder was added with the permission of the Court. After registration of the offence, the investigation was proceeded. The applicant accused and others had been arrested. The persons who were not known to the eyewitnesses, the T.I. Parade of the said accused held by the Executive Magistrate. The weapons discovered and recovered at the instance of the accused. The I.O. collected the medical treatment case papers of the deceased as well as the complainant PW:8. He also recorded the statements of the witnesses. The motive behind the murder was the dispute with the accused Kishan Solanki. In such circumstances, the I.O. laid a chargesheet before the Judicial Magistrate and the same was committed to the Court of Sessions, Bhavnagar. In order to prov