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. By way of this application under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023, applicant, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 of the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 21.07.2022 and order of sentence passed in Sessions Case No. 62 of 2019, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file present application are that the accused and complainant party had a fight on the issue of who will first bat in the cricket game and thereafter when the deceased Shirish came to his house, the accused herein raising the earlier dispute with him, caused injury in his head with the roof top tile, as a result, due to head injury the deceased died in the hospital. On the basis of FIR and chargesheet, the applicant accused tried and prosecuted for the offence of murder and upon conclusion of the trial, he found guilty for the offence of murder.

5. Learned advocate Mr. G. P. Baghel, appearing on behalf of the applicant while praying for suspension of sentence contended that, there was no intention to cause such kind of injury on the body of the deceased and at the most, the case of the applicant would fall under Section 304 Part-II of the IPC, which provide for punishment for offence of homicidal death not amounting to murder. In such circumstances, it is prayed that the prayer may be considered.

6. On the other hand, Mr. Bhargav Pandya, 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 at this stage, the contentions as raised, cannot be considered.

7. Issue arises 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. The deceased had sustained injuries allegedly caused by the accused with the aid of roof top tile and the motive behind the incident was cricket game. In such circumstances, considering the nature of injury and the manner in which, it has been caused, we are prima-facie view that the act would fall under Section 304 Part-II of the IPC. The incarceration period is 7 years and 3 months and the maximum punishment under Section 304 Part-II is 10 years. Thus, without much discussion, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of suspension of sentence and grant of bail.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 21.07.2022 by the learned Sessions Judge, Valsad in Sessions Case No.62 of 2019 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not change his address and in case of change in address, shall inform to the concerned police station as well as to this Court. Direct service permitted.