IA ORDER

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

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(1) of BNSS, 2023, the applicant herein, seeks suspension of sentence imposed upon by judgment and order of sentence dated 26/08/2021 passed by the Learned Sessions Court, Ahmedabad (Rural) in Sessions Case No.221 of 2018 for the offence punishable under Sections 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs.5,000/- in default to undergo SI for one month. He was also convicted for the offence punishable under Section 120B of the Indian Penal Code and Section 135(1) of the GP Act and sentenced to undergo six months and one month SI respectively.

3. Facts and circumstances giving rise to file present application as is appearing from the application is that applicant-accused no.1 was the brother-in-law of the deceased and accused no.2 was the wife of the deceased, and both had an illicit relationship. With the intention to eliminate the deceased, they entered into a pre-planned criminal conspiracy and acted in furtherance of their common intention. At the instance of accused no.2, the applicant-accused no.1 called the deceased, Dilipbhai, on the pretext of delivering a parcel for Rs.500 to an isolated, bushy area behind Jagatpur Road near village Chharodi. On 31/07/2018, between 08:30 and 11:00 hours, when the deceased reached the spot and before he could understand anything, the applicant-accused no.1 attacked him with a sharp knife on the neck, causing fatal injuries and resulting in his death, and thereafter fled from the scene. On the basis of the complaint, an FIR being C.R. No. 228/2018 was registered at Sola High Court Police Station for offences under Sections 302, 114 and 120-B of the IPC and Section 135(1) of the G.P. Act, and investigation was carried out in accordance with law.

4. Learned Advocate Ms.Chauhan appearing for the applicant has submitted that previously, the applicant moved an application being CR.MA No.1 of 2021 in CR.A No.1455 of 2021 seeking suspension of sentence which came to be withdrawn by an order dated 13/06/2023 with a permission to file a fresh application after a period of one year. Under the aforesaid circumstances, the present application seeking suspension of sentence has been filed.

4.1 Learned advocate for the applicant has further submitted that the incident happened in the way that the deceased is known to the applicant- accused No.1 as he had love affair with wife of deceased and the case of the prosecution mainly rests on the circumstantial evidence and the considering the evidence on record, the prosecution has failed to prove to establish the complete chain of circumstance showing involvement of the accused in commission of the crime and therefore there may be chances of acquittal of the applicant. It is submitted that the co-accused in same set of allegations, has only been convicted to undergo a sentence of 6 months simple imprisonment. It is further submitted that there may be chances of the applicant-accused No.1 being acquitted at the hearing of the appeal, as also considering the period of incarceration undergone by the applicant uptil now i.e. about to 8 years, it is therefore prayed to allow this application and to suspend the order of sentence.

5. On the other hand, learned APP has supported the impugned judgment and order of conviction as passed by the learned Sessions Court. The applicant accused and others held guilty for the offence of murder and the court below while recording the conviction, has not committed any error, either on law or on facts and therefore, court may not entertain this application.

6. We have examined the case records and considered the submissions made at the bar. Having heard the learned advocates appearing for the respective parties, as submitted by learned advocate for the applicant – accused