ORDER :

VIMAL K. VYAS, J.

Order in Criminal Appeal

ADMIT. Learned APP Mr. Yuvraj Brahmbhatt waives service of notice of admission for and on behalf of the respondent – State.

Records and proceedings along with paper-book shall be called for from the concerned trial Court.

Order in Cr.M.A. No. 1 of 2025

1. RULE. Learned APP Mr. Yurvraj Brahmbhatt waives service of notice of rule for and on behalf of the respondent – State.

2. By way of filing the present application under the provisions of Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the applicant–convict (i.e. the original accused) seeks suspension of sentence imposed upon him vide judgment and order of conviction and sentence dated 28.07.2025 passed by the learned 2^nd Additional Sessions Judge, Bhavnagar at Mahuva, in Sessions Case No. 06 of 2021.

3. By the aforesaid judgment and order of conviction and sentence, the applicant-accused came to be held guilty and convicted for the commission of offence punishable under Section 304 Part-II of the Indian Penal Code, and consequently, the applicant-accused has been ordered to undergo sentence as under : -

4. It appears from the jail remarks that the applicant-accused has already undergone 03 months and 17 days of incarceration as on date out of the total sentence of seven years. The appeal came to be admitted by this Court today itself.

5. At the outset, learned advocate Mr. Viral Vyas appearing for learned advocate Mr. Ashish M. Dagli for the present applicant-accused has submitted that initially the applicant- accused was charged for the offence punishable under Section 304 of the Indian Penal Code, however, at the end of the trial, the trial Court, has convicted the applicant-accused for the offence punishable under Part-II of the Indian Penal Code since the act of the applicant was not intentional, and thought it fit to impose a fixed term of sentence of rigorous imprisonment for seven years along with fine of Rs. 2,00,000/-. Learned advocate has submitted that the applicant-accused is ready and willing to deposit the amount of fine imposed by the trial Court and he was on bail during the trial. Learned advocate has further submitted that the applicant-accused has already undergone 03 months and 17 days of incarceration as on date out of the total sentence of seven years. Learned advocate has, therefore, submitted that the applicant-accused has atleast an arguable case for suspension of sentence.

6. Learned advocate Mr. Vyas while placing reliance on the judgment of the Supreme Court in the case of Bhagwan Rama Shinde Gosai Vs. State of Gujarat , reported in 1999 (4) SCC 421, has urged that since the trial court has convicted and sentenced the applicant-accused for a fixed term of rigorous imprisonment for seven years along with the fine, and since there are very remote chances of the hearing of the appeal in the near future as the same has been admitted by this Court today itself, the present application may be allowed and the applicant-convict may be released on bail by suspending his sentence, during the pendency and hearing of the Criminal Appeal.

7. Vehemently opposing the application filed by the present applicant-convict, learned APP Mr. Yuvraj Brahmbhatt appearing for the State has submitted that the application is not required to be entertained since the applicant-accused has been convicted for the serious offence under Section 304 Part-II of the Indian Penal Code. Learned APP has submitted that the trial court, after precisely appreciating the evidence; both, ocular as well as documentary, has convicted the present applicant-accused for the alleged offence. Learned APP has further submitted that the evidence of the prosecution witnesses clearly establishes the complicity of the present applicant-convict in the alleged offence. Thus, he has urged that the present