BELA M.TRIVEDI,C.J. - (1.)The present applicant Vijaybhai @ Nano Bavchandbhai Chavda - original accused No.3 has filed the present application seeking suspension of sentence under Section 389 of Code of Criminal Procedure pending the appeal arising out of the judgment and order dated 20.02.2019 passed by the Sessions Judge, Bhavnagar in Sessions Case No.13 of 2016.
(2.)The applicant along with other three accused viz. Sanjaybhai Chhaganbhai Khasiya, Ravibhai Bhopabhai Khasiya and Ankurbhai Babubhai Khasiya has been convicted and sentenced for the offences under Sections 302 , 120B , 34 and 201 of the Indian Penal Code. The accused No.5 - Rajubhai Vallabhbhai Chavda had expired during the pendency of trial. The accused No.6 - Vinubhai @ Balo Makabhai Jijariya has been acquitted from all the charges.
(3.)It is submitted by learned advocate Mr.Patadiya appearing for the applicant that though the witness Rinkalben, who happened to be the sister of the accused Ravibhai had given her statement before the Magistrate under Section 164 of the Cr.P.C., she had turned hostile in her evidence before the Court. He further submitted that as per the evidence of the Magistrate before whom the said statement was recorded, the identity of the said witness Rinkalben was not verified by the Magistrate. According to him, the evidence adduced by the prosecution was not sufficient to convict the present applicant for the alleged offences and there are fair chances of the applicant being acquitted at the time of final hearing of the appeal.