ORDER : P. M. RAVAL, J. 1. Criminal Misc. Application (Regular Bail) No.1 of 2025 in Criminal Appeal No.1178 of 2024 is preferred by Ayar Tejabhai Bhalabhai Vashrambhai – original accused No.4 through jail, Criminal Misc. Application (for suspension of sentence) No.3 of 2024 in Criminal Appeal No.1178 of 2024 is preferred by Ayar Devayatbhai Raimalbhai Bhalabhai – original accused No.3 and Ayar Arjanbhai@ Ajabhai Tejabhai Bhalabhai – original accused No.5, whereas Criminal Misc. Application (for suspension of sentence) No.4 of 2024 in Criminal Appeal No.1178 of 2024 is preferred by Ayar Babubhai Raimalbhai Bhalabhai – original accused No.1. All these applications are preferred by the applicants – original accused for suspension of sentence imposed vide judgment and order dated 15.5.2024 in Sessions Case No.33 of 2019 by learned Additional Sessions Judge, Patan at Radhanpur for various offences as follows: Sections of IPC Sentence Fine in Rs. Default sentence 143 3 months SI 1000 15 days SI 147 1 year SI 1000 1 month SI 148 1 year and 6 months SI 1000 1 month SI 302 r/w 34 and 149 Life Imprisonment 5000 3 months SI 324 r/w 34 and 149 1 year SI 1000 1 month SI 452 r/w 34 and 149 3 years SI 2000 2 months SI and Rs.5000/- each as compensation to be paid to Ratnabhai Malabhai Ahir and Kanabhai Devrajbhai Ahir and in default thereof, to undergo 3 months simple imprisonment. All the aforesaid sentences were ordered to run concurrently and as per the Gujarat Victims Compensation Scheme 2019, the compensation of Rs.5000/- is to be paid to the heirs of deceased Ayar Malabhai Bhurabhai. 2. The applicant - Ayar Tejabhai Bhalabhai Vashrambhai – original accused No.4 has preferred Criminal Misc. Application (Regular Bail) No.1 of 2025 in Criminal Appeal No.1178 of 2024 through jail inter alia contending that all the family members of the present accused are in jail and his wife as well as minor children have no source of income and are indebted and has prayed for suspension of sentence. It is also contended that the applicant is a senior citizen aged about 60 years and that the applicant be released on bail by taking lenient view and that there is no evidence of last seen together or eye witness. That the entire case is based on circumstantial evidence. It is also contended that the applicant is a senior citizen aged about 60 years and that the applicant be released on bail by taking lenient view and that there is no evidence of last seen together or eye witness. That the entire case is based on circumstantial evidence. That there is no dying declaration and hence, it is prayed for releasing him on bail. 3. So far as Criminal Misc. Application (for suspension of sentence) No.3 of 2024 in Criminal Appeal No.1178 of 2024 is concerned, the same is preferred by Ayar Devayatbhai Raimalbhai Bhalabhai – original accused No.3 and Ayar Arjanbhai@ Ajabhai Tejabhai Bhalabhai – original accused No.5. It is argued by learned advocate Mr.Yash Nanavati appearing for the applicants – original accused Nos.3 and 5 that only role attributed to applicant No.3 is of holding knife, whereas against accused No.5 is of holding tomy and injuring PW 10. He has argued that considering the deposition of the Doctor, he has clearly stated in his cross examination that injuries to the deceased which were fatal in nature, more particularly, injury Nos.1 and 2 cannot be inflicted by knife and has thus, argued to allow the present application. 4. Learned advocate Mr.Yash Nanavati has further argued that considering the deposition of Dr.Krunal Rameshbhai Patel – PW 2, the specific cause of death is because of injury upon head and lower limb. However, none of the injuries are attributed to the applicants and has thus argued that in absence of any injury caused by the applicants to the deceased, the sentence be suspended. It is further argued that none of the witnesses have attributed any injury to the applicants and hence, no offence under section 302 of IPC can be said to be committed by the applicants. It is further argued that crucial witness i.e. Momayabhai @ Mayur Malabhai Ahir who happens to be the son of the deceased and brother of the first informant has not supported the case of the prosecution and has turned hostile. Hence also, strong case of suspension of sentence is made out. 5. It is further argued that crucial witness i.e. Momayabhai @ Mayur Malabhai Ahir who happens to be the son of the deceased and brother of the first informant has not supported the case of the prosecution and has turned hostile. Hence also, strong case of suspension of sentence is made out. 5. It is lastly argued that original accused No.3 was released on bail vide order dated 17.12.2021 pending the trial and thereafter from the date of pronouncement of the judgment and order dated 15.5.2024, the applicant – Ayar Devayatbhai Raimalbhai Bhalabhai is in judicial custody and has thus argued that the applicant having not misused the liberty granted to him and has also abided by all the conditions imposed upon him, the applicant be released on bail. It is further argued that applicant No.2 – original accused No.5 was released on bail by order dated 12.8.2022 by the learned Additional Sessions Judge, Patan and hence also, on the same ground, applicant No.2 – original accused No.5 is required to be released on bail. 6. So far as Criminal Misc. Application (for suspension of sentence) No.4 of 2024 in Criminal Appeal No.1178 of 2024 is concerned, the same is preferred by Ayar Babubhai Raimalbhai Bhalabhai – original accused No.1. Learned advocate Ms.Jaimini Patel appearing for original accused No.1 has argued that the present is not the case where at the fag end of the appeal, the prosecution would be able to sustain the order of conviction since the conviction is ex-facie bad and illegal. 7. It is further argued by learned advocate Ms.Jaimini Patel that the applicant is a permanent resident at the address shown in the cause title and not likely to abscond and/or jump the condition as may be imposed. That role attributed to the applicant – original accused No.1 is to the effect that he was holding pointed iron rod at the entry gate of the residence. However, from none of the depositions of the witnesses, the prosecution has been able to prove that the applicant has inflicted injury to any person either deceased or any other person. Under the circumstances, no conviction under section 302 can be sustained and has thus argued to allow the application. 