ORDER : P. M. RAVAL, J. 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. By way of this application under Section 430 of the Bhartiya Nagarik Nayay Sanhita 2023, the applicant – Org. Accused seeks suspension of sentence awarded to him vide judgment and order of conviction and sentence dated 26.05.2021 by the learned Special (Atrocity) and 7 th Additional Sessions Judge, Banskantha at Palanpur in Special ( Atrocity) Case No.27/2017. 3. By the aforesaid judgment and order of conviction and sentence, the present applicant - convict has been held guilty for the commission of offences as stated hereinbelow : Section Imprisonment Fine in Rs. In default of payment of fine. 302 read with Section 120(B) Life Imprisonment 10,000/- SI for 6 Months 364 read with Section 120(B) of IPC Life imprisonment 5,000/- SI for 3 months 342 read with Section 120(B Imprisonment for one year 1,000/- SI for one month 331 read with Section 120(B Imprisonment for 10 years 5,000/- SI for two months The Ld. Special Judge has directed the Applicant to undergo all the sentences concurrently and also gave benefit of set off in respect of imprisonment suffered as under trial prisoner. 4. Ld. Senior Advocate Mr. Jal Unwalla with Ld. Advocate Z.F Barda would submit that:- 4.1 That vide order dated 29.09.2024, one co-accused namely Vishnubhai Mafabhai Rabari whose application for suspension of sentence was allowed by this Court, hence, the present Applicant – Accused is ordered to be enlarged on bail pending the hearing of the appeal. 4.2 That the Applicant being also similarly situated and having undergone approximately eight years in judicial custody has once again filed the Application seeking for suspension of sentence. 4.3 That the Applicant was arrested on 18.08.2017, since then he is in jail, moreover, he is only 39 years old and if not granted bail, pending the final outcome of the Appeal, the entire life of the Applicant will be ruined and also the life of his family members would be adversely affected. 4.4 The Appeal has been admitted by this Court in the year 2021 and despite the Applicant having undergone eight years in judicial custody the Criminal Appeal has not been taken up for hearing. Under such circumstances, also the present Application for suspension of sentence should be allowed. 4.4 The Appeal has been admitted by this Court in the year 2021 and despite the Applicant having undergone eight years in judicial custody the Criminal Appeal has not been taken up for hearing. Under such circumstances, also the present Application for suspension of sentence should be allowed. 4.5 That though the Applicant is alleged to have assaulted the deceased while he was in his custody, the evidence which has come on record clearly suggests of the fact that the Applicant has only given slaps to the deceased and thereafter, the custody of the deceased was taken away by the Accused Nos. 1 to 8 and it is the case of the prosecution and the driver who was the witness who was driving the car when the deceased was taken away by the accused Nos. 1 to 8 along with them that the deceased walked and sat inside the car by himself and there was no injuries sustained by the deceased and thus argued that when the deceased was ultimately succumbed to injury when he was in the custody of the accused Nos. 1 to 8. Thus, the driver of the car was unable to explain nor the prosecution explain beyond reasonable doubt as to how the deceased succumbed while the accused was in the custody of Accused Nos. 1 to 8. When the Accused Nos. 1 to 8 were enlarged on bail, the Applicant also deserves to be enlarged on bail. 4.6 Ld. Senior Counsel has also drawn attention of the Court towards the deposition of Sikandarkhan Nijamkhan Bhati at Exh. 123 and has argued that he has only seen the present Applicant slapping the deceased and there were some signs of injury on his face, however, no injuries were seen on his body and the injury on the face was as if some one has hit the deceased with a fist. 4.7 That the Ld. Judge has relied upon the clip taken by the Accused No. 10 from the phone of the accused No. 9 to justify the findings even if prima facie considered, would amount only to slapping the deceased and nothing more than that. However, the prosecution has failed to prove its case beyond reasonable doubt as to who inflicted the injury to the deceased. However, the prosecution has failed to prove its case beyond reasonable doubt as to who inflicted the injury to the deceased. 4.8 That except the evidence of so-called eyewitness, there is no other legally admissible evidence against the present accused to rope him for the alleged offence. 4.9 That Sikanderkhan Nizamkhan Bhati who has claimed to be an eye witness is rendered highly suspicious and his actions are questionable on account of the driver Sikanderkhan choosing not to immediately approach the police station or not choosing to be the complainant himself despite he claiming to be an eyewitness to the incident. More particularly, said witness has chosen to move around with the dead body of the deceased which raises suspicion over his conduct. 4.10 That none of the witnesses have alleged any overt act against the present Applicant. That almost all the Panchas have turned hostile. 4.11 That the Panchas of the panchnama regarding the video clip alleged have recorded were also examined by the prosecution, however, they did not support the case of the prosecution. 4.12 That the panchas of panchnama of discovery of the bamboo stick and a Dhoka (wooden log) and plastic pipe article Nos. 18,19 and 20 from the present Applicant as well as other co-accused have turned hostile. 4.13 That the Ld. Sessions Judge has erred in holding that the Applicant had spoken from the Mobile Number 88490 28671, despite the fact that the panchas of the alleged recovery from the Applicant did not support the said panchnama. 