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 No.1 – Dharmendrabhai @ Dhamabhai Vajubhai Makwana under Section 389 of the Code of Criminal Procedure 1973 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 18.10.2022 by the learned 7 th Additional District & Sessions Judge, Ahmedabad (Rural) at Dholka in Sessions Case No.30 of 2021. 3. Learned advocate Mr.B.S.Panchal appearing for the applicant has mainly contended as follows : (a) That no witnesses have named the present applicant in the alleged crime. (b) That learned trial Judge has not appreciated the fact that the present applicant being identified in the court room by the complainant Raghuben, Champaben, Laxmiben, Tinabhai, Bhanuben and Rajubhai. However, all these witnesses gathered at the place of incident hearing the screaming of the complainant and had seen accused No.2 inflicting injuries on knees and thigh with pipe. Thus, none of these witnesses have seen the present accused having inflicted any injury to the deceased. (c) That no independent witness’s statement has been recorded and hence identifying the present accused for the first time in the court does not inspire any confidence. (d) That even otherwise as per the deposition of Ranguben – original accused No.3 i.e. Dashrathbhai had assaulted Tinabhai on his forehead with wooden stick and she has also further deposed that all the injured were taken to Kalikund Pasharwanath Hospital, Dholka. However, medical certificate does not prove that alleged injuries were inflicted in the said incident. (e) That panch witness of the discovery of stick from the applicant has not supported the case of the prosecution and hence blood stains alleged to have been found from the stick recovered from the applicant cannot be relied upon. (f) Lastly, it is argued that the present accused is in jail since 13.6.2016 and almost 8 years have passed. Under such circumstances, it is argued to allow the present application. 4. On the other hand, Mr.Jay Mehta, 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. Under such circumstances, it is argued to allow the present application. 4. On the other hand, Mr.Jay Mehta, 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 advocate 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. It is further argued that learned trial Court has given cogent reasons and well reasoned judgment has been delivered after appreciating both oral as well as documentary evidences. Under the circumstances, learned APP has argued to reject the present application. 5. Heard learned advocates for the respective parties and also gone through the charges levelled against the present accused. 6. The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 389 of the Code of Criminal Procedure 1973 or not? 7. 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) "4. 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. 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." 8. 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 from the record that the applicant accused has already undergone incarceration of 8 years, 7 months and 8 days as on 2.8.2025 as per the jail remarks of the Central Jail, Ahmedabad submitted by learned APP. Under the circumstances, without discussing the judgment and order of conviction in detail which would prejudice the case of either side coupled with the fact that the alleged incident has taken place on 3.6.2016, the conviction is recorded by the impugned judgment and order dated 18.10.2022, under the circumstances, there is no likelihood that the present appeal will be taken up for hearing in near future. 9. 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 purely tentative in nature and are made only for the purpose of deciding the present application for suspension of sentence and would not come in any way against the prosecution while finally deciding the appeal on merits. 10. Accordingly, present application is allowed. It is required to be noted that the observations made hereinabove are purely tentative in nature and are made only for the purpose of deciding the present application for suspension of sentence and would not come in any way against the prosecution while finally deciding the appeal on merits. 10. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 18.10.2022 by the learned 7 th Additional District & Sessions Judge, Ahmedabad (Rural) at Dholka in Sessions Case No.30 of 2021 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. 11. Rule made absolute to the aforesaid extent. Direct service is permitted.