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 awarded to him by the judgment and order dated 03/09/2025, passed by the Learned 3rd Additional Sessions Judge, Dahod in Sessions Case No.20 of 2021 whereby he was convicted for the offence punishable under Sections 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs.1,00,000/- in default to undergo six months simple imprisonment.

3. Facts and circumstances giving rise to file present application as is appearing from the application that It is the version of the complainant that on 05/10/2020, the complainant along with co-employee Sarabjeet Ramnath Yadav (deceased) were on their duty at wagon shop department at railway workshop, wherein at around 9:00 am Hrs., the appellant -accused came to them and had asked the complainant for Rimmer to which the complainant replied that he does have it but it is broken and further the complainant had replied to the accused that he may get a chit from his senior in order to get the Rimmer, during that course, the accused ran towards the deceased and assaulted the deceased with knife and therefore the deceased fell down. That upon hearing the hue and cry, other persons had approached the deceased and had thereby taken the deceased to railway. Accordingly, the complaint was filed.

4. Learned Counsel Mr.Dipak Dave assisted by Mr.Kinkhabwala, learned advocate appearing for the applicant has submitted that the impugned judgment and order of conviction is unjust, improper, and contrary to the settled principles of law. He would submit that entire case of the prosecution is rest on the circumstantial evidence and the prosecution has failed to prove its case beyond all reasonable doubt. He would further submit that complainant and other material witnesses have been declared hostile by the prosecution and thus the prosecution has not proved the entire chain of circumstance which would link the accused with the crime in question. He would further submit that since there are chances of accused earning acquittal, as also considering the period of incarceration undergone by the applicant uptil now i.e. about 05 years and 05 months, 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 trial 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, it transpires that the entire case of the prosecution is primarily based on circumstantial evidence, as also prima facie, as submitted by learned advocate for the applicant, the complainant and other material witnesses have been declared hostile by the prosecution; 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 and considering the overall facts and circumstances of the case and the fact that there are very bleak chances of hearing the appeal finally in near future and the period of incarceration undergone by the applicant uptil now i.e. about to 05 years and 05 months, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence. We have considered the submissions made at the bar and considering the period of incarceration which the applicant has undergone upti