ORDER : P. M. RAVAL, J. 1. The original accused No.1, Chhhaganbhai Malsingbhai Rathwa, who has been convicted for offence punishable under Section 302 of IPC for life imprisonment and fine of Rs.25,000/-, in default 6 months SI and also convicted for offence punishable under Section 201 of IPC for 7 years RI and fine of Rs.15,000/-, in default, 3 months SI and also convicted for the offence under section 120(B) of the IPC for 6 months RI and fine of Rs.5,000/-, in default 3 months SI and for offence punishable under Section 452 of IPC 7 years RI and fine of Rs.5,000/-, in default for 3 months SI, is before this Court against the judgment and order of conviction by way of present appeal and has also preferred an application for suspension of sentence pending the appeal. 2. Brief facts of the prosecution is as under:- 2.1 On 26/11/2018 at around 7:00 PM where the deceased Reshliben along with her Niece Sunita Ramesh Rathwa were sleeping in her home at village Bhorda and at night, the present applicant with 2 other persons Kamlesh Rathwa and Mukesh Rathwa with preplanned intention and planning break-in the house of the deceased illegally from the ventilation present at the backside of the house of the complainant and they cut off the head of the deceased Reshliben with some sharp weapon and also made some injury on the fingers of both the hands. Subsequently, the deceased died spontaneously and they took the head of the deceased with them and buried the head of the deceased at some place. 2.2 That when the informant was at his home, where he received a call from Raisinghbhai Tersinghbhai Rathwa who is son of his father's sister i.e deceased Reshliben where he stated that "Someone has cut off my mother's head and taken it away with him and that he was informed about this incident by Bhersingbhai Runiyabhai Rathwa of village Bhorda who called him on his phone. Subsequently he told the complainant to visit his home" Hence, the complainant along with his uncle's son Kalubhai Sukhliyabhai and Bhuvanbhai Guliyabhai went to the deceased home where they saw that near bed someone with some sharp weapon has cut off the head of the deceased Reshliben and there were blood stains on her whole body and they also saw injury on the fingers of both the hands and took the head of the deceased with them. When the said incident happened, the niece of the deceased Sunita Ramesh Rathwa was also sleeping besides the deceased, she informed the informant that the killers also threatened to kill her. Hence the complaint was lodged before the Rangpur Police Station. 3. Therefore, on 26/11/2018 the FIR was registered at Rangpur Police Station vide C.R. No. 1-51 of 2018 for the offences punishable u/s. 302, 201, 120(B), 452, 506(2) read with section 114 of IPC. 4. The investigation proceeded and the Investigating Officer filed a charge-sheet against the applicant and other accused before the learned CJM, Chhota Udepur for the offences punishable u/s. 302, 201, 120(B), 452, 506(2) read with Section 114 of IPC on 16/02/2019, which came to be registered as Criminal Case No. 235 of 2019. As the case was exclusively triable by the Sessions Court, the Ld. CJM committed the case before the Sessions Court as per the provisions of Section 209 of Cr.P.C. 5. The aforesaid case came to be registered as Sessions Case No. 19 of 2019 and it came to be transferred to the Ld. Sessions Judge, Chhota Udepur for trial. The charge was framed against the appellant and another accused for the offences punishable u/s. 302, 201, 120(B), 452, 506(2) read with 114 of IPC. Thereafter the prosecution examined 17 witnesses and relied upon 47 documentary evidences. 6. Thereafter, arguments were heard and the judgment and order below Exh. 100 was passed, convicting the applicant for the offences punishable under Sections 302 , 201, 120(B) and 452 of the INDIAN PENAL CODE , 1860. 7. Learned advocate Mr.Darshan Dave for the original – accused would submit that : (a) That out of 3 accused persons, 2 accused have been acquitted i.e. Mukeshbhai and Kamleshbhai. 100 was passed, convicting the applicant for the offences punishable under Sections 302 , 201, 120(B) and 452 of the INDIAN PENAL CODE , 1860. 