ORDER : ANANT S. DAVE, J. Rule. Learned APP waives service of notice of Rule on behalf of the respondent-State. 2. In this application under Section 389 (1) of the Code of Criminal Procedure, 1973 the applicant-convict-original accused no. 7 has prayed for suspension of sentence and to release him on bail during pendency of Criminal Appeal arising out of conviction under Sections 302, 364, 307, 201, 34, 147, 148, and 149 of the Indian Penal Code in Sessions Case No. 5 of 2013 by judgment and order dated 12.8.2016 passed by learned 5th Additional Sessions Judge, Mehsana at Visnagar. 3. The applicant, however, came to be acquitted from the charges for the offences under Section 120-B of IPC, the Arms Act and the Bombay Police Act. Out of 19 accused, 11 have been acquitted, five including the present applicant came to be convicted, two are absconding and against one trial has been stayed. 4. Heard learned advocate Mr. Nirag Buch for the applicant and learned APP, Ms. Shruti Pathak for the respondent-State of Gujarat. 5. In the backdrop of charge framed against all 19 accused and the case of the prosecution which has genesis in the incidence dated 27.6.2012 for which FIR being C.R No. I-101/2012 came to be registered with Unjha Police Station for various offences punishable under IPC, the Arms Act and the Bombay Police Act to which reference is made in earlier paragraph. As per the FIR, at the instance of one Mukeshbhai Ranchhodbhai Chaudhary, residence of Village-Unava, PW-4, the first informant had gone to Unjha, 5 kilometers away from Unava on motor cycle with one Prakash Ganeshbhai Chaudhary, now deceased around 9.00 hours in the morning to purchase the books but due to non-availability of books, first informant as well as Prakasbhai both had gone to the shop of Bipinbhai situated on the highway and while they were about to return to their village on the motor cycle which was driven by the deceased, the incident took place near Primary Health Center of Unava, where one white Maruti Swift car overtook the motor cycle and four persons got down from the car with revolver and swords. That the second part of the incident refer to two of the accused persons chasing them, one armed with a revolver and another with sword. That the second part of the incident refer to two of the accused persons chasing them, one armed with a revolver and another with sword. The first informant was fired by person, who chased him but he could escape the bullet injury and, in third part of the incident, while first informant was trying to jump over the wall and then one Qualis car came close to him and five to six persons got down from the car and one of those persons pulled the first informant by his legs and thereafter another person inflicted a sword blow on the head of first informant and he fell down. Then 8 to 10 persons started inflicting injuries with baseball bat on the head of first informant and one of the assailants inflicted sword blow on the left side of his chest. Likewise, injuries were inflicted by all persons. Two of the assailants with revolver in their hands also inflicted blow of revolver on the head of first informant, who could escape being taken inside the car. Other assailants started giving indiscriminate blows again by baseball bat etc. and lastly due to such injuries inflicted Prakashbhai Chaudhary later on died. The motive attributed is about dispute and differences with one Razzakbhai alias Poriyo, and the applicant herein later on came to be arrested. 6. While taking us to the record of the case containing evidence, it is submitted that in FIR assailants were not named and even no description was given. Later on name of the applicant herein surfaced after substantial period and basically it is about PW-15, PW-16 and PW-17 making statements before the police. That the applicant was identified in T.I Parade. Shri Buch, learned counsel appearing for the applicant has highlighted the nature of evidence qua the applicant herein and testimonies of eye-witnesses as well as other witnesses and submitted that the applicant herein is acquitted for the offence under Section 120-B of IPC, nature of FSL/serological report do not establish guilt of the accused and further the applicant is also acquitted for the offences under the Arms Act. That mere presence at the scene of offence of the applicant so established by the prosecution, by itself, was no ground for ordering conviction, as recorded. That mere presence at the scene of offence of the applicant so established by the prosecution, by itself, was no ground for ordering conviction, as recorded. That various other grounds are also pressed into service but at this stage of considering this application, reference to such nature of evidence and quality of such evidence is not necessary. 7. As against above, learned APP appearing for the respondent-State of Gujarat, however, would contend that in all 19 accused were involved in the crime and when FIR was registered against unknown persons, not naming the present applicant or other accused would not be a ground for accepting the prayer made in this application. That during the course of investigation, name of the applicant and role surfaced on record. That presence of the applicant herein-convict at the scene of offence is further proved by identification by four to five witnesses in the context of charges under Sections 302, 147, 148, 149 etc. of IPC and it will be sufficient, when proved by the prosecution and so believed by learned trial Judge. It is also submitted that motive aspect is also brought on record and all the accused collectively formed unlawful assembly and in furtherance of their common object committed the crime by inflicting indiscriminate injuries on various parts of body of the deceased, hence, the applicant deserve no relief at this stage when this application is preferred. Alternatively, it is submitted that appeal filed by the applicant and other convicts can be heard at the earliest. 8. We have given our thoughtful consideration to the nature of evidence surfaced on record and appreciated by the trial Court in the context of submissions made by learned advocate for the convict and learned APP. Admitted fact remains about acquittal of present applicant from the charges of offence under Section 120-B of IPC and offence under the Arms Act, and even prima facie evaluation of evidence of eye witnesses and other witnesses naming the present applicant and his presence at the scene of offence for which no corroboration is available in the form of FSL/serological report and again no weapon or usage of any weapon surfaces on record. Without commenting on other evidence in detail, we have been persuaded to exercise the discretion in favour of the applicant at this stage by suspending the sentence and granting bail to the accused-applicant. 9. Without commenting on other evidence in detail, we have been persuaded to exercise the discretion in favour of the applicant at this stage by suspending the sentence and granting bail to the accused-applicant. 9. Accordingly, this application is allowed. The applicant is enlarged on bail on his furnishing a solvent surety of Rs. 10,000/- (Rupees Ten Thousand only) and personal bond of the like amount on usual terms and on the following further conditions: (a) The applicant shall not take undue advantage of his liberty or abuse his liberty. (b) The applicant shall not try to tamper with the evidence or pressurize the prosecution witnesses or complainant in any manner. (c) He shall maintain law and order. (d) The applicant shall surrender his passport, if any, to the lower Court within a week. 10. In the meantime, the substantive sentence shall remain under suspension. Bail bond before the trial Court. Rule is made absolute. Direct service is permitted. 11. The observation herein above shall have no bearing on the case at the stage of final hearing.