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. We have heard Mr.Mehul Sarad Shah, learned advocate and Ms. C.M. Shah, learned APP for the respective parties. 3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant-Bharatbhai @ Appa Alubhai Rachhad, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 307, 326, 325, 324, 427, 341, 147, 148, 149 the Indian Penal Code. 4. The present appeal and the application for suspension of sentence arise from the judgment dated 27.07.2021 and order of sentence passed in Sessions Case Nos. 91 of 2018 and 4 of 2019, whereby, the applicant herein was convicted and sentenced as under: Section Imprisonment Fine In default S.302 of IPC Life imprisonment Rs. 25,000/- Imprisonment for 2 months S.307 of IPC R.I. for 10 years Rs. 20,000/- Imprisonment for 30 days S.326 of IPC R.I. for 7 years Rs. 7,000 Imprisonment for 20 days S.325 of IPC R.I. for 5 years Rs. 5,000/- Imprisonment for 15 days S.324 of IPC R.I. for 3 years Rs. 3,000/- Imprisonment for 7 days S.427 of IPC S.I. for 1 year S.341 of IPC S.I. for 1 month S.147 read with S.149 of IPC S.I. for 1 year S.148 read with S.149 of IPC S.I. for 2 years 5. Facts and circumstances giving rise to file present application are that on the date of incident i.e. 18.05.2018, between 12:00 to 12:30 in night hours, seven accused armed with deadly weapons like swords, skype (dhariya), knife, iron rod, formed unlawful assembly and laid an indiscriminate assault on the deceased Karshan Satiya and complainant PW:8 Ajay Makwana. The case in details are that on 18.05.2018, at about 12:00 o’clock in night, the deceased Karshanbhai along with his friend complainant PW:8 Ajay Makwana had proceeded to take dinner. They were in Alto Car allegedly, driven by deceased. When they reached near Chakku Talavadi, Gogha Road, Bhavnagar, the accused Bharat Ahir (present applicant), Siddhraj, Champu Ahir, Keval Ahir, Kishan Solanki, Hardik and Satish were standing in the road with their respective vehicles. When car arrived, the accused broken the windscreen of the car and took out the deceased from the car. When they reached near Chakku Talavadi, Gogha Road, Bhavnagar, the accused Bharat Ahir (present applicant), Siddhraj, Champu Ahir, Keval Ahir, Kishan Solanki, Hardik and Satish were standing in the road with their respective vehicles. When car arrived, the accused broken the windscreen of the car and took out the deceased from the car. The accused Bharat Ahir and Siddhraj armed with swords inflicted blows on the body of the deceased and when the complainant PW:9 Ajay Makwana came to rescue the deceased, he was severely assaulted by the accused with the swords. The accused Champu Ahir and others having deadly weapons like skype, knives and iron pipes, assaulted the deceased on the various parts of his body and thereafter, due to hue and cry, they ran away with their respective weapons. PW:10 Sajan Chauhla being a resident of nearby area was standing nearby the place of incident and after hearing the shouting, he went to the place and had saw the incident. The brother of the deceased came to know about the incident and he was rushed to the place of the incident. The deceased was taken to Government Hospital, Bhavnagar then shifted to private clinic for twice and then, lastly, he was at Ahmedabad Civil Hospital and succumbed to injuries, on 01.08.2018. In the aforesaid background facts, the offence of murder was added with the permission of the Court. After registration of the offence, the investigation was proceeded. The applicant accused and others had been arrested. The persons who were not known to the eyewitnesses, the T.I. Parade of the said accused held by the Executive Magistrate. The weapons discovered and recovered at the instance of the accused. The I.O. collected the medical treatment case papers of the deceased as well as the complainant PW:8. He also recorded the statements of the witnesses. The motive behind the murder was the dispute with the accused Kishan Solanki. In such circumstances, the I.O. laid a chargesheet before the Judicial Magistrate and the same was committed to the Court of Sessions, Bhavnagar. In order to prove the charges, the prosecution has examined as many as 21 witnesses and exhibited 67 documents. The learned Sessions Court, relying upon the testimony of eyewitness PW:10, medical evidence and corroborative evidence of FSL came to a conclusion that the injuries caused by the accused were being done with the intention to kill the deceased. In order to prove the charges, the prosecution has examined as many as 21 witnesses and exhibited 67 documents. The learned Sessions Court, relying upon the testimony of eyewitness PW:10, medical evidence and corroborative evidence of FSL came to a conclusion that the injuries caused by the accused were being done with the intention to kill the deceased. The 7 accused have been convicted and sentenced for the murder of the deceased, as enumerated above. 