JUDGMENT : (PER : HONOURABLE MR.JUSTICE P. M. RAVAL) 1. Rule. Learned APP waives service of notice of Rule on behalf of respondent State. 2. The present application is preferred by the applicant – original accused 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 1.4.2024 by the learned 8 th Additional Sessions Judge, Surat at Bardoli in Special Atrocity Case No.4 of 2017. 3. Learned advocate Mr.Hardik Raval appearing for the applicant has mainly contended as follows : (a) That the applicant is in judicial custody since 8.8.2016 and has completed more than 8 years and there is no likelihood of appeal being heard in near future. (b) It is further argued that from the charge itself, it is clear that incident has taken place out of quarrel between the deceased and the accused and as per the case of the prosecution, on 17.8.2016, the deceased did turn up for the work and therefore, applicant accused at 8.00 O’clock in the morning went to pick him up; however, he declined to accompany him for the work and because of this, quarrel has taken place and at that time, the applicant accused used abusive language to which the applicant accused got annoyed and picked up spade which was lying near and inflicted injuries on the head of the deceased, due to which, the deceased expired on 30.8.2016. Thus, it is argued that the incident has taken place on the spur of moment without any premeditation because of quarrel and thus, this is a clear case of culpable homicide not amounting to murder lacking intention to kill though knowledge may be attributed and thus, it is argued to allow the application. 4. Though served none appears for the original complainant. 5. On the other hand, Mr.Pranav Dhagat, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction and has opposed the present application. It is submitted that the contentions raised by learned advocate for the applicant would amount to reappreciating the evidence which is not permissible while deciding the application for suspension of sentence. 5. On the other hand, Mr.Pranav Dhagat, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction and has opposed the present application. It is submitted that the contentions raised by learned advocate for the applicant would amount to reappreciating the evidence which is not permissible while deciding the application for suspension of sentence. It is submitted that learned trial Judge has given cogent and convincing reasons and after appreciating the documentary as well as oral evidence and merely because 8 years and 11 months have passed is no ground to suspend the sentence and release the applicant on bail more particularly, when the complicity of the accused in serious crime of murder is proved beyond reasonable doubt. Under the circumstances, it is 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 Nagarik Suraksha Sanhita 2023 or not? 8. We have carefully considered the submissions made by learned advocates for both the sides. We have also perused the impugned judgement and order. In a serious offence of attracting the rigorous punishment, 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. 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 3021PC, 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 which runs into 76 pages. Learned trial Judge has rejected the argument of considering the case under the provisions of section 304-II of IPC considering the nature of weapon as well as injuries sustained by the deceased and has relied upon section 105 of the Indian Evidence Act that burden of proof of the case is on accused that it comes within exception and thus, rejected the said submission. However, without discussing merits and demerits of the case in detail which would cause prejudice to either side, the fact remains that the complainant – Manjulaben is examined as PW 5 at Exh.25 and her deposition is reproduced from page 17 onwards till page 19 and in examination-in-chief itself, she has stated that there was quarrel between the accused and her husband. Thus, prima facie case for exception to culpable homicide not amounting to murder is made out and on going through the jail report submitted by Central Jail, Lajpore, Surat dated 3.9.2025, it transpires that the applicant accused has undergone 8 years, 11 months and 10 days incarceration. Under the circumstances, when there are no immediate fair chances of appeal being taken up for final hearing in near future, we are of the opinion that strong prima facie case in favour of the applicant has been made out. 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. 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 tentative in nature and made only for the purpose of deciding the present application for suspension of sentence. 11. Accordingly, present application is allowed. The sentence of the applicant awarded vide judgment and order dated 1.4.2024 by the learned 8 th Additional Sessions Judge, Surat at Bardoli in Special Atrocity Case No.4 of 2017 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.