IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.

1 of 2022 In R/CRIMINAL APPEAL NO. 1310 of 2022 ================================================================

BRIJRAJSINH LAKHDHIRSINH JADEJA Versus STATE OF GUJARAT ================================================================

Appearance:

MR VIRAT G POPAT(3710) for the PETITIONER(s) No. 1 MR.L.B.DABHI, APP, for the RESPONDENT(s) No. 1 ===============================================================

CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 01/08/2023

IA ORDER

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. RULE. Learned APP waives service of Rule on behalf of the Respondent–State.

2. The present application is filed for suspension of sentence /permanent bail under Section 389 of the Criminal Procedure Code by the convict of offence under Section 302 of the Indian Penal Code by the Sessions Judge, Anand in Sessions Case No.170 of 2015 by judgment and order dated 30.12.2021. By the aforesaid judgment, the applicant is ordered sentenced to rigorous imprisonment for life with fine of Rs.2,500/- and in default of payment of fine, further simple imprisonment for a period of one .

month

3. The appeal was admitted by order dated 11.07.2022. The application was essentially filed on the ground that the applicant has already undergone six years and five months till date.

4. It is a case where the incident took place on 31.12.2014 at 17:15 hours, where on account of overtaking of vehicle there was a scufÒe resulting into knife injury upon the deceased Vipul which is attributed to the present applicant.

5. Learned advocate for the applicant at the outset submitted that the incident is an outcome of a scufÒe between two sides on account of the applicant who was driving the Alto Car intercepted the deceased and the complainant who were on the Activa and confronted them for taking a turn without indicating the side. Learned advocate submitted that the applicant is only 19 years of age at the time of incident and has also undergone six years of imprisonment.

5.1 Learned advocate by drawing attention of this Court to the deposition of the complainant, who is also an eyewitness submitted that from the evidence of this witness it is clear that there was no premeditation on the part of the applicant to commit murder, but only on account of fit of rage and rather as an act of his defense that the applicant has inflicted the blow. Learned advocate submitted that it was in fact the applicant who was assaulted which is evident from the fact that windows of the car were damaged and therefore, to save himself, the applicant had inflicted the injury.

5.2 It is further submitted that if the injury is taken into consideration, there is only one injury sustained though on a vital part and therefore, there does not appear to be any premeditation on the side of the applicant.

5.3 It is lastly submitted that for the offense in all five accused were charged of whom the accused Nos.2 to 5 have been acquitted and it is only the applicant who has been convicted.

6. As against this, learned Additional Public Prosecutor has objected to the grant of application submitting that it appears to be a case of road rage as the witness has deposed that the applicant was driving the Alto Car in full speed and as the applicant had to apply sudden breaks because of turn being taken by the complainant, the applicant had overtaken and intercepted of Alto Car and therefore, they have full intention to assault. Learned APP has also drawn attention of this Court to the scientific evidence which contains the discovery of the weapon knife and the same containing blood stain.

7. In rejoinder, learned advocate for the applicant submitted that the entire sequence does not indicate offense of Section 302 of IPC, at best, be treated as an offense under Section 304 of IPC and if that be so, the applicant has already undergone six years of imprisonment.

8. He