ORDER : HEMANT M. PRACHCHHAK, 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 of BNSS, 2023, the applicants namely, Jethiyabhai Bhavlabhai Rathva, Nevsingbhai Jethiyabhai Rathva and Vitthalbhai Jethiyabhai Rathva, seek suspension of sentence awarded to them by the Sessions Court concerned for the offence punishable under Sections 302, 201 and 114 of the Indian Penal Code. 3. The present appeal and the application for suspension of sentence arise from the judgment dated 10.09.2024 and order of sentence passed in Sessions Case No. 08 of 2019, whereby, the applicants herein were convicted and sentenced as under: Section Imprisonment Fine In default S.302 read with 114 of IPC Imprisonment for Life 10000 Imprisonment for 6 months S.201 read with 114 Imprisonment for 7 Yrs 2000 Imprisonment for 2 months 4. Facts and circumstances giving rise to file appeal as well as this application are that on 19.11.2018, at around 9:00 AM in the morning, while original first informant was out of his house in order to procure Aadhar Card of his father and returning back to his house at 6:00 PM in the evening, he saw his brother i.e, deceased, present in the house whereas, original first informant after having his dinner, when went out towards a field, at that juncture, he saw his brother (deceased) in the company of the applicant Nos.1 and 2 talking to each other, after which, original first informant returned back to his house and asked his mother to go and call the deceased. Mother of the original first informant since was unable to locate the deceased, she again came back informing the original first informant about the same. Original first informant thereafter, tried to know the whereabouts of the deceased carrying out search in the village and in the Faliya in which he was residing. Mother of the original first informant since was unable to locate the deceased, she again came back informing the original first informant about the same. Original first informant thereafter, tried to know the whereabouts of the deceased carrying out search in the village and in the Faliya in which he was residing. On next day morning, i.e. 20.11.2018, again when original first informant, his parents went into search of the deceased so also informing other relatives at around 1:00 PM in the afternoon, one Mukeshbhai Dersingbhai Rathva called up the original first informant informing him that there is a dead body of one person lying on the road of village Chiliyavant, identified as a dead body of the deceased on which entire family rushed to the said place, saw dead body of the deceased lying, as was informed with a motive that some lady dispute cropped up between the accused side and the deceased in past, for which a quarrel ensued, nurturing that very grudge, applicant Nos. 1 and 2 eliminated the deceased with that understanding and suspicion, FIR was lodged with Rangpur Police Station on 20.11.2018. Govindbhai Narubhai Rathva, brother of the deceased, filed an FIR/complaint bearing C.R. No.50 of 2018 with Rangpur Police Station, Dist.: Chhota Udepur, dated 20.11.2018. Pursuant to the FIR, the applicant accused was apprehended and at the end of investigation, chargesheet came to be filed against him. He was tried by the Sessions Court. The learned Sessions Court has convicted the applicant for the offences as referred above. 5. Learned advocate Mr. Pratik Barot, appearing on behalf of the applicants while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law. He was tried by the Sessions Court. The learned Sessions Court has convicted the applicant for the offences as referred above. 5. Learned advocate Mr. Pratik Barot, appearing on behalf of the applicants while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law. He has submitted that the case is rest upon circumstantial evidence namely, evidence in nature of last seen together, wherein, the witness PW-1 - Govindbhai being the brother of the deceased and PW-3 – Radtiben being the mother of the deceased, who were witness to last seen together, have not supported the case of the prosecution, except these two witnesses, there is no other witness with regard to the theory of last seen together and therefore, the case solely rest upon the evidence of the I.O. and the Medical OfÏcer who have examined the dead body of the deceased and therefore, this is a fit case to exercise powers under Section 430 of BNSS by suspending the sentence imposed upon the applicants. He has further submitted that no motive was established by the prosecution and in absence of motive merely last seen together in case of circumstantial evidence, it is highly improbable and risky to convict the accused persons solely on the basis of such evidence. He has further submitted that the applicants were on bail during pendency of the trial and they have not misused their liberty during trial. He has submitted that it is well settled that in case of circumstantial evidence, the theory of last seen together is a week piece of evidence and required to be corroborated with the last chain of circumstance to connect the accused with the crime in question and herein the present case, as there was no motive established and even there was no satisfactory evidence with regard to last seen together was established by the prosecution and the witnesses who had last seen together have not supported the case of the prosecution therefore, in all totality of circumstances, the applicants are involved in the alleged offence only on the basis of suspicion and no other evidence to connect or corroborate the accused with the crime in question. He has submitted that there is no possibility of appeal being taken up for hearing in immediate near future, the Court may exercise its discretion by passing order of suspension of sentence and grant of bail to the applicant. 