ORDER : 1. By way of this application under Section 389 of Cr. P.C. the applicants seek suspension of sentence awarded to them by the Sessions Court concerned for the offence punishable under Sections 302 , 447, 324 r/w 34 of the INDIAN PENAL CODE . 2. The present appeal and the application for suspension of sentence arise from the judgment dated 26.11.2020 and order of sentence passed in Sessions Case No. 23 of 2015, whereby, the applicants herein was convicted and sentenced as under: Section Imprisonment Fine In default S.302 of IPC RI for Life 5000 SI for 2 months S. 447 SI for 1 month - - S.324 SI for 6 months - - 3. Facts and circumstances giving rise to file appeal as well as this application are that 15 accused had been tried for the act of double murder. According to case of the prosecution, on 21.06.2015, at about 8-00 PM, the accused formed an unlawful assembly with common object to kill the persons of complainant party, as a result of which, they assembled armed with deadly weapons like swards, knives, axes, wooden log, iron pipe and came at the house of the deceased Kishanbhai at village: Saiyed Rajpura, Tal.: Una, Dist.: Gir Somnath. In order to execute the common object, the accused being members of the unlawful assembly, attacked on deceased Kishanbhai Bambhaniya and his brother Gabhrubhai Bambhaniya and caused multiple fatal injuries, as a result, both brothers lost their lives. The complainant – son of deceased Kishanbhai PW-27, while trying to save his father, sustained injuries alleged to have been caused by accused Ramesh Ransinh (A3), whereas, the mother Deviben PW-28, had sustained grievous injuries in the said incident. In such circumstances, upon filing the complaint, 15 accused were apprehended and upon completion of the investigation, chargesheet came to be filed against them. It is relevant to note that, original accused no. 11 – Devchand Jayantibhai, succeeding in his claim about his juvenility and his trial was separated, whereas, accused no. 13 – Nanu Ransinh Rathod died pending the trial, and trial proceedings stands abated against him. Before the Additional Sessions Judge, Una, the prosecution, in order to prove the charges, had examined 42 witnesses and exhibited 109 documents. 11 – Devchand Jayantibhai, succeeding in his claim about his juvenility and his trial was separated, whereas, accused no. 13 – Nanu Ransinh Rathod died pending the trial, and trial proceedings stands abated against him. Before the Additional Sessions Judge, Una, the prosecution, in order to prove the charges, had examined 42 witnesses and exhibited 109 documents. The trial Court, after appreciation of evidence and hearing the parties, vide its judgment dated 26.11.2020, convicted the accused No. 3 Ramesh Ransinh, and accused no. 14 – Bhima Ransinh, for the murder of two persons, as referred above under Section 302 read with Section 34 of the IPC and also convicted under Section 447 of the IPC and sentenced them to suffer life imprisonment. The remaining accused have been acquitted of all the charges, as prosecution failed to prove the factum of unlawful assembly, the identity of the accused and material contradiction and improvement in the deposition of eye-witnesses on the aspect of complicity of acquitted accused in the offence. 4. The convicted accused have preferred the Criminal Appeal No. 161 of 2021 and during the pendency of the appeal, by preferring present application, seeking suspension of sentence and grant of bail. 5. We have heard Mr. B.M. Mangukiya, learned advocate appearing for and on behalf of applicants accused and Mr. L.B. Dabhi, learned APP for the respondent State. 6. Learned advocate Mr. B. M. Mangukiya, appearing on behalf of the applicant while praying for suspension of sentence contended that, since the date of arrest, the applicants are in judicial custody and incarceration period is more than 9 years and till date, the possibility of hearing of the appeal is bleak. So far as merit is concerned, it was submitted that, out of 13 accused, the trial Court, convicted the applicants and acquitted the others. The version of the eye-witnesses have been believed qua the applicants and disbelieved for remaining accused. In short, based on the similar evidence, the different standard of appreciation is not permissible in eye of law and therefore, the Court cannot convict the applicants and acquitted the others, when there is similar or identical evidence. The version of the eye-witnesses have been believed qua the applicants and disbelieved for remaining accused. In short, based on the similar evidence, the different standard of appreciation is not permissible in eye of law and therefore, the Court cannot convict the applicants and acquitted the others, when there is similar or identical evidence. Referring to the testimonies of eye-witnesses, more particularly the evidence of complainant – PW-7, it was urged that, the account of incident and name of assailants given by the complainant in the Court is different that in the statement made before the police and there are material contradictions, improvement and exaggeration found in the testimonies of other eye- witnesses and therefore, the case of the prosecution becomes doubtful. The third contention raised is that, according to version of eye-witnesses, 50 to 60 persons were part of the unlawful assembly and the incident occurred during