The court may suspend the sentence of an appellant based on the totality of circumstances, including the concession of suspension of sentence granted to co-accused and the period of substantive sentence already served by the appellant.

Virender Singh, J. - The present applicant-appellant along with his three co-accused, namely, Sahab Singh, Parmal Singh and Subhash has been convicted by the learned Additional Sessions Judge, Kurukshetra, vide impugned judgment dated 8.10.2002 under Sections 148/307/323/324 read with Section 149 Indian Penal Code.

2. As stated by the learned counsel for the appellant and not disputed by the learned State counsel that the present appellant is in custody for the last about 14 months after the conviction. Learned counsel for the applicant- appellant otherwise states that during trial also the present applicant remained in custody for sometime.

3. Sahab Singh and Parmal Singh appellants No. 1 and 3 were granted the concession of suspension of sentence by this Court on 29.8.2003. The said order reads as under :-

"Learned counsel for the appellant contended that appellant No. 1 has been attributed simple injuries. He further contended that occurrence has taken place at 5 p.m. on 8.6.1993 as per the defence, whereas the case of the prosecution is that occurrence has taken place at 7.30 p.m. on the same day. He pointed out that after the occurrence, Subhash Chand and Parmal Singh have got themselves medically examined at 5.45 p.m. and 6.05 p.m. which is clear from the M.L.R. He submitted that learned trial court has recorded the finding that appellant might have suffered the injuries prior to the occurrence to make out a cross-version case. He submitted that the prosecution has tried to suppress the genesis of occurrence.

In view of the above, sentence of appellants is suspended on their furnishing personal and surety bonds to the satisfaction of Chief Judicial Magistrate, Kurukshetra."

4. Thereafter, Subhash, the other co-accused also knocked the doors of this Court for the same relief by filing a separate appeal bearing Criminal Appeal No. 1989-SB of 2002. He was also granted bail by this Court vide order dated. 6.10.2003. The said order reads as under:-

"Learned counsel for the appellant Subhash Chand, relies upon the order dated August 29, 2003 passed by this court in Criminal Misc. No. 23541 of 2003 in Criminal Appeal No. 1939-SB of 2002, whereby the co-accused of the appellant have been directed to be released on bail. It is contended that, in fact, there are no differentiating circumstances and as such the appellant is also entitled to be released on bail.

Without commenting upon the merits of the controversy and keeping in view the order dated August 29, 2003, the appellant is also directed to be released on bail to the satisfaction of Chief Judicial Magistrate, Kurukshetra."

5. I have heard Mr. R.S. Cheema, learned Senior Advocate and Mr. Bijender Dhankar, learned State counsel at length. The impugned judgment has also been perused by me.

6. Besides relying upon Annexures P-2 and P-3 vide which the co-accused of the present applicant has been granted bail, the learned counsel for the applicant-appellant also relies upon Annexure P-1, the statement of Dilawar Singh injured who was produced as PW11 by the prosecution agency during trial.

7. Mr. Cheema contends that as per the prosecution case initially set up by the complainant, the present applicant-appellant has been shown empty handed. Subsequently, when Dilawar Singh injured appeared in the witness box as PW11, he made a statement to the effect that the present appellant was armed with a gandasi and caused injury to him. Mr. Cheema has also pointed out the confronted portion in this regard where this fact is not recorded. From this, Mr. Cheema wants to develop that in fact no injury has been attributed to him and he has been convicted with the aid of section 149 Indian Penal Code. Even otherwise, while relying upon Annexure P-3, Mr. Cheema states that the case of the present applicant-appellant is at par with Subhash Chand who had already been granted the concession of suspension of sentence. So far as factual position is concerned, learned State counsel is not in a po