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Judgment
R. T. Vachhani, J
Learned Advocate Ms.Contractor appearing for the applicant No.5 – Bharat Hemrajbhai Rabari does not press for this application qua him. Accordingly, present application stands disposed of as not pressed for qua applicant No.5 - Bharat Hemrajbhai Rabari.
Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.
By way of this application under Section 430(1) of BNSS, 2023, the applicants herein seek suspension of sentence awarded to them for the offence punishable under Sections 147, 148, 149, 302, 34, 120-B of the Indian Penal Code by the judgment and order of sentence dated 31.07.2025 passed in Sessions Case No.21 of 2011 by the learned 3rd Additional Sessions Judge, Sabarkantha – Idar whereby, the applicants herein was convicted and sentenced as under:
Section
Imprisonment
Fine
In default
S.149, 34, 120-B r/w S.302 of IPC
RI for Life
25000
RI for 1 year
S. 148 r/w 149, 34 and 120-B of IPC
RI for 2 years
2000
RI for 6 months
S.147 r/w 149, 34 and 120-B of IPC
RI for 2 years
2000
RI for 6 months
The applicants accused was tried and prosecuted for the offence of murder. As per the case of prosecution, the applicant-accused by keeping grudge over the previous dispute by hatching a conspiracy having armed with lethal weapons like axe and stick attacked on brother of the complainant and caused multiple injuries on various parts of the body and thereby caused his death. The offence of murder being registered against the applicant accused and upon filing the chargesheet, he was put on trial and at the end, the court found him guilty for the offences as referred above.
Mr.J M Panchal, learned Senior Counsel appearing with Ms.Contractor, learned Advocate for the applicants-convict while praying for suspension of sentence and grant of bail has submitted that, the incarceration period is more than one year till date, the chances of early hearing of the appeal is bleak and/or remote. On merits, it is submitted that, there exists a rivalry between the two side prior to the incident in question and therefore, false implication of the accused in the offence in question cannot be ruled out. It is further submitted that though the TI parade has been conducted; but since the accused side and the complainant side knew each other in view of the fact that there was previous animosity, the said evidence would not come to the rescue of the prosecution and therefore, also the sentence imposed upon the accused may be suspended. Learned Senior Counsel Mr.Panchal would further contend that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law, as there is no possibility of appeal being taken up for hearing in immediate near future, the Court may exercise its discretion by passing order of suspension of sentence and grant of bail to the applicant.
On the other hand, Mr.Pandya, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and therefore, they would urge that, considering the gravity of offence and societal interest, this is not a case to exercise discretion in favour of the applicant accused.
We have examined the case records and considered the submissions made at the bar. In the present case, the prosecution case rests on the testimony of sole eyewitness PW:10 Jamiben. Upon careful examination of the said testimony, it revealed that, the witness has mentioned names of 3 to 4 accused and stated that she noticed about the running away of the accused from the place of incident. It is relevant to note that the said eyewitness, after the incident, did not have identified the accused in the Test Identification Parade, allegedly held soon after the incident and after a gap of 6 years, for the first time, she referred the name of the accused. It is no doubt true that there was longstanding previous animosity between the parties and the accused belonged to the same family. In the facts of the present case, the accused by named, was known to the witness and there was no necessary to hold T.I. Parade, however, when it was held by the Investigating Officer, then why the witness failed to identify the accused in the T.I. Parade and the same has not been satisfactory explained by the prosecution. In such circumstances, having regard to the previous long enmity between the parties, and the testimony of sole eyewitness, without much discussion on merits of the case, we found that the case is made out for exercising judicial discretion.
Under the circumstances, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicants and to enlarge him on bail pending Criminal Appeal. It is required to be noted that the observations made hereinabove are tentative in nature and made only for the purpose of deciding the present application for suspension of sentence.
Accordingly, present application is allowed qua applicants No.1 to 4 and applicant No.6 herein. The sentence of the applicants No.1 to 4 and applicant No.6 awarded vide judgment and order of sentence dated 06.03.2025 passed in Sessions Case No.6 of 2021 by the learned Additional Sessions Judge, Devbhumi Dwarka is suspended during the pendency of the Criminal Appeal and applicants No.1 to 4 and applicant No.6 herein shall be released on bail on their furnishing a personal bond of Rs.25,000/- each with one surety each of the like amount to the satisfaction of the trial Court subject to conditions that:
(a) they shall not take undue advantage of the liberty or misuse the liberty;
(b) they shall not leave India without the prior permission of the concerned Sessions Court;
(c) they shall furnish the present address of his residence to the court concerned at the time of execution of the bond and shall not change the residence without the prior permission of the concerned Sessions Court.
(d) they shall proceed with the Criminal Appeal as and when it may be listed.
Rule made absolute to the aforesaid extent. Direct service is permitted.