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. By way of this application under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023, applicant seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 of IPC.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 23.10.2019 and order of sentence passed in Sessions Case No.49 of 2017 (Old Sessions Case No.96 of 2015), whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file present application are that, on 19.12.2014, the accused herein had killed one Punabhai Galabhai and his daughter by using weapon axe and after the murder, the dead bodies of both the persons were being thrown by him in the well. According to prosecution case, the incident was witnessed by one Tersingh Bariya (PW.7) as in the early morning at 5 o’ clock, he came to his farm so as to sprinkle water on the crops. On the basis of FIR and upon filing of the chargesheet, the trial court relying upon the testimony of sole eye witness, convicted the applicant and sentenced him to undergo life imprisonment.

5. Mr. Pathik Acharya, learned advocate appearing on behalf of the applicant while praying for suspension of sentence contended that, the so called eye witness is got up witness as for a period of 10 to 12 days, despite of having his presence with police, he did not utter a word that he has seen the incident and therefore, when there is a delay in recording the statement by the police and same has not been explained by the prosecution, the version of sole eye witness without further corroboration to his evidence cannot be relied upon and therefore, having regard to the period of incarceration which is almost 10 years and 11 months, the prayer, as prayed, may be considered.

6. On the other hand, Mr. Dhawan Jayswal, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that, the offence proved is serious one and instead of granting bail, let appeal be fixed for final hearing.

7. Issue arises as to whether the applicant has made out a case for suspension of sentence?

8. We have carefully examined the case records and considered the submissions made at the bar. We take notice of the fact that, the prosecution case rests on the sole eye witness namely Tersingh Bariya (PW.7) and admittedly for a period of 10 to 12 days, despite of having opportunity to disclose the fact of incident to the police, he sat quiet. It is settled position of law that, delay in recording the statements of witnesses would not itself a ground to discard the evidence of prosecution case. In the facts of the present case, prima-facie, it appears that, there is no explanation coming forth for the delay in examination of witness. The period of incarceration is more than 11 years. In such circumstances, when the possibility of early hearing of the conviction appeal is remote and having regard to the nature of evidence, we deem it fit to exercise discretion.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 23.10.2019 by the 3^rd Additional Sessions Judge, Limkheda, Dist: Dahod in Sessions Case No.49 of 2017 (Old Sessions Case No.96 of 2015) 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 the satisfaction of the trial Court subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when