the night time and despite of said disclosure, the 15 accused were identified and their names were being disclosed due to political enmity. That the mother of the complainant – PW-28 could not identify majority of the accused in the Court, which shows that, she was not eye-witness of the incident. That despite of availability of the witnesses of the nearby vicinity, no independent witnesses are being examined. That the evidence of recovery and discoveries are not acceptable and believable, as the contents of panchnamas thereof, having not proved by the investigation ofÏcer. In such circumstances, it was submitted that, the findings recorded by the trial Court is unjust, improper and contrary to the evidence on record and therefore, considering the long incarceration and the infirmities, as pointed out in the judgment, there are fair chances of appeal being allowed, and therefore, it has been prayed that, this is a fit case to exercise the discretion in favour of the applicants – accused. 7. 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 contended that, the offence proved is serious one and affecting society at large, as in the said offence, two persons have lost their lives. 7. 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 contended that, the offence proved is serious one and affecting society at large, as in the said offence, two persons have lost their lives. In addition to that, it is submitted that, the trial Court has rightly believed the testimonies of eye-witnesses in proving the complicity of the accused in the offence for which, court has assigned sound reasons, based on the evidence on record, which cannot be termed to be contrary to the evidence on record. In such circumstances, it was submitted that no any exceptional ground exist or made out by the accused. 8. 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. In the present case, two real brothers had been killed in the said incident. The motive behind the offence is the election of Pradhan Village (Sarpanch), as the applicant – Ramesh being a Sarpanch, disqualified after delivery of third child, as a result, the witness PW-28 Deviben – wife of deceased Kishanbhai, elected as a Sarpanch. It is no doubt true that, the trial Court, disbelieved the formation of unlawful assembly and involvement of other accused on the ground of their identity, and so far their involvement and participation is concerned, the trial Court found exaggeration and contradiction in the deposition of the witnesses and on this aspect, in para-79 of the judgment has assigned sound reasons. So far as, role attributed to present applicants are concerned, prima-facie, it appears that, they were armed with swards, and inflicted multiple injuries on the body of the deceased namely Kishanbhai and Gabhrubhai and there is no inconsistency with the medical evidence. The learned trial Court, has also referred the maxim “falus-in-uno-ominibus” and further observed that, the testimonies of the witnesses though disbelieved qua the acquitted accused, but it can not be disbelieved, discarded or rejected against the applicants accused. 10. In such circumstances, we are of the considered view that, the contention on merits, as raised herein, cannot be evaluated in detail at this stage, as it can be taken into consideration at the time of final hearing of the appeal. 10. In such circumstances, we are of the considered view that, the contention on merits, as raised herein, cannot be evaluated in detail at this stage, as it can be taken into consideration at the time of final hearing of the appeal. Thus, therefore, having regard to the nature of evidence led by the prosecution and findings recorded by the trial Court, it is difÏcult for us to arrive at the prima-facie satisfaction that the conviction may not be sustainable. We may refer the recent decision of the Supreme court in the case of Omprakash Sahani Vs. Jayshankar Chaudhary , (2023) 6 SCC 123 . After referring the earlier all decisions on this aspect, the Supreme Court observed and held that, while dealing with the case of suspension of sentence and grant of bail, the appellate Court before allowing the prayer, should prima-facie come to a conclusion that, the conviction may not be sustainable. Para-33 is relevant to refer and same is reproduced hereunder: “Para-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 above said question is to be in the afÏrmative, 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 take 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 re- appreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacuna or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 11. The Appellate Court should not re- appreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacuna or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 11. Bearing in mind the aforesaid principle of law and applying the same in the present case, we do not find any exceptional ground or circumstances, for exercising discretion and accordingly, present application stands dismissed and is hereby dismissed. Notice discharged. The observations made hereinabove are tentative and prima-facie in nature and confine to the adjudication of this application. 13. We take notice of the fact that, the incarceration period is of 9 years and therefore, Registry is directed to notify the Criminal Appeal for final hearing on 12.08.2025.