ORDER : ILESH J. VORA, J. 1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith. 2. By way of this application under Section 430(1) of BNSS, 2023, the applicant Roshanben Altafhussain Notiyar, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 120B and 114 of the Indian Penal Code. 3. The present appeal and the application for suspension of sentence arise from the judgment dated20.03.2020 and order of sentence passed in Sessions Case No. 67 of 2016, whereby, the applicant herein was convicted and sentenced as under: Section Imprisonment Fine In default S.302 of IPC RI for Life 10000 SI for 1 month 4. Facts and circumstances giving rise to file appeal as well as this application are that the accused Roshan Altaf is the second wife of Altaf Notiyar. The deceased Zahir aged about 7 years was born out from the earlier wedlock allegedly performed with Rehana, who died due to cancer. According to case of the prosecution, on 06.09.2006 at about 8.15 pm, the accused Altaf and present applicant accused Rehana, beaten Zahir and threw him down the floor at the home and thereafter, the applicant accused sat on Zahir’s stomach and hold both his hands, meanwhile, the accused Altaf took a pillow and pressed it on the face of the deceased till he died and thereafter he went to his work, whereas, the applicant accused remained at the house. On the same day, the deceased was taken to company’s hospital, where he was treated by PW-11 Dr. Mihir and at relevant time, he was conscious and after giving treatment to him, he was discharged and thereafter, on 07.09.2006, at about 1.37 pm the staff nurse called Dr. Mihir that the child Zahir find difficulty in breathing and he was brought in ambulance. The deceased child thereafter died. The Postmortem was done by PW-12 and according to opinion of the panel doctor, the child died as a result of asphyxiation due to smothering. In these background facts, the prosecution was lodged against the father and mother of the child. The deceased child thereafter died. The Postmortem was done by PW-12 and according to opinion of the panel doctor, the child died as a result of asphyxiation due to smothering. In these background facts, the prosecution was lodged against the father and mother of the child. During the investigation, the confessional statement in the form of discovery in terms of Section 27 of the Evidence Act being made before the police and accused Altaf confessed his guilt and described the manner in which the child was killed by him along with his wife. At the end of investigation, the chargesheet came to be filed and accused were put on trial. The entire case rests on the circumstantial evidence. The Court below after appreciation of the evidence, convicted the wife Rehana applicant for the murder of child and acquitted the husband Altaf by giving benefit of doubt to him. The conviction rendered to the applicant Rehana principle based on the non-explanation, by the Rehana with regard to the injuries sustained by the deceased. The court below has observed against the applicant accused that she was at home with the deceased and she was having knowledge about the injuries sustained by the deceased and therefore, with the aid of Section 106 of the Evidence Act, the court has presumed that the deceased was the author of the murder. 5. We have heard learned Senior counsel Mr. I.H. Syed assisted by Mr. Amaan Syed and Mr. Jay Mehta, learned Additional Public Prosecutor for the respondent State. 6. Mr. I.H. Syed, learned senior counsel assailing the impugned judgment of conviction and order of sentence, submits that, the court below with the aid of Section 106 of the Evidence Act, held guilty the accused for the murder of child. According to prosecution case, in a first attempt to commit murder, the accused Rehana and her husband beaten up the child and with took the pillow and smothered the face of the deceased, as a result of which, she sustained a fatal injuries and thereafter, deceased was taken to the hospital, where he was alive and after 3 to 4 hours, on the basis of phone call made by the hospital nurse to the treating doctor, deceased brought in an ambulance for further treatment and then he was declared dead. In these background facts, it is submitted that, the accused Altaf has been given benefit of doubt however while convicting the applicant accused Rehana, the Court failed to appreciate the evidence adduced are common against both the accused and therefore, on the same set of evidence the court cannot convict one accused and acquit the other. Therefore, court cannot make distinction between the two accused which will amount to discrimination. The second limb of argument challenging the findings of conviction is that, the motive behind the murder has not been proved and when case rest on the circumstantial evidence, it is the duty of the prosecution to prove the motive and in the facts of present case, said link is missing. The last argument on the law point, is that, the General Rule in a criminal case is that, the burden of proof is on the prosecution and unless the foundational facts proved by the prosecution, the Section 106 of the Evidence Act will not come into picture. In the facts of the present case, the foundational fact proving the complicity of the applicant has not been proved and therefore, the conviction with the aid of Section 106 of the Evidence Act is not sustainable in law. 7. In the circumstances as referred above, learned senior counsel would urge that the applicant lady accused has undergone 8 years and more of her jail term and despite of order of this Court, the appeal has not been listed for final hearing and it will take further time. Thus, considering the contentions as referred above, he would urge that there are chances of succeeding in appeal and considering the period of incarceration the prayer as prayed for may be considered. 8. On the other hand, opposing the contentions, learned Additional Public Prosecutor Mr. Jay Mehta would urge that, the issue canvassed herein cannot be examined at this stage, as it is a subject matter of appreciation of evidence. He would further urge that, instead of granting bail, court may fix the final hearing of the appeal. 9. Having regard to the facts and circumstances of the present case, the issue for our consideration, is to whether case is made out for suspension of sentence and grant of bail? 10. We have carefully examined the records as well as the findings recorded by the court below. 9. Having regard to the facts and circumstances of the present case, the issue for our consideration, is to whether case is made out for suspension of sentence and grant of bail? 10. We have carefully examined the records as well as the findings recorded by the court below. We find merits in the submissions advanced by the applicant accused herein. The husband Altaf despite of his presence at the scene of occurrence, has been acquitted. The evidence against the accused are common and similar. The other aspect required to be considered is the applicability of Section 106 of the Evidence Act. The Section deals with the burden of proving the fact within the special knowledge of particular person. The Supreme Court time and again held and observed that, Section 106 is certainly not intended to relieved the burden of prosecution to prove the case against the accused. Therefore, when the foundational facts being proved, then certainly burden shift to the accused to explain the incriminating circumstances. The Court below straightway without much discussions with the aid of Section 106 only convicted the applicant accused. 11. For the reasons aforementioned and discussions, we are of the view that it is difficult to fix the appeal for final hearing because of pendency of old appeals and considering the long incarceration and the point raised hereinabove, we are persuaded to to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence. 12. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 20.03.2020 by the learned Additional Sessions Judge, Kachchh, in Sessions Case No. 67 of 2016 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.10,000/- with one surety of the like amount to the satisfaction of the trial Court subject to condition that he will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not change his address and in case of change in address, shall inform to the concerned police station as well as to this Court. Direct service permitted.