The main legal point established in the judgment is the application of Section 389 Cr.P.C. and the legal principle from Dharam Pal Vs. State of Haryana, 1999 (4) R.C.R (Criminal) 600 in suspending the remaining sentence during the pendency of the appeal.

1. This is the first application filed under Section 389 Cr.P.C. by the applicants/appellants seeking suspension of sentence imposed upon them by the Sessions Judge, Panchkula, in Sessions Case No.91 of 2017 and CNR No.HRPK01-003890-2017 pertaining to FIR No.26 dated 21.05.2017 under Sections 302, 34 IPC, registered at Police Station GRP, Chandigarh, vide judgement of conviction dated 07.05.2019 and order on quantum of sentence dated 13.05.2019.

2. Vide the said judgment and order, the applicants have been convicted by the learned Sessions Judge for committing offence punishable under Section 302 IPC read with Section 34 IPC and sentenced to undergo imprisonment for life with fine of ?2,000/- each.

3. Challenging the said judgment and order, the applicants-appellants have filed appeal (CRA-D-710-2019) before this Court, which has been admitted on 30.08.2019 and the recovery of fine has also been stayed during the pendency of the appeal.

4. As per the custody certificate filed by the State, both the applicants- appellants have undergone a total period of custody of 05 years 08 months and 26 days including post conviction custody period of 03 years, 09 months and 06 days.

5. We have heard learned counsel for the applicants and learned counsel for the State and have gone through the record minutely.

6. Learned counsel for the applicants has contended that the trial Court has failed to consider that the prosecution has not been able to point out any motive behind the alleged murder. The ocular version does not tally with the medical evidence in respect of consumption of liquor and injuries suffered by the deceased. The trial Court has wrongly relied upon the story of the prosecution which has been supported only with the statement of interested witnesses. He has further contended that the shirt which was allegedly got recovered by the applicants and the weapon of offence i.e. stone were not sent to the FSL for comparison of blood stains with the blood sample of the deceased. These recoveries have been implanted just to support the version of the prosecution. No finger prints were lifted either from bottle, plastic glasses or stones. He has also argued that the last seen story is highly improbable as the witnesses are relatives of the deceased. There is an inordinate delay of about 06 days in lodging of the FIR, which has not been explained. He has further contended that the prosecution has failed to prove the complete chain of circumstances and the circumstantial evidence on record is not sufficient for conviction of the applicants. He has contended that in view of totality of the facts and circumstances as well as legal aspect of the matter and the fact that the appeal is not likely to be heard in near future, the applicants deserve the concession of bail and the remaining sentence of the applicants may be suspended in the interest of justice, till decision in the main appeal.

7. On the other hand, learned State counsel has strongly refuted the contentions of learned counsel for the applicants. He has contended that as guilt of the applicants has been established beyond the shadow of reasonable doubt, so they have been rightly convicted by the learned trial Court and they are not entitled to the relief of suspension of sentence.

8. However, it has been fairly conceded by learned State counsel that the applicants/appellants have undergone a total period of custody of 05 years 08 months and 26 days including post conviction custody period of 03 years, 09 months and 06 days and as such, the case of the applicants/appellants is covered by the ratio in Dharam Pal Vs. State of Haryana, 1999 (4) R.C.R (Criminal) 600.

9. There are fairly arguable points on the merits, in the main appeal, which has already been admitted. Without commenting upon the merits of the case and keeping in view the period of incarceration already undergone by the applicants; as well as considering the fact that the case of the applicants is covered by the ratio of law in