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