per D.N. Patel, J.-This application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence.

2. This is a fourth attempt for getting an order for suspension of sentence, during pendency of this appeal, awarded by the trial court for the offence punishable under Section 302 to be read with other Sections of the Indian Penal Code.

3. We have heard learned counsel for both sides at length.

4. Having heard learned counsel for both sides and looking to the evidence before the trial court, it appears that there is a prima facie case against the applicant-accused.

5. Learned counsel for the applicant has argued out the case, in detail and at length. As the criminal appeal is pending, we are not much analyzing the evidences on record. Looking to the deposition of P.W. 5, who is an eye witness of the incident, suffice it to say that there is prima facie case against the present applicant-accused:-

(i) As per this witness, the weapon used is firearm weapon and the injuries have been caused at the vital part of the body of the deceased, as inflicted in the post mortem report.

(ii) Looking to the deposition of P.W. 6 (Krishna Murari), who is a doctor, it appears that his deposition is corroborated by the deposition of P.W. 5.

(iii) On previous occasions also, applications for suspension of sentence preferred on various points of time have been rejected; firstly on 14th June, 2005, secondly on 7th August, 2006 and thirdly on 11th September, 2007.

6. Thus, looking to the deposition of the prosecution witnesses, as stated hereinabove, it appears that there is prima facie case against the present applicant-accused.

7. Looking to the gravity of the offence and the quantum of punishment and the manner in which the present applicant-accused is involved, we are not inclined to suspend the sentence awarded by the trial court to applicant no. 1.

8. Learned counsel for the applicant submitted that the sentence, awarded to the other co-accused, has been suspended . looking to their old age.

9. It has been held by the Hon'ble Supreme Court in the case of Khllari v State of U.P. and Another reported in AIR2008 S.C. 1882 especially in Paragraph-10 which reads as under:-

"10. In Anwari Begum vs. Sher Mohammad and Am. [(2005)7 S.C.C. 326] it was, inter alia, observed as follows:-

" 7. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.

8. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail they are:-

1. The nature of accusation and the severity of punishment in. case of conviction and the nature of supporting evidence:

2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the Court in support of the charge.

Any order de hors of such reasons suffers from non-application of mind as was noted by this Court, in Ram Govind Upadhyay vs. Sudarshan Singh and Ors. [(2002)3 SCC 598]:

Puran etc. vs. Rambilas and Anr. etc. [(2001)6 SCC 338)] and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004(3) SC 442]." (Emphasis supplied)

10. Thus, the aforesaid can be the only ground for suspension of sentence i.e. a prima faci