7. Learned advocate Mr.Darshan Dave for the original – accused would submit that : (a) That out of 3 accused persons, 2 accused have been acquitted i.e. Mukeshbhai and Kamleshbhai. However, on the same set of evidence, the present applicant Chhaganbhai is convicted and has thus it is argued that the benefit of doubt extended to the other co-accused ought to have been extended to the present applicant. (b) That the deposition of the sole child eye-witness does not repose confidence. (c) That there is no other corroborative independent piece of evidence supporting the case of the prosecution and under such circumstances, the applicant ought to have been acquitted. (d) That the so-called child eye-witness has not named any accused persons but has identified all the accused persons before the trial Court for the first time which create serious doubts in the veracity of the said witness and that it would be clear from the deposition of the child eye-witness that she had identified the present accused at the instance of the Police. (e) That the panchnama of discovery of the weapons as well as the head of the deceased is not proved in accordance with law and reliance on such evidence by the trial Court is erroneous both on facts as well as on law. (f) That there is no justification sending the muddamal to the FSL at belated stage which create serious doubts, the benefit of which should tilt in favour of the applicant. Thus, it is argued that the present application be allowed. 8. Per contra, Mr.L.B.Dabhi would submit that apart from the manner in which child eye-witness Sunita, there are other evidences against the present applicant in the nature of discovery of weapons, discovery of the head of the deceased and identification by the eye-witness before the trial Court clearly implicates the complicity of the present applicant in the alleged crime of murdering coupled with the fact that the trial Court has given detailed reasons by appreciating both oral as well as documentary evidences and applicant having failed to point out palpable error on the face of the judgment, the present application deserves to be rejected. 9. 9. Heard learned advocates for the respective parties and also gone through the charges levelled against the present applicant accused. 10. The issue arises as to whether the applicant has made out a case for suspension of sentence or not? 11. We have carefully considered the submissions made by the both the sides. We have also perused the impugned judgement and order. 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) 1. "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." 12. 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 transpires that the trial Court at page 19, para 20 of the impugned judgment has recorded the deposition of the so-called eye-witness (child eye-witness). The learned Judge at page 20 has recorded that who had killed her maternal aunt is not known to her that she could not identified the assailants. However, she identifies all the three accused shown to her through CCTV camera, however, she does not know the name of any of the accused. The learned Judge at page 20 has recorded that who had killed her maternal aunt is not known to her that she could not identified the assailants. However, she identifies all the three accused shown to her through CCTV camera, however, she does not know the name of any of the accused. The learned Judge has also recorded that in the cross-examination of the said witness admitting that she has seen the accused through video conference, for the first time, she also accepted the fact that she has identified the accused persons at the instance of the police however immediately, she denies. Thus, it transpires that the deposition of child eye-witness is very shaky. The learned Sessions Judge has also recorded the finding with regard to the discovery of panchnama within the scope of Section 27 of the Indian EVIDENCE ACT , in para 30, page 29. However, it transpires that the requirement of proving the said panchnama in accordance with law is not fulfilled because what has been stated by the panch, Rasoolbhai has recorded in para 30 is that accused Chhaganbhai on showing some place in the river such place was digged from where the head of the deceased was found. However, it transpires that the requirement in accordance with law is not fulfilled. Without discussing the merits and demerits of the case which will prejudice the case of the either side and also considering the fact that accused has also undergone 6 years, 8 months and 2 days incarceration as on today and we see know fair chances of appeal being taken up in the near future for final hearing and more particularly, when the other co-accused have been acquitted on the same set of evidence, we deem it fit that the sentence be suspended pending appeal. 13. Under the circumstances, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicant 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 and shall not be considered as an expression of any final opinion as regards the guilt or innocence of the accused. 14. Accordingly, present application is allowed. 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 and shall not be considered as an expression of any final opinion as regards the guilt or innocence of the accused. 14. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 22.9.2022 by the learned Sessions Judge, Chhotaudepur in Sessions Case No.16 of 2019 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. 15. Rule made absolute to the aforesaid extent. Direct service is permitted.