JUDGMENT : P. M. RAVAL, J. 1. Rule. Learned APP Mr.Pranav Dhagat waives service of notice of Rule on behalf of respondent State. 2. By way of this application under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 , the applicant – original accused seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 10.01.2019 by the learned Sessions Judge, Surat in Sessions Case No. 373/2013. 3. By the aforesaid judgment and order of conviction and sentence, the present applicant convict has been held guilty for the commission of offences as stated hereinbelow : Section Imprisonment Fine in Rs. In default of payment of ?ne. 302 of IPC RI for life 5000/- SI for 6 months 364-A of IPC RI for life 5000/- SI for 6 months 363 of IPC RI for ?ve years 2,000/- SI for two years 305 of IPC SI for three years 2,000/- SI for two months 4. Learned advocate Mr.Ashish M Dagli for the applicant – original accused would submit that:- (a) It is the case of the prosecution that on the basis of a chit alleged to have been written by the present applicant based on which the call details were calculated and it is claimed that the present applicant who had demanded the ransom amount and since, it was not fulfilled the deceased was murdered. (b) That the entire case is based on circumstantial evidence. (c) That there is no evidence of last seen together. (d) That it is the case of the prosecution that the dead body was found at the place which was known to the accused. However, the present applicant was not seen with the deceased at such place by any one. (e) That the panchnama under the provisions of Section 27 of the Indian Evidence Act is not proved in accordance with law. That on comparing with the evidence of the panchnama and discovery, the Investigation Officer differs with regard to the recovery/discovery of gunny bag. (f) That so-called recovery of the mobile from the terrace has not been identified by panchas before the Court, more particularly, they have stated that the mobile is not the same which was shown to them. (g) That identification of dead body was also not possible. Thus, whether the dead body was that of Het is not proved. (f) That so-called recovery of the mobile from the terrace has not been identified by panchas before the Court, more particularly, they have stated that the mobile is not the same which was shown to them. (g) That identification of dead body was also not possible. Thus, whether the dead body was that of Het is not proved. It is the case of the prosecution that the applicant was found moving along with the deceased and also went to the petrol pump and has also purchased paper. However, no statement to indicate that the applicant and the deceased was seen together have been recorded during the investigation. PW.9 – Gopalbhai Gordhanbhai Hirpara, is alleged to have seen the applicant along with the deceased in the car. However, the panchnama at Exh.93 has not supported the case of the prosecution and merely deposed to the effect his signature was taken. Thus, this witness is not believable. (h) It is lastly argued that there are various lacunas and missing links to rope the present applicant with the alleged crime and when such chain of circumstances are not proved, no conviction can be handed down upon the applicant and has thus, argued to allow the present application. 5. Learned APP Mr.Pranv Dhagat would submit that the learned Trial Court has given cogent and convincing reasons after appreciation of oral as well as documentary evidences on record, more particularly, the depositions of PW-9, PW-12 and PW-14 coupled with the fact that the chit, signature, demand of ransom amount and threatening to murder, the kidnapping of child is proved to have been scribed by the present applicant before the circumstantial evidence of handwriting experts coupled with the fact that each and every circumstances have been proved by the prosecution and when the applicant is convicted for an offence of murder and in absence of any prima facie error apparent on the face of the record, the present application be rejected. 6. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. 7. The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 or not? 8. We have carefully examined the case records and considered the submissions made by the both the sides. 7. The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 or not? 8. We have carefully examined the case records and considered the submissions made by the both the sides. We have also perused the impugned judgement and order and the evidences produced before the learned trial court. In a serious offence of attracting the punishment under Section 302 of IPC, the Appellate Court has to assess the record only to see as to whether there is any apparent or gross error on which this Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. In this regard, it would be profitable to refer to the decision in the case of Omprakash Sahni Vs Jai Shankar Chaudhary and Another , reported in (2023) 6 SCC 123 . It has been observed while considering the scope of Section 389 of CrPC as under : “30. In Kishori Lal v. Rupa [ Kishori Lal v. Rupa , (2004) 7 SCC 638 ), this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: (SCC PP. 639-40, paras 4-6) "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. 5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 31. In Vijay Kumar v. Narendra [ Vijay Kumar v. Narendra , (2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366 ], it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar [ Vijay Kumar v. Narendra , (2002) 9 SCC 364], it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 1PC, the court should consider the relevant factors like the nature of 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 they have been convicted for committing the serious offence of murder. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [ Vasant Tukaram Pawar v. State of Maharashtra , (2005) 5 SCC 281 ] and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 ). 33. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra [ Vasant Tukaram Pawar v. State of Maharashtra , (2005) 5 SCC 281 ] and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 ). 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach." 9. Keeping in mind the aforesaid principles, this Court has gone through the impugned judgment and order and record of the case as well as the charges levelled against the present accused. It is an undisputed fact that the entire case rests on circumstantial evidence and even a single missing link would be fatal if the chain of circumstances is not completed. Without discussing the merits and demerits of the case which would prejudice the case of the other side coupled with the fact that the DNA profile of the deceased does not match with that of the complainant. Without discussing the merits and demerits of the case which would prejudice the case of the other side coupled with the fact that the DNA profile of the deceased does not match with that of the complainant. The time of last seen together and the time when the dead body was found, that gap between these two events seems to be huge coupled with the fact that the applicant has undergone incarceration of almost 10 years and 6 months as on 25.09.2025 and there is no likelihood of appeal being heard on merits in near future. Under the circumstances, a prima facie case of suspension of sentence is made out. 10. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 10.01.2019 by the learned Sessions Judge, Surat in Sessions Case No.373 of 2013 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court subject to conditions that : (a) he shall not take undue advantage of the liberty or misuse the liberty; (b) he shall not leave India without the prior permission of the concerned Sessions Court; (c) he 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) he shall proceed with the Criminal Appeal as and when it may be listed. 11. Rule made absolute to the aforesaid extent. Direct service is permitted.