ORDER : P. M. RAVAL, J. 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. The present application is preferred by original accused – Ishwarbhai @ Laxmanbhai Maknabhai Katara under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 15.3.2018 by the learned Additional Sessions Judge, Mahisagar at Lunawada in Sessions Case No.36 of 2017. 3. The facts of the case in nutshell are as follows: 3.1. The applicant along with his wife and father were charged with the offence under sections 302 read with 114 of the INDIAN PENAL CODE , 1860. It is the case of the prosecution that the deceased and the applicant herein were engaged in carpentry work. There was some dispute between the two and therefore they parted their ways from each other. Allegedly the deceased had given Rs.25,000/- to the applicant herein when the wife of the applicant was not well. It is also alleged that at the relevant time, the deceased had carried out carpentry work for the house of the applicant as well and therefore the deceased was demanding money from the applicant for both. It is alleged that therefore on 12.07.2014 when the deceased came to the house of the applicant for getting the amount back, a quarrel took place between the deceased on one hand and the accused persons on the other hand whereby the deceased was strangulated and done to death. 3.2 After completion of trial, the present applicant – original accused along with one other accused were convicted. Hence, the present application for suspension of sentence. 4. Learned advocate Mr.Nirad Buch appearing for the applicant has mainly contended as follows : (a) That the present applicant has completed more than 10 years of incarceration. (b) That last seen theory is not proved. (c) That the entire case is based on circumstantial evidence and chain of circumstances having independently and collectively not proved, the present application is required to be allowed. (d) That there are material contradictions in the depositions of the witnesses. However, learned trial Court has given go-bye to such contradictions and has wrongly passed the impugned judgment and order. Thus, it is argued to allow the present application. 5. (d) That there are material contradictions in the depositions of the witnesses. However, learned trial Court has given go-bye to such contradictions and has wrongly passed the impugned judgment and order. Thus, it is argued to allow the present application. 5. On the other hand, Mr.Aditya Jadeja, 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 contentions raised by learned counsel appearing for the applicant would amount to reappreciation of evidence which this Court should be loath in doing so at the stage of suspension of sentence, more particularly, when no prima facie case of suspension of sentence is made out. Under the circumstances, 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 applicant has 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 , 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. 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. 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. 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. 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. 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 and it transpires that in the schedule of accidental death No.25/14 under section 174 of the Code of Criminal Procedure, no name of any person has been stated and coupled with the fact that where the husband was going for collection of money is not stated. However, in the FIR the name of the present accused has been mentioned. The entire case is based on circumstantial evidence. Only the present accused was seen going towards the house of the deceased. That the dead body was found from the open place and was not in the house coupled with the fact that when two views are plausible and also coupled with the fact that the accused is in jail for last 10 years and that the appeal is not likely to be taken up for hearing in the near future. 10. 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. 11. 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. 11. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 15.03.2018 by the learned Additional Sessions Judge, Mahisagar at Lunawada in Sessions Case No.36 of 2017 (old Sessions Case No.117 of 2014) 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.