IA ORDER

1. RULE

. Learned Additional Public Prosecutor appears and waives service of notice of rule on behalf of the respondent-State.

2. By way of the present application under Section 430 of the Bharatiya Nagarik Surakhsha Sanhita, 2023, the applicant - accused is seeking suspension of sentence and release on regular bail during pendency of the present appeal against the judgment and order of conviction passed by the learned 2nd Additional Sessions Judge, Bharuch in Sessions Case No. 22/2019 dated 31.01.2026, whereby, the present applicant - accused was sentenced to the following term:

3. Heard learned advocate Mr. Vasimraja Kureshi for the applicant and learned APP Mr. Aditya Jadeja for the respondent State.

4. Learned Advocate Mr. Vasimraja Kureshi for the applicant submits that the applicant was originally charged for the offence punishable under Section 302 of Indian Penal Code, 1860 but has been convicted for the offence under Section 302 Part-II of the Indian Penal Code, 1860. Learned advocate submits that there are major contradictions in the depositions of the eye witness and the complainant and if the postmortem note is perused, the cause of death, as mentioned in the postmortem note, is respiratory failure due to pulmonary edema. Learned advocate further submits that column no. 17 of the postmortem note shows that the body of the deceased had only one abrasion with dried brown crust over it present on the back of the right shoulder and there was no fresh injury on any part of the body. Moreover, the eye witness – Shantubhai Jokhabhai Bhuriya has stated that the deceased had fallen down from the terrace but there is no injury caused to the deceased as per the opinion of the Medical Officer. The Medical Officer has opined that the pulmonary edema could be caused by some pulmonary disease and as per the case of the prosecution, the applicant has strangulated the deceased but no marks were found on the neck of the deceased. Learned advocate further submits that there is no iota of evidence that the applicant has committed any offence and the applicant has been sentenced for a fixed period of 8 years and has already undergone 2 years and 3 months of incarceration. Learned advocate further submits that the present appeal is not likely to be heard in near future and hearing of the same would take some long time and hence, no purpose would be served by keeping the applicant in jail for indefinite period with hardened criminals. The applicant has a good case on merits and hence, the application may be allowed and the applicant be enlarged on bail pending hearing and final disposal of the captioned Criminal Appeal.

5. Learned APP for the respondent – State has strongly objected to the submissions made by the learned advocate for the applicant and has submitted that the learned Trial Court has rightly convicted the present applicant as he has been involved in a very serious offence and has urged this Court to reject the present application.

6. On perusal of the impugned judgement and order of conviction and the paper book produced on record by the learned advocate for the applicant, the applicant has been charged for the offence under Sections 302, 323, 504 and 506(2) of Indian Penal Code, 1860 and the cause of death, as mentioned in the postmortem note, is respiratory failure due to pulmonary edema. As per the postmortem note, no injuries were found on the external genitalia or neck of the deceased and the only injury that was found was an abrasion with dried brown crust over it present on the back of the right shoulder. There are major contradictions in the evidence of the eye witness and the arguments of learned advocate for the applicant