8. However, from none of the depositions of the witnesses, the prosecution has been able to prove that the applicant has inflicted injury to any person either deceased or any other person. Under the circumstances, no conviction under section 302 can be sustained and has thus argued to allow the application. 8. It is further argued that even otherwise, as per the evidence of PW 9, the present applicant has not inflicted any injury and has clearly stated that the applicant was only standing at the entry gate of the residence and hence, it is argued to allow the present application. 9. On the other hand, Mr.L.B.Dabhi, 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 applicants 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. 10. It is further argued that there are eye witnesses and injured witnesses who have given clear cut depositions against the present applicants – accused. That learned trial Court has convicted the present applicant by invoking Section 149 of IPC. It is argued that grounds raised by the applicants that their role played would fall insignificance in view of the prosecution having proved the ingredients of Section 149 of IPC. It is argued that learned trial Court has given well reasoned and detailed judgment by considering the oral as well as documentary evidences and has also argued that at this stage, the Court cannot look into the oral as well as documentary evidences in detail and hence, it is argued to reject the present application. 11. Heard learned advocates for the respective parties and also gone through the charges levelled against the respective applicants - accused. 12. 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? 13. We have carefully examined the case records and considered the submissions made by the both the sides. 12. 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? 13. 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 389 CrPC 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) "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. 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 [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. 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. 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." 14. 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. Learned advocate Mr.Yash Nanavati has relied upon the judgment in the case of Madhusudan & others Vs State of Madhya Pradesh, reported in 2024 LawSuit (SC) 737, more particularly, paragraph 14 which reads as under. “We have given our thoughtful consideration to the contentions raised by the respective counsel. Before examining the facts, a reiteration of the significant distinction between “common object” and “common intention” would be apposite. Both the trial Court as well as the High Court, it is seen, had mechanically applied Section 34 in place of Section 149 without any discussion on this aspect. Before examining the facts, a reiteration of the significant distinction between “common object” and “common intention” would be apposite. Both the trial Court as well as the High Court, it is seen, had mechanically applied Section 34 in place of Section 149 without any discussion on this aspect. The trial court has equated “common object” with “common intention”, while analyzing the role of the accused and failed to give any reasons in support of the altered conviction.” It is required to be noted that this Court is not deciding the appeal in question on merits. Therefore, the ground raised by learned advocate Mr.Yash Nanavati with regard to the distinction between “common object” and “common intention” by referring to the judgment in the case of Madhusudan (supra) would not be relevant, more particularly, when the learned trial Court has also convicted the accused persons by invoking section 149 of IPC. At this stage, this Court would not go into the intricacies of sections 34 and 149 of IPC since it would be amounting to reappreciation of evidence which is not permissible at the stage of suspension of sentence. 15. The role attrributed to accused No.1 – Ayar Babubhai Raimalbhai Bhalabhai – applicant of Criminal Misc. Application (for suspension of sentence) No.4 of 2024 in Criminal Appeal No.1178 of 2024 is that he was standing near the door of the house with pointed iron rod. The role attributed to applicant No.1 – Ayar Devayatbhai Raimalbhai Bhalabhai – original accused No.3 and applicant No.2 – Ayar Arjanbhai @ Ajabhai Tejabhai Bhalabhai – original accused No.5 of Criminal Misc. Application (for suspension of sentence) No.3 of 2024 in Criminal Appeal No.1178 of 2024 was holding knife and tomy respectively, whereas the role attributed to the applicant Ayar Tejabhai Bhalabhai Vashrambhai – original accused No.4 of Criminal Misc. Application (Regular Bail) No.1 of 2025 in Criminal Appeal No.1178 of 2024 was holding stick. On bare perusal of the impugned judgment itself, it can be noticed that learned trial Court has given detailed reasons for coming to the conclusion coupled with the fact of role played by the individual and also the conduct of the accused persons at the time of incident and the manner in which entire incident has taken place, has convicted the accused also by invoking Section 149 of IPC. Therefore, as per the settled principles of law also no overact is required to be proved for invoking Section 149 of IPC coupled with the fact that presence of present accused is also proved. 16. It is also required to be noted that the Honourable Apex Court has time and again has held that merely because the accused persons were on bail pending trial and have not misused liberty is not a ground for suspension of sentence since the ground of innocence no more remains after conviction and the Court should not be swayed away on on this ground alone. (Kindly refer Omprakash Sahni (supra)). 17. Considering over facts and circumstances of the case, this Court is not inclined to exercise discretion in favour of the applicants, more particularly, when section 149 of IPC has been proved. The contention with regard to “common object” and “common intention” requires detailed scrutiny which is not permissible at the stage of considering the application for suspension of sentence. Hence, the present applications fail and accordingly the same are dismissed. Notice is discharged in each of the applications.