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 Ms. Dipika P. Bajpai, learned advocate and Mr. Jay Mehta, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023, applicant Prakashbhai @ Pako Shanaji Patni, 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 30.07.2022 and order of sentence passed in Sessions Case No.125 of 2017, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that five accused persons were tried and prosecuted for the offence of murder. The incident took place 21.08.2015. The reason for the incident was quarrel being occurred, when the deceased instructed his son not to stand near the place where the accused were playing gamble. The applicant lost his temper and went to the house of the deceased and poured kerosene and set him ablaze. On the basis of the complaint of the deceased and dying declaration, the chargesheet came to be filed against the 5 persons alleging that the accused with their common object to kill the deceased set him ablaze.

6. Learned advocate Ms. Dipika P. Bajpai, appearing on behalf of the applicant while praying for suspension of sentence contended that, the incarceration period is 10 years and more and as such in the dying declaration recorded by the Executive Magistrate, there was no specific allegations being alleged by the deceased that the applicant/accused set him ablaze. The witnesses of the incident have also not alleged against the applicant. In such circumstances, considering the contraction and discrepancies on the aspects of involvement of the applicant herein, there are fair chances in succeeding the appeal, and therefore, it is prayed that, the prayer may be allowed.

Learned advocate has submitted that, when there is no possibility of appeal being taken up for hearing in immediate near future, the Court may exercise its discretion by passing order of suspension of sentence and grant of bail to the applicant.

7. On the other hand, Mr. Jay Mehta, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and that the applicant had poured the kerosene and set the deceased ablaze and in this regard there is sufÏcient evidence produced by the prosecution and the trial court has rightly convicted the accused. Thus, it is prayed that no case is made out and application may not be entertained.

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 incarceration period is more than 10 years, and there are less chances of appeal being listed for final hearing in near future. We have also examined the dying declaration relied by the prosecution. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of suspension of sentence and grant of bail.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 30.07.2022 by the learned 8th Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.125 of 2017 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 t