4.14 That the case is based on the circumstantial evidence and the prosecution has failed to prove such circumstances beyond reasonable doubt forming the complete chain pointing out the fingers of guilt towards the accused only. Under such circumstances, suspicion may be raised against the present Applicant but cannot be established beyond reasonable doubt. Under such circumstances, the Applicant be relied on bail. 4.15 That the FSL report Exh. 239 with regards to examination of mobile and Exh. 237 of CD clips and the photographs did not give any definite opinion regarding the photographs of the activity thereof or voice identification and thus, could not be used as it would not take the case of the prosecution any further. Thus, it is argued to allow the present Application. 5. Learned Additional Public Prosecutor Mr. 237 of CD clips and the photographs did not give any definite opinion regarding the photographs of the activity thereof or voice identification and thus, could not be used as it would not take the case of the prosecution any further. Thus, it is argued to allow the present Application. 5. Learned Additional Public Prosecutor Mr. L. B. Dabhi submits that the Applicant has been convicted for the offence under Section 302 of the IPC, and that the prosecution has proved its case beyond reasonable doubt. It is from the possession of the present Applicant that the deceased was taken away by the co-accused, after which he succumbed to injuries. However, the accused has failed to provide any satisfactory explanation in his statement under Section 313 of the CrPC regarding the custody of the deceased and the injuries sustained by him.Learned APP has further argued that the Trial Judge, after appreciating both oral and documentary evidence, has passed a well-reasoned judgment convicting the present accused. The submissions made by the Learned Advocate for the Applicant would amount to re- appreciation of evidence, which is not permissible at the stage of seeking suspension of sentence—particularly when the accused has been convicted under Section 302 of IPC and sentenced to life imprisonment. The mere completion of eight years of incarceration does not automatically entitle the Applicant to suspension of sentence or release on bail. 5. Ld. Advocate Mr. Darshan Dave for the Complainant has vehemently opposed the present Applicant on behalf of the Respondent No. 2 – Org. complainant and has stated that though liberty was granted to file an Application after a period of one year dated 14.07.2023, there are no changed circumstances pointed out by the Applicant more particularly when the Accused is convicted for the offence punishable under Section 302 for life imprisonment. Ld. Advocate further drawn attention of this Court to para 9 of the order dated 24.09.2024 passed in Criminal Misc. Application No. 6/2024 in Criminal Appeal NO. Ld. Advocate further drawn attention of this Court to para 9 of the order dated 24.09.2024 passed in Criminal Misc. Application No. 6/2024 in Criminal Appeal NO. 858 of 2021 preferred by Vishnubhai Mafabhai Rabari (Bhungor) who is enlarged on bail, wherein it is clearly stated that the Accused No. 9 was beating and abusing the deceased and a video shot is recorded by the Accused No. 10, wherein, the present Applicant is sitting inside the hotel “Aai Mata” and is seen assaulting and abusing the deceased victim and has thus, argued to reject the present Application. 6. Heard Ld. Advocates for the respective parties. 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. 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. 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. 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. 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. 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." 7. We have gone through the order passed by the Co-ordinate Bench of this Court dated 24.09.2024 releasing Vishnubhai Mafabhai Rabari on bail. Such would not be a correct approach." 7. We have gone through the order passed by the Co-ordinate Bench of this Court dated 24.09.2024 releasing Vishnubhai Mafabhai Rabari on bail. We have also perused the impugned judgment running into 191 pages and have considered the arguments of the Ld. Advocates for the respective parties. 8. Ld. Trial Court at Page No. 51, para 18 onward, has stated that the main and only eyewitness to this incident is Sikandarkhan Nizamkhan Bhati, who has been examined on oath vide Exh. 123. In para 19, page 54, the Ld. Judge has also taken into consideration the statement of this witness under Section 164 of the CRIMINAL PROCEDURE CODE before the Ld. Magistrate. The Ld. Trial Judge, in para 20, has also recorded the deposition of Bhavansinh Dolaji Chauhan, Pw 23, examined vide Exh. 135, and ST Bus Driver Mr. Prahladbhai, PW 24, examined vide Exh. 138. Even the statement of Prahladbhai under Section 164 of the CRPC is also taken into consideration on page 73. In para 26, page 78, the presence of accused Nos. 9 to 14 kidnapping the deceased from the ST Bus and taking him to “AAI Maa Hotel” is also taken into consideration. In para 27, the call details of accused Nos. 8 and 9 to 14 are recorded. The death of the deceased after taking custody from Accused Nos. 9 to 14 by Accused Nos. 1 to 8, and then succumbing to the injury, and the manner in which the entire crime was committed, have been taken into consideration by the Trial Court through detailed examination and by taking into consideration oral as well as documentary evidence. On page 95, the factum of video recording by Accused No. 10 from the mobile phone of Accused No. 9 is recorded. Thus, from the material on record, complicity of present Applicant in commission of crime is made out. 9. We do not see any prima facie error from the reading of the judgment that the Trial Court has committed a grave error apparent on the face of the record so as to make out the prima facie case of acquittal by the Accused. Under such circumstances, merely because the Applicant has undergone eight years’ incarceration is not sufficient to grant bail by suspending sentence qua the present applicant, and no exceptional case is made out. Under such circumstances, merely because the Applicant has undergone eight years’ incarceration is not sufficient to grant bail by suspending sentence qua the present applicant, and no exceptional case is made out. Under such circumstances, the Application stands dismissed. Rule is discharged.