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

1 of 2025 In R/CRIMINAL APPEAL NO. 742 of 2021 ==========================================================

DIPIN @ DIPAK GANESHBHAI BARAIYA Versus STATE OF GUJARAT ==========================================================

Appearance:

MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1 MR J K 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 advocates appearing for the respective respondents waive service of Rule on behalf of respective respondents. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430(1) of BNSS, 2023, the applicant Dipin @ Dipak Ganeshbhai Baraiya, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 read with Section 34 of IPC.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 31.03.2021 and order of sentence passed in Sessions Case No.234 of 2015, whereby, the applicant herein was convicted and sentenced as under:

Section Imprisonment Fine In default S. 302 r/w. RI for Life 10,000 SI for 06 months S. 34 of IPC

4. Facts and circumstances giving rise to file appeal as well as this application are that, five accused were being tried and prosecuted for the offence of murder. The incident being took place on 08.11.2013. According to prosecution case, the accused have had hatched the conspiracy to kill Batuk Valjibhai and in order to execute the common object of the conspiracy, the accused assembled, armed with deadly weapons like swords, knives and wooden logs, intercepted the car in which the deceased was traveling and assaulted him and caused fatal injuries. On the basis of FIR and testimony of the eye witness, the trial court with the aid of Section 34, held guilty the accused for the offence of murder and causing damages to the vehicles etc.

5. Learned advocate Mr. Ashish Dagli, appearing on behalf of the applicant while praying for suspension of sentence contended that, the incarceration period is 11 years and having regard to the role attributed to the applicant herein, the prayer may be considered.

6. On the other hand, Mr. J K Shah, learned Additional Public Prosecutor and Ms. Urvashi Mehta, learned advocate appearing for the original complainant have supported the impugned judgment and order of conviction as passed by the trial Court and contended that, the presence of the applicant (A4) being proved and the act was done in furtherance of the common intention of all and therefore, merely he did not have caused a fatal injuries to the deceased, cannot be a ground to extend the benefit, as prayed and therefore, in absence of any exceptional circumstances, the application may not be entertained.

7. Issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence?

8. We have carefully examined the case records and considered the submissions made at the bar. We take notice of the fact that, the accused A1 to A3 had given a fatal blow on the body of the deceased and so far role attributed to the applicant herein is concerned, he had caused the damages to the car and after the incident, tried to destroy the evidence. In such circumstances, having regard to the role attributed to the applicant herein and period of incarceration, we are persuaded to exercise our judicial discretion in favour of the applicant.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 31.03.2021 by the learned Sessions Judge, Bhavnagar in Sessions Case No.234 of 2015 is suspended during the pendency of the Criminal Appeal and the applicant shall be re