5.1 In support of his submissions, learned advocate Mr.Pratik Barot has referred and relied upon the following decisions : [I] Arun Shankar vs. State of Madhya Pradesh , [2024] AIR SC 1920 , wherein, in identical situation, the Hon’ble Apex Court has disbelieved the case of the prosecution; [II] Navneethakrishnan vs. State by Inspector of Police , [2018] 16 SCC 161 Head Note a :Indian Penal code, 1860 – S. 34, 302, 364, 379 – Evidence Act, 1872 – S. 3, 9 – murder – last seen together – circumstantial evidence – appeal against conviction – held, accused cannot be convicted solely on the basis of evidence of last seen together with deceased – undoubtedly, last seen theory is important event in chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty – however, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration. Head Note c : Evidence Act, 1872 – S. 3 – murder – circumstantial evidence – in case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take place of legal proof – court must satisfy itself that various circumstances in chain of events must be such as to rule out a reasonable likelihood of innocence of accused – when important link goes, chain of circumstances gets snapped and other circumstances cannot, in any manner, establish guilt of accused beyond all reasonable doubt – court has to be watchful and avoid danger of allowing suspicion to take place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof – there is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions – where prosecution rests on circumstantial evidence, prosecution must place and prove all necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except accused, no one had committed offence, which in present case, prosecution has failed to prove. [III] Nusrat Parveen vs. State of Jharkhand, [2025] AIR SC 105 [IV] Darshan Singh vs. State of Punjab, [2024] 3 SCC 164 [V] Raja Naykar vs. State og Chhattisgarh, [2024] 3 SCC 481 [VI] State of Himachal Pradesh vs. Raghubir Singh and Others, [2024] AIR SC 2395 6. 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 submitted that this is a case of murder where the case is solely rest upon circumstantial evidence likewise last seen together in view of the observations made by the Hon’ble Apex Court in the case of Bhupatji Sartajji Jabraji Thakor Vs. The State of Gujarat dated 05.07.2024 rendered in Special Leave Petition (Criminal) Diary No. 27298 of 2024 and therefore, the applicants do not deserve any sympathy as prima facie the prosecution of innocence has already gone, since they are convicted for a very serious and heinous offence punishable under Section 302 of IPC and therefore, they would urge that, considering the gravity of offence and societal interest, this is not a case to exercise discretion in favour of the applicant accused. 7. In the case of Bhupatji Sartajji Jabraji Thakor (supra), the Hon’ble Supreme Court has held and observed in para – 7 as under:- “7. There is a fine distinction between a sentence imposed by the trial Court for a fixed term and sentence life imprisonment. If a sentence is for a fixed term, ordinarily, the appellate court may exercise its discretion to suspend the operation of the same liberally unless there are any exceptional circumstances emerging from the record to decline. However, when it is a case of life imprisonment, the only legal test which the Court should apply is to ascertain whether there is anything palpable or apparent on the face of the record on the basis of which the court can come to the conclusion that the conviction is not sustainable in law and that the convict has very fair chances of succeeding in his appeal. For applying such test, it is also not permissible for the court to undertake the exercise of re-appreciating the evidence. The emphasis is on the word “palpable” and the expression “apparent on the face of the record”. 8. For applying such test, it is also not permissible for the court to undertake the exercise of re-appreciating the evidence. The emphasis is on the word “palpable” and the expression “apparent on the face of the record”. 8. Having regard to the facts and circumstances of the case, the issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence? 9. We have carefully examined the case records and considered the submissions made at the bar. 10. Heard learned advocates appearing for the respective parties and considered the submissions made on behalf of both the sides. On perusal of the copy of evidence produced by learned advocate Mr. Barot for the applicants, and on careful examination of the same, we are of the opinion that the applicants have made out a case for suspension of sentence imposed upon them, since both the witnesses namely, Govindbhai, the brother of the deceased and Radtiben, the mother of the deceased, who were the witnesses to the last seen together, have not supported the case of the prosecution and the remaining witnesses have not even stated anything further with regard to the incident and even prosecution was unable to establish the motive and in absence of motive, merely theory of last seen together, as held by the Hon’ble Apex Court, is a very weak piece of evidence and therefore, under such circumstances, we are persuaded to exercise our discretion in favour of the applicants convicts for the purpose of substantive order of sentence. 11. Having considered the peculiar facts and circumstances of the present case and considering the backlog of the appeals pending before this Court, the chance of appeal being heard in near future is extremely remote, we deem it appropriate that this is a fit case to suspend the sentence imposed on the applicants and to enlarge them on bail pending Criminal Appeal. 12. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. 12. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicants awarded vide judgment dated 10.09.2024 by the learned Sessions Judge, Chhota Udepur, in Sessions Case No. 08 of 2019 is suspended during the pendency of the Criminal Appeal and the applicants shall be released on bail on their furnishing a personal bond of Rs.10,000/- EACH with one surety of the like amount EACH to the satisfaction of the trial Court subject to condition that they 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 their address and in case of change in address, shall inform to the concerned police station as well as to this Court. Direct service permitted.