6. Learned advocate Mr. Mehul Sarad Shah, appearing on behalf of the applicant - accused while praying for suspension of sentence, made following contentions: (a) That the eyewitness PW:10 Sajan Chauhla is a chance witness. According to the prosecution case, the witness at the relevant time was doing his job as rickshaw driver and his scheduled to drive the rickshaw was upto 09:30 p.m. His presence at the spot is doubtful as after seeing the incident, he did not lodge an FIR at the hospital and on the next day, his statement was recorded. Thus, in absence of any corroboration to the evidence of PW:10, his evidence cannot be said to be wholly reliable. (b) That the injured complainant PW:8 Ajay Makwana despite having sustained a grievous injuries did not support to the case of the prosecution and has been declared hostile. (c) That the incident took place on 18.05.2018, and after long treatment, the deceased died 01.08.2018. Despite of the opportunity to record the statement of the deceased, no any statement was recorded by the I.O., which itself creates a doubt on the case of the prosecution. (d) That the deceased was treated by numerous doctors at different hospitals and most of the injuries had been healed but the infection developed in the body of the deceased and on account of septicemia, death was occurred. Thus, the cause of death is not directly attributed to the act of the accused. 7. In the aforementioned facts and circumstances, Mr.Shah would urge that the co-accused Keval Vaghosi and Hardik Sonraj already enlarged on bail and their sentence has been suspended and therefore, on the principle of parity, the applicant may be extended the benefit of bail. Thus, the cause of death is not directly attributed to the act of the accused. 7. In the aforementioned facts and circumstances, Mr.Shah would urge that the co-accused Keval Vaghosi and Hardik Sonraj already enlarged on bail and their sentence has been suspended and therefore, on the principle of parity, the applicant may be extended the benefit of bail. The applicant accused has already undergone 5 years of his jail term and there are all chances of succeeding in appeal and when there are no chances of appeal being heard in near future, it would injustice to the accused to keep him in jail for a long time. 8. Alternatively, it has been urged by learned counsel Mr.Shah that when the cause of death is not directly associated with the act of the accused and considering the medical evidence on record, it reveals that the injuries sustained by the deceased developed certain complication and eventually, it resulted in death. Thus, the accused could not have been convicted under Section 302 of the IPC and maximum the case can be travelled upto the limits of offences under Section 304 of the IPC and as on today, the accused has completed 5 years of his jail term. 9. In the circumstances, as referred above, learned counsel Mr.Shah prays that the case is made out for exercising judicial discretion and prayer as prayed for may be allowed. 10. On the other hand, Ms. C.M. Shah, learned APP opposing the contentions, has submitted that the learned Court-below while convicting the applicant and others, has anaylised the entire evidence adduced by the prosecution and assigned sound reason for the conclusion arrived at for the guilt of the accused. She would further urge that the reliability of the witnesses as referred cannot be examined at this stage as it is the subject matter of final hearing of the appeal. It is submitted that the deceased was mercilessly assaulted by the accused and considering the number of injuries, as referred by the doctors, the cause of death is directly associated with the act of the accused and others. The claim of parity is not applicable to the case of the applicant as the role of the applicant cannot be equated at par with the co-accused. The claim of parity is not applicable to the case of the applicant as the role of the applicant cannot be equated at par with the co-accused. Lastly, it has been urged that the applicant failed to point out from the impugned judgment that the conviction may not be sustainable. In such circumstances, it is prayed that no any exceptional case is made out and therefore, the application may not be entertained. 