The court has the discretion to grant the concession of suspension of substantive sentence during the pendency of an appeal based on the totality of the facts and circumstances of the case.

In all, there are eight accused booked in this case, namely, Mantu Sharma, Sharban Sharma, Rabindra Sharma and Shambhu Sharma, Umakant Sharma, Navrangi Sharma, Changuri Sharma and the present appellant. Out of these eight accused, Shambhu Sharma, Umakant Sharma, Navrangi Sharma and Changuri Sharma could not be nabbed and Mantu Sharma, Sharban Sharma, Rabindra Sharma and the present appellant were put to trial. As stated by Mr.K.P.Deo, learned counsel for the appellant, they are now facing a separate trial and the appellant along with Mantu Sharma, Sharban Sharma and Rabindra Sharma stand convicted for the offence punishable under section 302/149 I.P.C and 307/149 I.P.C, vide the impugned judgment dated 11thNovember, 2011.

2. Learned counsel states that the three co-convict of the appellant have filed their separate appeal bearing Cr.Appeal (DB) No.649/2011. The present appellant filed the instant appeal in 2014 with a dealy of 815 days which stands condoned, vide order dated 18.12.2014.

3. The appellant is now praying for suspension of substantive sentence during the pendency of the instant appeal. He is stated to be in custody since the year 2008, thereby undergone more than six years of his substantive sentence.

4. Learned counsel submitted that the prosecution case was registered on the statement of one Ganit Sharma (PW1), the injured eye-witness to the occurrence, who, undoubtedly in his fardbeyan (first information) lodged with the police, had specifically named the appellant along with aforesaid seven persons and stated that all the eight persons had assaulted the deceased. According to the learned counsel, it is an omnibus allegation invovling all the persons in the present occurrence. Learned counsel submitted that when Ganit Sharma stepped into the witness box, he did not whisper a word about the presence of the appellant.

5. Learned counsel submitted that the prosecution case is then resting upon the evidence of other four witnesses, namely, Sanju Devi, wife of the deceased, Neha Kumari, daughter of the deceased, Navin Sharma and Dharmdeo Sharma. According to the wife of the deceased, she had reached the spot after hearing noise (hulla) along with daughter, the prosecution witness. She categorically stated that when she reached, the occurrence was already over. When Navin Sharma stepped into the witness box, he claimed himself to be an eye-witness. His presence is doubted when seen along with the evidnece of PW5 Dharmdeo Sharma, who stated that when he reached the spot after the occurrence was over, Navin Sharma was not present.

6. Learned counsel, from the entire set of evidence, wants to submit that the prosecution case was primarily banking upon the evidence of injured witness, namely, Ganit Sharma and he does not involve the appellant in the occurrence at all and the presence of other eye-witnesses to the occurrence namely, Navin Sharma, from the statement of PW Dharmdeo Sharma becomes doubtful. Wife and daughter of the deceased, in any case, cannot be said to be the eye-witnesses to the occurrence.

7. In order to dent the case of the prosecution, further learned counsel submitted that although it is has come in evidence that all the eight accused had assaulted the deceased, but if one looks at the post mortem report, there appears to be four injuries on the person of the deceased, one of those injuries landed on the vital part of the decased, i.e. head resulting into fracture of parietal bone of the skull, whereas three injuries are on non-vital part of the body, i.e. hand and leg.

8. Learned counsel vehemently contended that taking into account the totality of the facts and circumstances of the present case, when the main witness to the occurrence is not showing the participation of the appellant in the occurrence along with his co-accused, he deserves the concession of the suspension of the sentence during the pendency of the main appeal.

9. Prayer is opposed by learned A.P.P strenuously stating that P