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.9 – Chandrakant Meghajibhai Daki under Section 430 of the Bhartiya Nagarik Suraksha Sanhita 2023 for suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 28.2.2025 by the learned Additional Sessions Judge, City Sessions Court No.16, Ahmedabad City in Sessions Case No.185 of 2009. 3. The facts of the case in nutshell are as follows: 3.1. On 15th June, 2006 deceased Pankajbhai Trivedi was assaulted by four unknown assailants around 8.30 p.m., near Ellisbridge Gymkhana in the city of Ahmedabad. He received fatal injuries and the injuries were caused with baseball bat and other weapons. He died instantaneously. The FIR was lodged by one Ramesh Vishvakarma on the same night at about 11.15 p.m. The police commenced investigation and it revealed that the deceased had criticized certain activities of the leaders of Swadhyay Parivar headed by late Pandurang Athavle Shastri and one Dhanshri Talvalkar, popularly known as Jayshri Didi. The criticizm was made even during the lifetime of Athavleji. Hence, large number of followers of Athavleji had expressed their strong resentment against the deceased and his group. As a result of this, numerous complaints were also filed against the deceased in different criminal Courts for the alleged defamatory publications made by him. The deceased was arrested, but later on released on bail. That was sometime in September/October 2005. It also appears from the record that the criminal proceedings in respect of one publication are still alive; whereas criminal complaints which were filed against another alleged defamatory publication has been quashed. It also transpires from the investigation material that certain people hatched conspiracy to commit murder of the deceased and the assault on 15th night was the result of such conspiracy. 3.2 After completion of trial, the present applicant – original accused No.9 along with other accused were convicted. Hence, the present application for suspension of sentence. 4. It also transpires from the investigation material that certain people hatched conspiracy to commit murder of the deceased and the assault on 15th night was the result of such conspiracy. 3.2 After completion of trial, the present applicant – original accused No.9 along with other accused were convicted. Hence, the present application for suspension of sentence. 4. Learned senior advocate Mr.N.D.Nanavati assisted by learned advocate Mr.Rahul Dholakia appearing for the applicant has mainly contended as follows : (a) That on 14.6.2006, present accused No.9 was asked by accused No.4 – Bhupatsinh Narubha Jadeja to purchase base-ball bat pursuant to which the present accused along with accused No.10 – Jasubha Dolubha Jadeja went to purchase base-ball bat. Further, on 15.6.2006 accused No.4 – Bhupatsinh Narubha Jadeja, accused No.1 – Chandrasinh Manubha Jadeja, accused No.5 – Mansinh Arjan Vadher, accused No.10 – Jasubha Dolubha Jadeja and the present accused travelled from Rajasthan to Ahmedabad in Tata Sumo car bearing registration No.GJ 1 AR 6457 belonging to and driven by Aniruddhsinh Jadeja. At the same time, accused No.2 – Hiteshsinh Rameshsinh Chudasama, accused No.3 – Dakshesh Hashmukhlal Shah aided by Chirag Thakkar, Kaushal Amin and Manish Patel conducted reconnaissance on Pankajbhai’s whereabouts (deceased) and after gathering location of the deceased, accused No.1 – Chandrasinh Manubha Jadeja, accused No.4 – Bhupatsinh Narubha Jadeja, accused No.5 – Mansinh Arjan Vadher and the present accused came to Ellisbridge Gymkhana in Maruti Van bearing registration No.GJ 1 HK 1564 belonging to Dharamsinh. It is further the case of the prosecution that accused No.5 – Mansinh Arjan Vadher armed with pipe and accused No.4 – Bhupatsinh Narubha Jadeja armed with base-ball assaulted the deceased culminating in his demise. (b) It is further contended that it is the case of the prosecution that the present accused with accused No.1, accused No.4 and accused No.5 stayed at Roshni Guest House from 11.6.2006 to 13.6.2006. However, no evidence worth the name is coming on record that all these accused had stayed at Roshni Guest House. The prosecution has examined PW 10 – Jitendrabhai Ishwarbhai Patel to prove their presence at Roshni Guest House. However, this witness has not supported the case of the prosecution. It is further contended that even the owner of the Guest House - PW 11 -Devendrabhai Dave has not supported the case of the prosecution. The prosecution has examined PW 10 – Jitendrabhai Ishwarbhai Patel to prove their presence at Roshni Guest House. However, this witness has not supported the case of the prosecution. It is further contended that even the owner of the Guest House - PW 11 -Devendrabhai Dave has not supported the case of the prosecution. (c) It is further contended that after arrest of the present accused, test identification parade was conducted at the behest of PW 11. However, neither panchas nor learned Magistrate have been examined in the present case. However, the Investigating Officer who has been examined as PW 84 has made reference in his examination-in-chief, but to the surprise, the said document is not produced or exhibited during the course of trial. However, learned trial Judge has relied upon the provisions of section 291-A of CrPC, accepted the same and used as evidence against the present accused without there being any independent or corroborative piece of evidence. (d) It is further argued that no CCTV footage to prove the presence of the