COMMON 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 these applications under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023, applicants seek suspension of sentence awarded to them by the Sessions Court concerned for the offence punishable under Section 302 read with Section 149 of IPC and Sections 323 and 337 read with Section 149 of IPC.

3. The present appeals and the applications for suspension of sentence arise from the judgment dated 18.04.2023 and order of sentence passed in Sessions Case No.28 of 2021 (Old Sessions Case No.31 of 2020), whereby, the applicants herein were convicted and sentenced as under:

4. Facts and circumstances giving rise to file present applications are that, eight accused persons were tried and prosecuted for the offence of murder. According to prosecution case, before the incident, the A1 was scolded by the deceased on subject of encroachment over the land which was used for garbage purpose. The accused keeping grudge on the incident of scolding, formed an unlawful assembly, armed with deadly weapons like batten and sticks, came at the scene of occurrence where the deceased Vinod Jethabhai was brutally assaulted and after the incident, the accused by pelting stones, caused injuries to the witnesses. In this background facts, the offence came to be registered with Kapadwanj Rural Police Station. The accused persons were put on trial. At the end, the trial court after appreciation of evidence, held guilty all the eight accused persons for the offence of murder with the aid of Section 149 IPC.

These applications are being preferred by A3, A5 and A8 namely Sunilbhai, Vitthalbhai and Ajaybhai.

5. Mr. Pratik Barot, learned advocate appearing on behalf of the applicants while praying for suspension of sentence contended that;

(i) This is a case of over implication as the name of the applicants were not disclosed before the treating doctor by the eye witness i.e. wife of the deceased (PW.15 – Shitalben Prajapati), as she was very much vigilant and had witnessed the incident and that is why the names of accused no.A1 and A2 for causing injuries to her husband (Bhavansingh Buddhabhai and Vijaybhai Babubhai) had been disclosed which shows that, with oblique motive, all the family members who actually did not participated in the offence, were involved.

(ii) The learned trial court failed to consider the aforesaid aspects while invoking Section 149 IPC. It is in this context, it is submitted that, the evidence of the eye witnesses seems to be unclear about the role attributed to the present applicants and that is why by making general allegations, the witnesses have alleged that, the accused inflicted injuries on the body of the deceased. In this regard, referring the evidence of the eye witnesses, it is submitted that, those who have sustained injuries, came later on at the scene of occurrence. The wife of the deceased admitted the said facts that, the other persons came later on. In other words, the main incident was witnessed by wife of the deceased – Shitalben. She failed to disclose the name of the applicants-accused before the doctor. If the accused would have participated in the offence, then, the wife of the deceased could have certainly disclosed their names. Thus, non-disclosing the names of the applicants before PW.13 and 18 would show that, the accused, later on impleaded with oblique motive. In this regard, it is further submitted that, the applicants herein were not involved in the earlier dispute arose between the deceased and A1 and there was no motive on their part to lend support to the accused herein. Thus, prima-facie, the prosecution failed to prove the existence of common ob