ORDER : HEMANT M. PRACHCHHAK, J. 1. By way of this application under Section 389(1) of the Code of Criminal Procedure, 1973 the applicant Himanshubhai Mahendrabhai Rathod, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302 and 364(A) of the Indian Penal Code. 2. The present appeal and the application for suspension of sentence arise from the judgment dated 20.01.2022 and order of sentence passed in Sessions Case No. 25 of 2018, whereby, the applicant herein was convicted and sentenced as under: Section Imprisonment Fine In default S.302 of IPC RI for Life 10,000 SI for 6 months S.364(A) of IPC RI for Life 10,000 SI for 6 months S.201 of IPC RI for 7 Yrs 5000 SI for 3 months 3. Facts and circumstances giving rise to file appeal as well as this application are that, daughter of the complainant namely Tripadaben was knowing the applicant and was asked to meet him and when she came, the applicant took her in a car driven by co-accused. It is the case of the prosecution that, the applicant alongwith other co- accused throttled the daughter of the complainant to death, kept the dead-body in the car and they moved at various places, ultimately, they at a lonely place, they threw the dead-body. Thereafter, ransom call was given from the mobile number of the deceased Tripadaben, which was destroyed thereafter and no further phone call was given for ransom. It is the case of the prosecution that both the accused were suspected in another identical murder case, getting clue from that, the accused were interrogated, discovery panchmana was disposed, CDR was collected, charge sheet was filed and the case was committed to the Court of Sessions where the trial was conducted and at the end of the trial, the learned Sessions Court has convicted the applicant for the offences as referred above. 4. Learned advocate Mr. Nikhilesh J. Shah, appearing on behalf of the applicant while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law, as the applicant was convicted for the alleged offence only on the basis of circumstantial evidence and there was no direct evidence against the present applicant. Nikhilesh J. Shah, appearing on behalf of the applicant while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law, as the applicant was convicted for the alleged offence only on the basis of circumstantial evidence and there was no direct evidence against the present applicant. He has submitted that the applicant was falsely robed in the serious crime in question only on the ground of suspicion and there was no direct evidence against the applicant. He has further submitted that the witnesses, who were examined before the trial court, were the interested witnesses whose oral evidence was considered and believed by the trial court and therefore, on the said premises, the conviction is imposed. He has further submitted that the ingredients of Section 364(A) was not at all proved against the present applicant. He has submitted that the deceased was aged 24 years and was residing with her grand-mother at village Chanasma and was pursuing her studies at Dharnodharda and therefore, she used to travel from village Chanasma to Dharnodharda for her studies and on 13.09.2017, the complainant received a phone call asking for ransom money for relieving her daughter and thereafter, the deceased was murdered and the dead-body was thrown into a ditch near the place of occurrence. He has submitted that there was no clinching evidence brought on record by the prosecution to prove the guilt against the present applicant, however, the trial court has wrongly convicted the present applicant for the alleged crime. He has further submitted that there was a material discrepancy in the evidence considered by the trial court and there are serious lacuna in the case of the prosecution which leads to ultimate conclusion and the present applicant was falsely implicated in the heinous crime in question. He has submitted that there was no evidence with regard to last seen together as it was not established by the prosecution nor the CDR or the mobile call record of the deceased could connect the applicant with the crime in question. He has submitted that there was no evidence with regard to last seen together as it was not established by the prosecution nor the CDR or the mobile call record of the deceased could connect the applicant with the crime in question. He has further submitted that as per the CDR report, there were phone calls of others also after the applicant having given a call and therefore, this is a fit case to exercise powers under Section 389 of Cr.P.C. for suspension of sentence imposed upon the applicant as the applicant is a young boy and he is languishing in jail since long. He has also further submitted that neither the cause of death was established nor the identification of the dead-body was established and only on the basis of DNA test, the dead- body of the deceased was identified, which is a weak piece of evidence not corroborated by other cogent and material evidence and thus, under such circumstances, none of the ingredients of Section 302 read with Section 364(A) of the IPC are satisfied against the present applicant. Learned advocate Mr.Shah has urged that there is no possibility of appeal being taken up for hearing in immediate near future, and therefore, the Court may exercise its discretion by passing order of suspension of sentence and grant of bail to the applicant. 