ORDER : 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. By way of this application under Section 430 (1) of the Bhartiya Nagarik Nayay Sanhita 2023, the applicant – original accused No.1 seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 20.9.2024 by the learned Sessions Judge, Bharuch in Sessions Case No.50 of 2022. 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 Life 25000/- Imprisonment SI for 3 months 4. Learned senior advocate Mr.Sudhir Nanavati appearing for the applicant has mainly contended as follows: (a) That none of the witnesses have supported the case of the prosecution and have been declared hostile and despite cross examination of the said witnesses by the prosecution, nothing fruitful has come on record to prove the case of the prosecution beyond reasonable doubt. (b) That the panch witnesses have also turned hostile, more particularly, discovery panchas and thus, it cannot be said that the prosecution has proved discovery of alleged weapon used in the crime being pointed out by the present accused. (c) That the case of the prosecution was based on allegation that harassment was caused by the present accused to the wife of the complainant who has been examined at Exh.30 and upon considering her deposition, she has categorically stated that she is not aware about the incident and has denied also with regard to the allegation of harrassment by the present accused for sending her messages. This witness has further denied altercation between her husband and the complainant and she has been declared hostile. (d) That the complainant who has been examined Exh.28 i.e. Mehulbhai Rajeshbhai Chauhan has also turned hostile. (e) That the brother, father and mother of deceased Priyank Dharmeshbhai Mahant have also turned hostile and have not supported the case of the prosecution. (f) That the learned trial Judge has erred in relying upon so called only dying declaration which is not reliable, more particularly, when Dr.Rashmikant Jagjivanbhai Chaudhary who has been examiined at Exh.35 has specifically stated that the deceased was in drowsy condition and nowhere in the history has he named the present accused. (f) That the learned trial Judge has erred in relying upon so called only dying declaration which is not reliable, more particularly, when Dr.Rashmikant Jagjivanbhai Chaudhary who has been examiined at Exh.35 has specifically stated that the deceased was in drowsy condition and nowhere in the history has he named the present accused. What has been stated before this Doctor is that friend of his had inflicted injuries in the stomach. This Doctor has further deposed that one chatacteristic of drowsiness in the patient is that the patient is not conscious and is not completely responsive and he is not mentally alert and that aspect has been given total go-bye by the learned trial Judge. (g) That the learned trial Judge has materially erred by relying upon the deposition of Ashaben Mahendrasinh Raol at Exh.49 – Deputy Mamlatdar who has recorded alleged dying declaration of the deceased coupled with the fact that she has not obtained any fitness certificate of the patient from the treating Doctor or any Doctor of the Apex Hospital where the deceased was under treatment. (h) That the dying declaration recorded by the Deputy Mamlatdar is without obtaining any primary satisfaction from the Doctor on duty about the state of consciousness and the capability of the partient to record the alleged declaration, more particularly, in absence of any fitness and conscious certificate issued by the Doctor on duty in ICU on the date of recording the dying declaration i.e. 19.4.2022, reliance placed by the trial Court is not in accordance with the settled principles of law. (i) That even otherwise, the Deputy Mamlatdar who had recorded the dying declaration herself has not asked any question to arrive at the satisfaction that the deceased was in fit state of mind to understand the question put to him and was also in conscious state of mind. On the contrary, she has asked the question to the deceased as to whether he was fit or not to which the deceased answered in the affirmative. (j) Lastly, it is argued that yadi for recording dying declaration itself states as to how the incident has taken place and who has inflicted injuries. Thus, the Deputy Mamlatdar was very well aware as to what was to be written in the dying declaration and as such, no reliance can be placed. Therefore, it is prayed for suspension of sentence. 5. Thus, the Deputy Mamlatdar was very well aware as to what was to be written in the dying declaration and as such, no reliance can be placed. Therefore, it is prayed for suspension of sentence. 5. On the other hand, Ms.C.M.Shah, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and has vehemently opposed the present application. It is argued that the present application requires no indulgence at the hands of this Court since the present accused has been convicted for serious offence punishable under section 302 of INDIAN PENAL CODE . 5.1 It is further argued that though all the witnesses have turned hostile, the factum of dying declaratin being proved beyond reasonable doubt is satisfactorily proved by the prosecution before the learned trial Court and what has been stated by the learned advocate for the appellant requires thorough reappreciation of evidence which is not permissible at the stage of considering the application for suspension of sentence. 5.2 It is further argued that merely because the Doctor has not endorsed with regard to the state of mental and physical condition of the patient, it cannot be said that the dying declaration is not proved beyond reasonable doubt, more particularly, when the learned trial Judge has relied upon the judgment in the case of Laxman Vs State of Maharashtra, reported in AIR 2002 SC 2973 wherein it is held that if it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the delaration can be acted upon provided the court uultimately holds the same to be voluntary and truthful. In the facts and circumstances of the case, keeping in mind the aforesaid principle, learned trial Court has correctly relied upon the dying declaration and imposed the punishment which does not require interference at this stage when the life imprisonment is imposed and the present accused has not been convicted for any fixed sentence. Thus, learned APP has argued to reject the present application. 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 applicants have made out a case for suspension of sentence under Section 430 of the Bhartiya Suraksha Sanhita 2023 or not? 8. Thus, learned APP has argued to reject the present application. 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 applicants have made out a case for suspension of sentence under Section 430 of the Bhartiya 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 , (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 , (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 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. 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 , (2002) 9 SCC 364 and 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 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. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar v. State of Maharashtra , (2005) 5 SCC 281 and 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 transpires that solely relying upon the dying declaration, the learned trial Judge has arrived at the finding that the applicant has inflicted injuries upon the deceased. That the alleged incident is of 18.4.2022 at 22.30 hours. The findings recorded by the learned trial Judge in paragraph 31 of the impugned judgment are that the dying declaration is recorded at 1.45 am to 2.12 am whereas on perusal of the impugned judgment, more particularly, paragraph 10, it has been stated that on 19.4.2022 at the Apex Multispeciality Hospital, he had examined the deceased Priyank at 12.30 in the night. Considering the time gap beween the incident i.e. at 10.30 am on 18.4.2022 examined by the Doctor at Apex Multispeciality Hospital at 12.30 operated him since it was emergency and in between recording of dying declaration by the Magistrate creates serious doubt with regard to the mental and physical condition of the deceased being able to depose before the Deputy Mamlatdar and thus, the applicant has made out prima facie case for suspension of sentence. 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. 10. Having considered the peculiar facts and circumstances of the present case, the applicant convict stands on fair chance of acquittal and should not be kept behind the bars till conclusion of the appeal since there is no likelihood of the present appeal being taken up for final hearing in near future. 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. 11. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 20.09.2024 by the learned Sessions Judge, Bharuch in Sessions Case No.50 of 2022 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. 12. Rule made absolute to the aforesaid extent. Direct service is permitted.