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

1 of 2025 In R/CRIMINAL APPEAL NO. 2446 of 2025 ==========================================================

LALABHAI AKA TIKO JASUBHAI NAYAK Versus STATE OF GUJARAT ==========================================================

Appearance:

MR MAHARSHI PATEL WITH MS HETA PANCHAL FOR HL PATEL ADVOCATES(2034) for the PETITIONER(s) No. 1 MR JK SHAH, APP for the RESPONDENT(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 02/12/2025

IA ORDER

(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.Maharshi Patel with Ms.Heta Panchal for H.L.

Patel Advocates and Mr.J.K. Shah, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Lalabhai Aka Tiko Jasubhai Nayak, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 of the Indian Penal Code.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 17.09.2024 and order of sentence passed in Sessions Case No.62 of 2022, whereby, the applicant herein was convicted and sentenced as under:

Section Imprisonment Fine In default S.302 of IPC Life Rs.10,0 Imprisonment for 1 Imprisonment 00/- year

5. Facts and circumstances giving rise to file present application are that the deceased Sumitra being a wife of the applicant accused was allegedly killed by the applicant due to her extramarital relations. According to the prosecution case, on 22.03.2022, due to matrimonial dispute, the applicant accused inflicted a stick blow on the body of the deceased as a result, she succumbed to injuries. On the basis of FIR and investigation, the chargesheet came to be filed and the accused was put on trial. At the end of the trial, the Trial Court on the basis of circumstantial evidence, held guilty the accused for the murder of his wife.

6. Learned advocate Mr.Maharshi Patel, appearing on behalf of the applicant while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law, as the prosecution miserably failed to prove that the accused was the author of crime. The eyewitness and other material witnesses have not supported to the case of the prosecution and as such, except FSL evidence nothing incriminating material being found against the accused. In such circumstances, it is submitted that there is merit in the appeal and the accused was throughout on bail and final hearing of the appeal will take considerable time and therefore, it is prayed that the prayer may be considered.

7. On the other hand, Mr.J.K. Shah, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that the Trial Court found guilty the accused for the offence of murder and at this stage, in absence of any exceptional circumstances, the Appellate Court cannot reappreciate the evidence.

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. In the facts of the present case, the eyewitness and other material witnesses have not supported to the case of the prosecution. On perusal of the findings of the conviction, it appears that based on the FSL report and with the aid of Section 106, the Trial Court held guilty the accused. It is settled legal position of law that the opinion of the FSL on the aspect of result of blood groups is corroborative piece of evidence and so far as Section 106 of the Evidence Act is concerned, the Supreme Court in its vari