accused has been placed on record. That it is the case of the prosecution that accused No.1 has signed the hotel register in the name of Raju Dave + 4 to prove that the present accused was also present at Roshni Guest House. Purportedly, handwriting expert has opined that handwriting of accused No.1 matched with that of the individual who signed the register as Raju Dave. However, handwriting expert has not been examined to prove the same. (e) It is further argued that even assuming for a moment, such handwriting is believed to be proved, the presence of the present accused was that from amongst four other persons is not coming forth. (f) It is further argued that the present accused had used Maruti Van car bearing registration No.GJ 10 9783 during his stay at Ahmedabad from 11.6.2006 to 13.6.2006. However, the owner of Maruti car PW 12 – Parikh and PW 76 have not supported the case of the prosecution. (g) It is further argued that no evidence is even admitted to laid by the prosecution to substantiate the allegation with regard to the present accused having asked accused No.4 – Bhupatsinh to purchase base- ball bat who is alleged to have gone with accused No.10 – Jasubha to purchase it. (g) It is further argued that no evidence is even admitted to laid by the prosecution to substantiate the allegation with regard to the present accused having asked accused No.4 – Bhupatsinh to purchase base- ball bat who is alleged to have gone with accused No.10 – Jasubha to purchase it. (h) Similarly, it is alleged that accused No.4 – Bhupatsinh had arranged Tata Sumo Car belonging to PW 54 Aniruddhsinh to trave to Ahmedabad on 15.6.2006. However, the said witness has also turned hostile. Surprisingly, learned trial Judge relied upon the statement under section 164 of CrPC of the said witness which has not been duly proved and has resiled from having made any such statement before the learned Magistrate but learned trial Judge has relied upon the such evidence and convicted the present accused. (i) That no test identification parade has been conducted at the behest of the prosecution witness Aniruddhsinh to identify the persons travelling in the alleged Tata Sumo car. (j) That one Ramesh Vishvakarma who has lodged the FIR has not been examined by the prosecution who alleged to have witnessed the incident. That one Ravatmal, Security Guard at the nearby bungalow at the place of incident has been examined as PW 55 who has allegedly witnessed the said incident, however, he has not supported the case of the prosecution. (k) It is further argued that learned trial Judge has relied upon the uncorroborated piece of evidence i.e. the statement under section 164 of CrPC and relied upon the handwriting expert opinion without he being examined and relying upon the testimony of the Investigating Officer as well as Police Officer and also relying upon the demonstration panchnama which is not admissible in evidence coupled with the fact that such panchnama is also not proved in accordance with law has convicted the present accused solely on the surmises and assumptions and has argued to allow the present application, more particularly, that the wife of the deceased has also not supported the case of the prosecution and claimed of having no knowledge for the cause of the death of the deceased. 5. 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. 5. 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 senior counsel appearing for the applicant would amount to re-appreciation 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. 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) "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." 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, it transpires that none of the material witnesses except the police witnesses have supported the case of the prosecution. It also transpires that learned trial Judge has relied upon the testimony of the Investigating Officer who has recorded the statement of the witness under section 161 of the CrPC during the investigation which is not substantive piece of evidence and has got no evidentiary value on its own, also coupled with the fact that as far as the present accused is concerned, his presence at Roshni Guest House is also not proved by the prosecution. That the owner of the Guest House, Manager of the Guest House, wife of the deceased, PW 54 – Aniruddhsinh on whose statement learned trial Judge has relied upon to convict the present accused has denied to have made such statement. Under the circumstances, test identification parade, panchnama though exhibited and relied upon by the learned trial Judge cannot be used against the present accused without there being any other corroborative and independent piece of evidence since what is stated before the learned trial Court by the panchas is considered as substantive piece of evidence and the panchnama itself cannot be used for the purpose of corroboration. 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 15.6.2006, the conviction is recorded by the impugned judgment and order dated 28.2.2025, under the circumstances, there is no likelihood that the present appeal will be taken up for hearing in 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 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. 11. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 28.02.2025 by the learned Additional Sessions Judge, City Sessions Court No.16, Ahmedabad in Sessions Case No.185 of 2009 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.