JUDGMENT :

Sandeep Mehta, J.

1. The instant application has been filed under Section 389 Cr.P.C. for suspension of sentences on behalf of the accused appellant/applicant Mahendra S/o. Shri Rambharosi Lal, who has been convicted and sentenced for the offence under Section(s) 302, 148, 341, 324 & 323/149 of IPC.

2. Reply to the application for suspension of sentence has been filed on behalf of respondent-State. As per custody certificate (Annexure R-2) dated 04.09.2020 available on record, the appellant/applicant had served custodial period of eight years ten months & three days as on that date.

3. Thus, by now, actual custodial period suffered by the appellant/applicant has exceeded to nine years.

4. Learned counsel for the appellant/applicant pointed out that conviction of the appellant/applicant has been recorded by the trial court for the charge under Section 302 IPC simplicitor which is absolutely illegal. He urges that there is a consistent allegation of the material prosecution witnesses that the appellant and the co-accused Arjun who were armed with knives, inflicted injuries thereof to the deceased Haider. Allegation was also leveled that Sanju, Kailash, Ramphool and Avinash who were also having various weapons in their hands caught hold of the victim while the stab injuries were inflicted to him by the appellant and Arjun. Attention of the Court is drawn to the statement of the eyewitness Abid Khan (PW-1), who stated that Avinash, Sanju, Kailash and Phoolchand caught hold of Haider. Arjun inflicted knife blow on the chest, whereas Mahendra inflicted knife blow on the back, as a result whereof Haider fell down. This Court was also taken through the evidence of the Medical Jurists (PW-16) Dr. Suman Dutta, who carried out autopsy upon the dead body of Haider and deposed that three external injuries were noticed on the dead body. Injury No. 1, was stab-wound admeasuring 2.5 cm x 0.5 cm triangular in shape on the lower back, injury No. 2 was a Stab/incised wound admeasuring 2 cm x 0.5 cm triangular in shape on the front of chest, and injury No. 3 was also a stab/incised wound admeasuring 2 cm x 0.5 cm triangular on the middle of the chest. The medical officer explained that all the three injuries Nos. 1, 2 & 3 were caused by sharp pointed weapon. Injury No. 2 caused on the chest of deceased was fatal whereas injuries Nos. 1 & 3 were neither individually nor cumulatively sufficient to cause death. In this background learned counsel contends that as the fatal blow caused to the deceased is specifically attributed to the co-accused Arjun, conviction of appellant for the offence under Section 302 IPC simplicitor cannot be sustained. He submits that the appellant has remained in custody for a period in excess of nine years. Hearing of the appeal is likely to consume time. On these submissions, learned counsel Mr. Keshav Kumar Agrawal representing the appellant/applicant implored the Court to accept the application for suspension of sentence and enlarge the appellant/applicant on bail during the pendency of appeal.

5. Per contra, learned Pubic Prosecutor has vehemently and fervently opposed the submissions advanced by counsel for the appellant/applicant and urged that there is a consistent allegation of material prosecution witnesses that appellant and co-accused Arjun who were armed with knives inflicted multiple injuries to the deceased Haider which assertion is duly corroborated by the medical evidence. It was submitted that appellant/applicant does not deserve to be enlarged on bail.

6. We have considered the submissions advanced at Bar and also perused the impugned judgment and record. Suffice it to say that the prosecution case as against the appellant/applicant and co-accused Arjun has been crystallized in the evidence of the eye witness PW-1 Shri Abid Khan who pertinently stated that the injuries on the chest of the deceased Haider were inflicted by Arjun whereas the appellant/applicant inflicted the knife blow on his back. The