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 Sections 302, 504 of the Indian Penal Code and Section 135 of GP Act.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 19.06.2017 and order of sentence passed in Sessions Case No. 30 of 2015, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file present application are that five accused persons who had tried and prosecuted for the offence of murder. According to prosecution case, the accused armed with deadly weapon, assembled with a common object to kill Hedubhai and accordingly on 03.06.2015, he was done to death by inflicting fatal injuries on his body. The learned trial Court, acquitted the accused nos. 3, 4 and 5 from all the charges, whereas, the accused no. 1 – applicant herein held guilty for the offence of murder and accused no. 2 came to be convicted for causing injuries to the witnesses and both the accused have been sentenced as referred above.

5. Learned advocate Mr. S. A. Qureshi, appearing on behalf of the applicant while praying for suspension of sentence contended that, the incarceration period is 10 years and 3 months and till date, the appeal has not been listed for final hearing. That this is a case of free fight and in the cross case, the complainant party has been convicted for causing grievous injury upon the accused party and in the cross case, the applicant herein had sustained head injury. In such circumstances, it is submitted that the trial Court could not have convicted the accused for the offence of murder.

6. On the other hand, Ms. Asmita Patel, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that instead of granting bail on the long incarceration, let the appeal may 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. In the facts of the present case, the applicant herein gave a one blow on the body of the deceased with the weapon spear. It is also relevant to note that, the accused herein also sustained head injury in the same incident, for which, there is no explanation on the part of the prosecution. In the cross case, the trial Court has convicted the complainant party for causing grievous injury to the accused persons herein. In such circumstances, considering the period of incarceration and role attributable to present applicant herein, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of suspension of sentence and grant of bail.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 19.06.2017 by the learned 3rd Additional Sessions Judge, Gir- Somnath, Veraval in Sessions Case No.30 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 appeal is taken for final hearing and shall not change his address and in case of change in addre