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 the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 24.11.2017 and order of sentence passed in Sessions Case No. 123 of 2015, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file present application are that the applicant accused was tried and prosecution for the offence of murder. According to prosecution case on 10.05.2015, deceased Dinesh Panchabhai was brutally killed with the weapon knife by the applicant herein. On the basis of FIR and upon filing of the chargesheet, the trial Court relying on the evidence led by the prosecution, held guilty the accused for the offence of murder.

5. Learned advocate Mr. P. M. Acharya, appearing on behalf of the applicant while praying for suspension of sentence contended that, the incarceration period is 10 years and more and appeal will not likely to be heard in near future. So far as merit is concerned, it is submitted that, at relevant time, the accused was at the anther place and he was falsely implicated by the police. The discovery and recovery of the knife having not proved in terms of Section 27 of the Evidence Act. There are material omission and contradictions in the oral testimonies of the witnesses. The blood group of the accused and deceased are similar and therefore the forensic evidence is not helpful to the prosecution. In such circumstances, it is submitted that, there are chances in succeeding the appeal. However, fact remains that, the appeal may not likely to be heard in near future. Thus, it is submitted that the prayer may be considered.

6. On the other hand, Mr. L. B. Dabhi, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that the accused came to be convicted for the offence of murder. The trial Court has properly appreciated the evidence. The issue raised herein cannot be appreciated at this stage. Thus, it is submitted that no case is made out for exercising discretion.

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. It is no doubt true that, after 10 years, the appeal challenging the conviction has not come on board for final hearing. In such circumstances having regard to the role attributable to present applicant and evidence in support of the charge, without much discussion on merits of the case, 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 24.11.2017 by the learned 3rd Additional Sessions Judge, Bhavnagar in Sessions Case No. 123 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 address, shall inform to the concerned police station as well as to this Court. Direct service permitted.