11. Having regard to the facts and circumstances of the case, the issue arises for our consideration as to whether the applicant has made out a case for suspension of sentence? 12. We have carefully examined the case records and considered the submissions made at the bar. 13. It is settled legal position of law that while examining the prayer of sentence, the Appellate Court has to consider the seriousness of the offence, nature of accusation made against the accused, the manner in which a crime is alleged to have been committed.The Supreme Court in its various judgments held and observed that when the accused convicted for the serious offence, and he has been found guilty, then initial presumption of innocence in his favour is no more available to him and suspension can be granted in exceptional circumstances, when reason exists to suspend the sentence. Recently, Supreme Court while considering the scope of Section 389(1) of the Cr.P.C. in the case of Omprakash Sahani Vs. Jayshankar Chaudhary, (2023) 6 SCC 123 , after referring the earlier all decisions on this aspect, observed and held that, while dealing with the case of suspension of sentence and grant of bail, the appellate Court before allowing the prayer, should prima-facie come to a conclusion that, the conviction may not be sustainable. Para-33 is relevant to refer and same is reproduced hereunder: “Para-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 above said 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 take 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 of the CrPC and try to pick up few lacuna or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 14. In the case on hand, the injured complainant Ajay Makwana PW:8 did not have supported the case of the prosecution. The eyewitness PW:10 Sajan Chauhla in his deposition had narrated the entire incident and how the deceased was brutally murdered with the deadly weapon. 15. So far as applicant Bharat @ Aapa Rachhad is concerned, according to version of eyewitness, he was armed with sword and inflicted blows on the body of the deceased as well as the complainant PW:8. After the incident, the deceased was taken to the governmetn hospital, where he was treasted and examined by Dr.Sarika Jain (PW:14) Government Hospital. She noticed the body of the deceased the following injuries: “1. Incise wound on the front of the head, measuring 8 inches × 1 cm. The brain was visible due to the bone fracture. 2. The thumb of the right hand was completely cut off from the root below. 3. There were 3 stab injuries on the left side of the chest and one injury was on the left side of the waist, measuring 2.5 cm × 1 cm × 4 cm. The inner one was fractured to the peritoneum. The three wounds in the chest, measuring 1.5 × 1 cm × the bone fractured to the mid-axillary line. 3. There were 3 stab injuries on the left side of the chest and one injury was on the left side of the waist, measuring 2.5 cm × 1 cm × 4 cm. The inner one was fractured to the peritoneum. The three wounds in the chest, measuring 1.5 × 1 cm × the bone fractured to the mid-axillary line. The second wound was 1.5 to 2 cm × 1 cm × bone-deep in the anterior chest area up to the anterior axillary line. 4. A 3× 2 cm wound was found in the right side of the neck area up to the inner part. In the opinion of Dr.Sarika, the injuries could have been caused by a hard, blunt and sharp weapon and were serious in nature. 16 We deem it fit to refer the evidence of Dr.Vitthal Rangrajan (PW:15), who being a neurosurgeon, had examined the deceased and while giving treatment to him, he noticed the following injuries on the body of the deceased: “1. Numerous bruises on the chest and abdomen and there was sutured wound between palm of the right hand and the elbow. 2. 7 × 1 cm. The wound was on the left shoulder. 3. The puncture wound was on the left side of the waist measuring 2.5 × 2 cm. 4. There was a 2 x 0.5 cm. Avulsion injury (in a hanging position) on the thumb of the left hand. 5. A 15 cm. Sutched wound was on the upper part of the forehead. 6. A 7 cm. Sutched wound was a standing wound in the middle of the head. 7. There was a rash below the elbow of the right hand. 8. A 10 cm. Stitched wound was behind the left ear. 9. The thumb of the right hand was hanging. 