A conviction for murder can be re-evaluated as culpable homicide not amounting to murder based on the context of provocation; suspension of sentence warranted after a lengthy incarceration.

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. Rule. Learned APP waives service of Rule on behalf of respondent-State. By consent, Rule is fixed forthwith.

2. We have heard Mr. M. M. Tirmizi, learned advocate for Mr. A. U. Saphiya, learned advocate for the applicant and Mr. Pranav Dhagat, learned APP for the respondent-

State.

3. By way of this application under Section 389(1) of The Criminal Procedure Code , 1973, applicant – Ashraf @ Bhuro Nasirbhai Shekh, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 read with Section

34 of the IPC and Section 135(1) of G.P. Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 14.11.2017 and order of sentence passed in Sessions Case No.6 of 2015, whereby, the applicant herein was convicted and sentenced as under:

(i) Section 302 r/w. Section 34 of IPC: R.I. for Life and fine of Rs.10,000/- and in default thereof, further imprisonment for 3 months;

(ii) Section 135(1) of G.P. Act: R.I. for 04 months and fine of Rs.500/- and in default thereof, further imprisonment for 10 days;

5. Facts and circumstances giving rise to file present application are that, on 21.10.2014 at about 5:00 p.m., the dispute between the applicant and deceased Firoz arose because the complainant party i.e. Ashraf had demanded money to purchase drugs, but the deceased did not agree for the request. It is further case of the prosecution that, on this issue, the heated exchange of words being took place between the parties and after some time, 3 persons including the accused, came before the deceased and stabbed him on his abdomen. The operation for removal of the knife blade was undertaken and after 9 days, the deceased succumbed to his injuries. The complaint came to be registered and upon completion of investigation, the accused was tried by the sessions court and finally, he came to be convicted and sentenced as referred above.

6. Mr. Tirmizi, learned advocate appearing on behalf of the applicant while praying for suspension of sentence contended that, the incarceration period is more than 10 years and there was no intention to kill the deceased as in a sudden fight, heat of passion, the incident occurred and therefore, at the most, the act would be one of culpable homicide not amounting to murder. In such circumstances, it is submitted that, the case is made out for suspension of sentence and grant of bail.

7. On the other hand, Mr. Dhagat, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that, the offence proved is serious one and in absence of any exceptional circumstances, the court may not exercise its discretion.

8. Issue arises as to whether the applicant has made out a case for suspension of sentence?

9. We have carefully examined the case records and considered the submissions made at the bar. We take notice of the fact that, the incarceration period is 10 years and 4 months and having regard to the huge backlog, the appeal may not likely to be heard in near future. So far merits is concerned, prima-facie, it appears that, the applicant and deceased were used to take narcotics and on that issue, the dispute arose which has resulted into death of the deceased. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant.