ORDER :

P. M. RAVAL, J.

1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State.

2. The present application is preferred by the applicant – Mohmad Ashif Abdulgani Memon – original accused under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 19.9.2024 by the learned Sessions Judge, Gandhinagar in Sessions Case No.31 of 2021.

3. Learned advocate Mr.Jit P.Patel appearing for the applicant has mainly contended as follows :

(a) That as per the prosecution case, the present applicant was restrained from entering into the premises of Mother Dairy since the deceased Dipak Patel caught theft and manipulation of the dairy stock by the applicant herein and keeping grudge against the deceased, the applicant has committed crime. However, there exists no evidence or material in the form of the complaint, register entry or date entry which would suggest that the incident of manipulation dairy stock was committed by the applicant. On the contrary, transport contract of the applicant was renewed on 23.12.2019. Thus, very premises of motive to eliminate the deceased is negated.

(b) That as per the statement of PW 11 – Nilesh Solanki one truck broke down at the premises of the Mother Dairy and therefore, the present applicant was called to get it repaired. However, it is the case of the prosecution that though the applicant’s entry in the Mother Dairy factory premises was banned, the applicant entered into the Mother Dairy by accompanying mechanic for repairing of the truck and on seeing the present applicant at the Mother Dairy, the deceased and the applicant had verbal arguments and the applicant was asked to leave the premises. However, there exists no eye witness to the said incident and no material in the form of inward/outward entry or security check has been placed on record despite the dairy being highly secured and guarded premises.

(c) That accidental death came to be registered on 24.3.2020 and as per the case as narrated in the FIR, the deceased met with an accident while returning home after his shift at around 4.00 am. That inquest panchnama came to be drawn wherein the clothes of the deceased were handed over to the family of the deceased. However, no details with regard to the status of the clothes has been mentioned.

(d) That as per the say of PW 12 – Kuldipsinh Jadhav who is Security Officer, police personnel along with Nilesh came to the Mother Dairy premises and asked the staff to leave the office. After which, Nilesh Solanki was tutored and beaten by the police.

(e) That on 27.3.2020, the applicant was taken into the custody at around 2.15 pm based on the statement of Nilesh Solanki given by him at around 9.00 pm wherein the name of the applicant came to be disclosed as perpetrator of the alleged crime.

(f) That the truck alleged to have been used for committing the offence bearing No.GJ-01-DY-6325 came to be seized and during the preparing the panchnama, piece of cloth belonging to the deceased was recovered and except for this, no details are stated in the panchnama with regard to the body of the truck and any damage caused to the truck since it is the case of the prosecution that alleged accident was executed by the present applicant by dashing with the motor cycle of the deceased. Thus, it is argued that the evidence has been planted and the applicant has been falsely implicated.

(g) That in the cross examination of PW 12 – Security Officer working at the Mother Dairy, he has stated that he saw PW 11 – Nilesh Solanki and the police in the Mother Dairy on 26.3.2020 and that PW 11 – Nilesh Solanki has been tutore