10. Stitched wound on the left side of the chest in diameter of 1/3 cm. 11. Tube was inserted in the chest between the fourth and fifth ribs. 12. There was an extradural hemorrhage found in the both frontal regions along with subdural hemorrhage and contusions found in both frontal regions with a fractures of nasal bones. 13. 10. Stitched wound on the left side of the chest in diameter of 1/3 cm. 11. Tube was inserted in the chest between the fourth and fifth ribs. 12. There was an extradural hemorrhage found in the both frontal regions along with subdural hemorrhage and contusions found in both frontal regions with a fractures of nasal bones. 13. Open wound between the chest and abdomen on the left side reaching upto the ribs.” According to the opinion of the doctor, the injuries were serious in nature and likely to cause death and could be possible by sharp cutting instrument and the same were likely to cause death. 17. Deceased was operated in the Civil Hospital, Ahmedabad and the doctor who had performed operation was examined by the prosecution. Dr.Harisinh Parmar (PW:19) had stated that there was infection in the brain of the deceased and operation to extract the water from the brain conducted by him on 03.07.2018 and thereafter, another operation on 17.07.2018 was done by him and thereafter, the position of the deceased was become deteriorated and was put on ventilator on 26.07.2018 and succumbed to injuries on01.08.2018. 18. Lastly, Dr. S.K. Jhaveri, (PW:18) who had conducted the postmorterm the body of the deceased, noticed the 13 injuries on the body of the deceased and correspondence internal injuries and the cause of death was cardio-respiratory failure due to multiple injuries. 19. So far as medical evidence is concerned, there is no contradiction with the ocular version with the PW:10, the eyewitness of the incident. The reliability of his evidence cannot be examined at this stage and therefore, the submission that his evidence could not have been relied by the Trial Court, has no merits. The second submission relates to the cause of death. None of the doctors as referred above have stated in clear terms that the primary cause of death was due to the septicemia. On the contrary, their opinion to the effect that the death was due to injuries caused to the deceased. In such circumstances, we are not impressed by the submissions that the septicemia is the primary cause and death was not due to the injuries caused to the deceased. The third contention relates to benefit of parity with the co-accused. On the contrary, their opinion to the effect that the death was due to injuries caused to the deceased. In such circumstances, we are not impressed by the submissions that the septicemia is the primary cause and death was not due to the injuries caused to the deceased. The third contention relates to benefit of parity with the co-accused. The principle of parity with the co-accused cannot be extended as considering the role attributed to the present applicant herein, his case cannot be equated at par with the co-accused. It has been forcefully submitted that, no any statement of the deceased during his life time was recorded. On this issue, the evidence shows that, the Executive Magistrate and police authorities tried their level best to record the statement but due to unconsciousness of the deceased, it could not be recorded. The court below has also dealt with the said issue and assigned reasons based on the evidence. The last submission was that, considering the injuries sustained by the deceased, there was no intention to cause death and injuries were not sufficient to cause death in ordinary course of nature, therefore, case would govern under exception to Section 300 of the IPC. The submission of extending the benefit of exception at this stage cannot be examined, as the entire evidence including the medical evidence and other circumstances would require to be examined in depth and again it would be a domain of appreciation of evidence. 20. For the reasons recorded, and on careful examination of the findings of conviction, we do not find any fault with the findings and conviction, so as to arrive at the prima-facie conclusion that the conviction is not sustainable in law. Therefore, having regard to the nature of offence and manner in which, the crime alleged to have been committed, no any exceptional ground exists for exercising judicial discretion in granting prayer of suspension of sentence and grant of bail. 21. Accordingly, present application is dismissed . Rule is discharged. The observations made hereinabove, are tentative and prima facie in nature and confined to the adjudication of this application.