ORAL 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, the applicant-convict seeks suspension of sentence in connection with the conviction and sentence recorded by judgement and order of sentence dated 08/10/2024 passed by the learned 4th Additional Sessions Judge & Special Judge, Atrocity, Bhavnagar in Atrocity Case No.1 of 2021.

3. The present appeal and the application for suspension of sentence arise from the aforesaid judgment and order of conviction and sentence whereby the applicant herein was convicted and sentenced for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and are also directed to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo six months RI.

4. Facts and circumstances giving rise to file present application as is appearing from the application that The brief facts of this case are that, on 19-11-2020 at around 17:00, Accuse no. 1 to 4 gathered to drink Alcohol/Cola near Tekari Dhar, Kodala vadi location, village Matalpar at that time they planned criminal conspiracy to murder Sureshbhai Rathod. They came around 6:30-7:00 at Vani Pan/coldrinks/Mobile shop at Village Matalpur but nor found Sureshbhai Rathod therefore, they involved Acusse no. 5 Govindbhai @ Gobarbhai who came there to fill milk from dairy and informed him about criminal conspiracy regarding to murder Sureshbhai Rathod. Hence accuse no. 5 kept eye on the movement of deceased Sureshbhai Rathod and checked his movement and gave information to Accuse no. 1, and accused No.-4 took the motorcycle of accused No.-3 to Matalpar village while checking on the deceased Sureshbhai. Accused No.-1 to 3 dropped Sureshbhai Rathore from his house in Matalpar village near High School near Chaganbhai's wadi in dark area on Beda Road on the pretext of settling dispute with Hemantbhai. At that spot accused no. 4 and 5 held the deceased and accused no.-1 to 3 inflicted serious grievous injuries (hurt) on hand, leg, cheek, groin, on back with knife and stick and killed Sureshbhai Rathod (Victim). Thus, despite the deceased being a Scheduled Caste, the accused formed a criminal conspiracy and assisted each other and beat the deceased with a knife and a stick, causing death. Thereafter, the compliant was registered and the investigation was handed over to the investigating officer.

5. Learned Advocate Mr.Acharya appearing for the applicant has submitted that case of the prosecution mainly rests on the circumstantial evidence; however the prosecution has failed to prove to link the accused with the crime in question. He would further submit that the case of the prosecution also rests on the scientific evidence as the CCTV footage has been relied upon by the prosecution; but no such certificate as mandated under Section 65-B of the Evidence Act has been produced on record and therefore the credibility of the said evidence also comes under the shadow of doubt. He would further submit that prosecution has also failed to establish complete chain of circumstance showing involvement of the accused in commission of the crime. He would submit that out of the total five accused persons, org. accused No.3 has also earned the acquittal and therefore he would submit that there may be chances of acquittal of the applicant. It is therefore prayed to allow this application and to suspend the order of sentence. He would further submit that considering the period of incarceration of about 05 years as of now, he would submit to release the applicant herein on bail pending the hearing of the appeal. He would therefore submit that there are very bleak chances of hearing the main appeal in near future, learned advocate for the applicant would submit to allow the present application by suspending the sentence imposed him.

6. On the other hand, learned Additional Public Prosecutor