5. On the other hand, Mr. Jay Mehta, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction passed by the trial Court and submitted that the applicant is convicted for a very serious and heinous crime in question. He has submitted that a 24 year old girl was lured by the present applicant and under the guise, the applicant first called the deceased on the high-way on Chanasma and from there, he took her in a car, which was driven by the co-accused and in mid-way, the applicant had committed murder of the deceased by strangling her in the car and thereafter, thrown away the body of the deceased in a ditch and even the dead-body was found in a decomposed condition, which was identified only through DNA test because major portion of the dead-body was completely ruined. He has also submitted that in the similar modus operandi, the present applicant is involved in the offence punishable under Section 302 read with Section 364(A) of the IPC, wherein, due to lack of evidence, the applicant was acquitted from the charges and in the same modus opernadi, the applicant has committed the present offence of kidnapping and murder with an intention to get ransom money from the father of the deceased. He has submitted that there was enough material found against the applicant which was produced before the trial court and the prosecution was able to establish the case against the present applicant alongwith other co-accused beyond reasonable doubt and therefore, after considering all these aspects, the trial court has rightly convicted the present applicant for the alleged offence. He has further submitted that though the applicant has completed 7 years in jail, however, the date of conviction is 20.01.2022 i.e. post conviction, he has completed only 3 years in jail and he is also having past history. Therefore, learned APP Mr.Mehta has urged that, considering the gravity of offence and societal interest, this is not a case to exercise discretion in favour of the applicant accused. 6. Having regard to the facts and circumstances of the case, the issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence? 7. We have carefully examined the case records and considered the submissions made at the bar. After going through the details, the contentions raised by the learned advocate Mr.Shah cannot be gone into at the time of considering an application under Section 389 of Cr.P.C. for suspension of sentence and granting bail. So far as the object of detention during the trial or post conviction, the practice of non- releasing the accused on bail where imprisonment for life for a serious and heinous crime and appeal not likely to be heard in near future is concerned, this is not a fit case where powers under Section 389 to be exercised only on the ground that the case is rest upon circumstantial evidence. It is pertinent to note herein that the applicant is convicted recently in 2022 and the past conduct of the applicant is also one of the important factor that he was involved in the similar case and under similar modus operandi, the applicant is involved in the present offence of murder and asking ransom money for kidnapping and abducting. So far as the contentions raised by the learned advocate Mr.Shah are concerned, it cannot be gone into at the time of considering an application for suspension of sentence, all theses aspects will have to be gone into at the time of final hearing of the appeal filed by the applicant. Upon cursory scanning of the evidence on record, we are of the opinion that the applicant has not made out any case for suspension of sentence. The Hon’ble Apex Court has laid down criteria and factum and also held and observed that Section 389 of Cr.P.C. deals with suspension of execution of sentence pending the appeal and release the applicant on bail. There is a difference between bail and suspension of sentence; one of the essential ingredient of Section 389 is the requirement for the appellate court to record reasons in writing, order that the execution of the sentence or order appealed against be suspended and herein the present case, the charge was proved against the present applicant for a very serious and heinous crime and the applicant was found guilty for the alleged offence after a full fledged trial and therefore, he cannot be said to be an innocent person until the final decision is recorded by the appellate court in his favour. The Hon’ble Apex Court in case of Vijay Kumar vs. Narendra and Others, reported in [2002] 9 SCC 364 has held that in cases involving conviction under Section 302 of IPC, only in circumstantial cases that the benefit of suspension of sentence can be granted, but, herein the present case, the applicant has not made out any circumstantial case for releasing him on bail during the pendency of the appeal while exercising powers under Section 389 of Cr.P.C. The factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and the desirability of releasing the accused on bail after the accused has been convicted for committing the serious offence of murder are to be looked into and herein the present case, all these factors are against the present applicant. 8. In such circumstances, we are not inclined to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence. Resultantly, the present application fails and is hereby dismissed. Rule is discharged. 9. It is open for the applicant to revive his request for suspension of sentence after completion of period of 10 years of sentence.