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, the applicant-convict seeks suspension of sentence in connection with the conviction and sentence recorded by judgement and order of sentence dated 13/05/2025 passed by the learned 8th Additional Sessions Judge, Surat in Sessions Case No.463 of 2022.

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 two years RI.

4. Facts and circumstances giving rise to file present application as is appearing from the application that on the date of incident, the complainant namely Karamsinh Sakarambhai, Head Constable, Udhna Railway Police Station had received an information from the post master of Udhna Railway station through the railway auto phone of R.P.F staff constable Gobraj Bagadiya that dead body of an unknown female is lying near Senting line No.7 (loko join 7) and further informed to do needful. Thereafter, it was noticed that the dead body of the female was also carrying a fetus of around 7 to 8 months. Thereafter, the compliant was registered and the investigation was handed over to the investigating officer.

5. Learned Advocate Mr.Thakore appearing for the applicant has submitted that case of the prosecution mainly rests on the circumstantial evidence, the prosecution has failed to prove to establish the identity of the appellant – accused where the blur moment of the appellant – accused is alleged to have been seen in the so-called DVD player, as well as, failed failed to produce the certificate to be issued under Section 65-B of the Indian Evidence Act. 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 and therefore 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 04 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 has supported the impugned judgment and order of conviction as passed by the 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.

7. 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, it transpires that the entire case of the prosecution rests on the circumstantial evidence; the factum as to the frequently connected with the chain or the breaking thereof seems to be the entire gamut of the case on hand, as also prima facie the prosecution has failed to prove to establish the identity of the appellant – accused where the blur moment of the appellant – accused is alleged to have been seen in the so-called DVD player, as well as, failed failed to produce the certificate to be issued under Section 65-B of the Indian Evidence Act, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose