JUDGMENT : 1. The instant interlocutory application has been filed for suspension sentence in connection with judgment of conviction and sentence dated 03.02.2024 and 07.02.2024 respectively passed by the learned Additional Sessions Judge-II, Sahibganj in Session Trial Case No. 14 of 2022, arising out of Mirzachouki P.S. Case No. 15 of 2021, Whereby and whereunder the appellant has been convicted under Sections 302,201,364/34 of the Indian Penal Coade and under Section 27 of Arms Act and directed to undergo rigorous imprisonment for life and a fine of Rs.50,000/- for the offence under Section 302/34 of I.P.C and in default of fine further S.I. for one year, further directed to undergo R.I. for 10 years and a fine of Rs.20,000/- for the offence under Section 364/34 of I.P.C. and in default of fine further S.I. for 6 months. The appellant has been further directed to undergo R.I. for 7 years and a fine of Rs.10,000/- and in default of fine further S.I. for 6 months for the offence under Section 201/34 of I.P.C. and R.I. for 10 years and a fine of Rs.10,000/- and in default of fine further S.I. for 6 months for the offence under Section 27 of Arms Act. Submission of the learned counsel for the appellant: 2. The learned counsel appearing for the appellant has submitted that it is a fit case where the sentence may be suspended, since, there is no eyewitness of the occurrence rather only on the basis of the so-called confessional statement of the applicant/appellant the recovery of 315 bore katta has been shown to be made from the place of occurrence and based upon that the conviction has been made. 3. It has been contended that the said recovery was not on the basis of the first confessional statement of the appellant rather when on the basis of the first confessional statement the said pistol had not recovered then again, the second confessional statement was recorded and based upon that the said katta .315 bore has been shown to be recovered. 4. It has been contended that before the recovery of the .315 bore country made pistol (katta) which was shown to be recovered on the basis of the confessional statement of the present applicant/appellant, the dead body of deceased has already been recovered on the basis of the confession made by co-convicted namely Kulesh Rajjak. 4. It has been contended that before the recovery of the .315 bore country made pistol (katta) which was shown to be recovered on the basis of the confessional statement of the present applicant/appellant, the dead body of deceased has already been recovered on the basis of the confession made by co-convicted namely Kulesh Rajjak. The contention, therefore, has been raised that since the dead body of deceased has already been recovered and as such the recovery of pistol cannot said to be based upon the confessional statement of the appellant. The ground, therefore, has been agitated that the said confessional statement, cannot be said to be leading of the recovery of alleged pistol. 5. It has further been contended that the evidence of the prosecution both oral or documentary are not sufficient enough to prove the case against the accused persons beyond all reasonable doubts since chain of evidence is not well-established reason being that the Prosecution has tried to prove the chain of circumstances on the basis of call detailed report, which is also not absolutely corroborative evidence as per the law. 6. Learned counsel has submitted that the other co-convicts, namely, Deepika Devi @ Deepika Mishra, Sonu Kumar Yadav, Etwari Mandal and Sandeep Pal have been allowed to be released from judicial custody after suspension of sentence vide order dated 29.07.2024 and 28.10.2024 passed in Cr. Appeal (DB) No. 234 of 2024 and analogous cases and in Cr. Appeal (DB) 1116 of 2024 respectively. It has been submitted that however the prayer of suspension of sentence so made by Kulesh Rajjak, the appellant of Cr. Appeal (D.B.) No. 458 of 2024 has been dismissed by the co-ordinate Bench of this Court. 7. Learned counsel further submitted that case of the present applicant/appellant is identical to the case of the co-convicts particularly Sandeep Pal and as such the present appellant is also eligible for the suspension of sentence during pendency of the instant appeal. 8. The learned Counsel appearing for the appellant based upon the aforesaid ground has submitted that it is fit case where the sentence may be suspended. Submission of the learned counsels for the state and informant: 9. While on the other hand, learned Special Public Prosecutor Mr. Bhola Nath Ojha appearing for the State and the learned counsels for the informant Mr. Kundan Kr. Mishra along with learned counsel Mr. Submission of the learned counsels for the state and informant: 9. While on the other hand, learned Special Public Prosecutor Mr. Bhola Nath Ojha appearing for the State and the learned counsels for the informant Mr. Kundan Kr. Mishra along with learned counsel Mr. Binay Kumar Tiwary has jointly submitted that it is not a fit case where the sentence has to be suspended. 10. It has been contended that it is a case where the conviction has been based upon the the implication of Section 10, Section 27 and Section 30 of the Indian Evidence Act and it is incorrect on the part of the learned counsel for the applicant/appellant that the case of the present applicant/ appellant is identically placed to the case of the co-convict reason being that against the said co-convict no specific overt act said to be there, as such law of parity will not be applicable herein. 11. It has been contended that the present applicant/appellant along with Kulesh Rajjak have been found to be in closed contact over the telephonic conversation and the said fact has been corroborated the testimony of the Investigating Officer (P.W.13) and further by CDR (call detail reports) which has been produced before the learned Trial Court after being followed with the specific provision as contained under Section 65-B of the Indian Evidence Act. 12. Learned counsel has submitted since the dead body of the deceased was recovered on the basis of the confessional statement of the co-convict namely Kulesh Rajjak and the country made pistol has also been found to be recovered from the disclosure made by the present applicant/appellant and by taking together of the provision of Section 27 with the Section 30 of Evidence Act the conviction has been based by the learned trial court as such it is not a fit case for suspension of sentence during pendency of the instant appeal. 13. It has further been submitted that it is a case where the applicant/appellant was having with the extra marital relationship with the co-convict namely Deepika Mishra who on earlier occasion was an informant but in course of the investigation the fact has come about her complicity and therefore, she has also been made an accused in alleged commission of crime in consequence of the evidence produced before the learned trial court and she has also been convicted. The learned counsel based upon the aforesaid grounds has submitted that the case of the present appellant since identical to that of Kulesh Rajjak whose prayer for suspension of sentence has already been rejected as such it is not a fit case for suspension of sentence during pendency of the instant appeal. Analysis 14. Heard learned counsel for the parties and gone through the finding of learned Trial Court in the impugned judgment and as also the testimony available in the lower Court record and the Exhibits available therein. 15. Before adverting to the merit of the case it needs to refer herein the settled position of law 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. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123 . The relevant paragraph of the aforesaid Judgment is being quoted as under: 31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002) 9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366 : 2003 SCC (Cri) 1197] , it was held by this Court that in cases involving conviction under Section 302IPC, 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 : 2003 SCC (Cri) 1195] , it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302IPC, 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. 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. 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. 16. Thus it is evident from the perusal of the relevant paragraphs of the aforesaid judgment is it is apparent that while considering the prayer for bail, in a case involving a serious offence like murder punishable under Section 302 IPC, 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. 17. Further, it needs to refer herein that the appreciation of the evidence in entirety is not required at this stage, reason being that while exercising power of suspension of sentence during pendency of appeal the Court has to see only the prima-facie case. 18. 17. Further, it needs to refer herein that the appreciation of the evidence in entirety is not required at this stage, reason being that while exercising power of suspension of sentence during pendency of appeal the Court has to see only the prima-facie case. 18. The Hon'ble Apex Court in the case of Preet Pal Singh vs. State of U.P., (2020) 8 SCC 645 has observed that there is difference between grant of bail in case of pre-trial arrest and suspension of sentence, post- conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, however, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: "35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC." 19. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC." 19. Thus, it is evident from the aforesaid judgment, that during considering suspension of sentence which is the postconviction stage, the presumption of innocence in favour the accused cannot be available and at this stage, the Court's only duty is to see that whether the prima-facie case is made out or not. 20. Further the learned counsel for the applicant has emphasized his argument on the issue of parity and contended that the co-accused persons including Sandeep Pal have been allowed to be released from judicial custody after suspension of sentence vide order dated 29.07.2024 and 28.10.2024 passed in Cr. Appeal (DB) No. 234 of 2024 and analogous cases and in Cr. Appeal (DB) 1116 of 2024 respectively, therefore on the ground of parity also, the present applicant/appellant deserve to be enlarged on bail. 21. In the aforesaid context this Court is conscious of the principle of parity, which is to be made applicable while granting bail/ suspending sentence. 22. In needs to refer herein that the issue of parity has been dealt by the Hon’ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, 2023 SCC OnLine SC 1486 wherein it has held as under: 18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.” 23. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simply saying that another accused has been granted bail is not sufficient to determine whether a case for grant of bail on the basis of parity has been established. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simply saying that another accused has been granted bail is not sufficient to determine whether a case for grant of bail on the basis of parity has been established. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 wherein it has been held as under: “25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) “17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.” 26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.” 26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to Vanraj Koli (A16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.” 24. It is evident from the proposition laid down in the said cases that the factual aspect governing the case of the culpability said to be committed by one or the other, if found to be exactly the same and having taken into consideration by the concerned Court, then only the principle of parity will be applicable. 25. In the backdrop of the aforesaid settled proposition of law this Court is now adverting to the fact of the instant case in order to ascertain that whether prima facie case for suspension of sentence is made out or not. 26. 25. In the backdrop of the aforesaid settled proposition of law this Court is now adverting to the fact of the instant case in order to ascertain that whether prima facie case for suspension of sentence is made out or not. 26. The learned counsel for the appellant has agitated the ground on parity as also on merit showing the innocence of the present applicant/appellant. 27. It is evident from the material available on record based upon the testimony of the witnesses it is a case where conviction has been based upon the applicability of the provision of Section 10, Section 27 and Section 30 of the Indian Evidence Act. 28. It is further evident from the material available on record that there is no recovery from the disclosure having been made by the co-convicts namely, Deepika Devi @ Deepika Mishra, Sonu Kumar Yadav, Etwari Mandal and Sandeep Pal. Since, the instant case based upon the availability of provision of Section 27 and Section 30 of the Indian Evidence Act and there is no any substantial recovery on the basis of the confessional statement of the aforesaid co-convicts and further on other hand recovery of country made pistol has been made on the basis of confessional statement of the present applicant/appellant as such the issue of parity will not be applicable herein. 29. Further, the Co-ordinate Bench of this Court has taken into consideration the aforesaid aspects of the matter while passing order of the suspension of sentence in regard to the co-convict namely, Deepika Devi @ Deepika Mishra, Sonu Kumar Yadav, Etwari Mandal and Sandeep Pal and at the same time similar prayer of the co-convict namely Kulesh Rajjak has been rejected taken in to consideration that on the basis of the confession statement made by Kulesh Rajjak the dead body of deceased has been recovered from the said place where the dead body was concealed. 30. It needs to refer herein that the informant of the instant case had preferred an SLP being the Special Leave to Appeal (Crl.) Nos. 16605- 16607 before the Hon’ble Apex Court against the order dated 29.07.2024 passed in Cr. 30. It needs to refer herein that the informant of the instant case had preferred an SLP being the Special Leave to Appeal (Crl.) Nos. 16605- 16607 before the Hon’ble Apex Court against the order dated 29.07.2024 passed in Cr. Appeal (DB) No. 234 of 2024 and analogous cases by which the prayer for suspension of sentence of the Co-Convicts namely Deepika Devi @ Deepika Mishra, Sonu Kumar Yadav, Etwari Mandal has been allowed but the Hon’ble Apex Court vide order dated 20.01.2025 has refused to interfere with order dated 29.07.2024 passed by the Co-ordinate Bench of this Court. 31. Now coming to the case of the present appellant it is evident that the confessional statement of the present appellant has been recorded and in the first confessional statement he had disclosed about the use of the country made pistol having point .315 bore, consequently the Police had visited at the place of location which was disclosed by the present appellant but the said pistol was not recovered from the said place. Thereafter the investigating agency had again taken the statement of the present appellant and based upon that the said Katta has been recovered. 32. Admittedly the instant case based upon the circumstantial evidence and the substances which are claimed and proved by the prosecution is basically C.D.R. marked as Ext P-26/PW-23 and as per the finding of the learned trial court it is evident from the said document that the present applicant/appellant and the co-convict Kulesh Rajjak, on whose disclosure the dead body was discovered has made 17 conversation with each other on the next day of alleged commission of the murder. 33. Further, it is evident that on disclosure statement of the co-convict namely Kulesh Rajjak the dead body of deceased has been recovered and as per the medical report a gunshot injury has been found by the Doctor who had conducted post-mortem on the dead body of deceased. Therefore, from the aforesaid fact the culpability of the present applicant/appellant in the alleged commission of crime has fully been corroborated reason being that on the basis of the confessional statement of the present applicant/appellant, Katta alleged to be used in the murder of deceased has been recovered. 34. Therefore, from the aforesaid fact the culpability of the present applicant/appellant in the alleged commission of crime has fully been corroborated reason being that on the basis of the confessional statement of the present applicant/appellant, Katta alleged to be used in the murder of deceased has been recovered. 34. On the basis of discussion made hereinabove and by applying the proposition laid down for the purpose of suspension of sentence in the case of Preet Pal Singh vs. State of U.P., (supra) and also applicability of principle of parity as discussed in preceding paragraph, in the light of the order passed by the Co-ordinate Bench in the case of co-convicts namely Deepika Devi @ Deepika Mishra, Sonu Kumar Yadav, Etwari Mandal and Sandeep Pal is of the view that the principle of parity will not be applicable herein and therefore it is not a fit case for suspension of sentence during pendency of the instant appeal. 35. This Court, after having discussed the factual and legal issues as per the discussion made hereinabove, is of the view that the present interlocutory application is not fit to be allowed. 36. Accordingly, I.A. No. 13448 of 2024 stands dismissed. 37. It is made clear that any observation made hereinabove will not prejudice the case on merit, since, the criminal appeal is lying pending before this Court for its consideration. 38. In view thereof, I.A. No. 13448 of 2024 stands disposed of with the aforesaid observation.