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1. This is the fifth application filed under Section 389 of Cr.P.C. by the applicant/appellant-Sunil Kumar seeking suspension of sentence imposed upon him by learned Additional Sessions Judge, Palwal, in Sessions Case No.RBT-101 of 2010/2013, pertaining to FIR No.314 dated 18.09.2009 under Sections 148, 302, 216, 120-B IPC read with Section 149 IPC and Section 25 of the Arms Act, registered at Police Station Hathin, Palwal, vide judgement of conviction dated 28.05.2013 and order on quantum of sentence dated 30.05.2013.

2. Vide the said judgment and order, the applicant/appellant has been convicted by the learned Sessions Judge for committing offence under Section 302 IPC read with Section 120-B IPC and sentenced to undergo imprisonment for life with fine of ?20,000/- and for committing offence under Section 25 of the Arms Act, he was sentenced to undergo imprisonment for a period of two years with fine of ?2,000/-.

3. Challenging the said judgment and order, the applicant-appellant has filed appeal (CRA-D-782-DB-2013) before this Court, which has been admitted on 29.07.2013 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, the applicant/ appellant has undergone a total period of custody of 11 years 04 months and 19 days including post conviction custody period of 08 years and 29 days.

5. Perusal of the custody certificate further reveals that applicant/ appellant has been granted bail in FIR No.66 (CR No.300/2008)/2009, under Sections 2/3 of Gangster Act, Police Station Koshi, Mathura; FIR No.294 of 2007, under Sections 363, 366, 504, 506 and 376 IPC, Police Station Koshi, Mathura and in FIR No.136 of 2008, under Sections 147, 148, 149, 302, 307 and 506 IPC, Police Station Koshi, Mathura. He has been acquitted in FIR No.19 dated 10.02.2015, under Sections 302, 201, 392, 120-B IPC and Section 34, 25/54/59 of the Arms Act, Police Station Chhansa, Faridabad; FIR No.31 dated 25.01.2017, under Section 42 of Prisons Act, Sections 115, 116 and 120-B of IPC, Police Station Sadar Ballabgarh, Faridabad and FIR No.459 of 2007, under Sections 147, 148, 149, 307, 504 and 506 IPC, Police Station Koshi, Mathura.

6. We have heard learned counsel for the applicant and learned counsel for the State and have gone through the record minutely.

7. Learned counsel for the applicant/appellant has contended that the applicant/appellant and the other co-accused were falsely implicated in the present case only on the basis of suspicion and there was deep rooted enmity between the family of the applicant/appellant and the deceased. Earlier father of the applicant/appellant was murdered by Gian Singh (since deceased) and brother of said Gian Singh was allegedly murdered by Bachhu and others regarding which the trial is pending. He has contended that as per the prosecution version, the police had received the telephonic information regarding Gian Singh being shot at Canal and he was lying there in a critical condition. But the trial Court has not appreciated that aspect, it is not the case of the prosecution that the said phone call was made by Rajbir, the alleged eyewitness of the occurrence or any of the other prosecution witnesses. So from this, it is made out, that when the occurrence took place, there was no one to witness the same and it is a case of a blind murder but converted and presented to be a case of eyewitness account. He has also contended that the medical evidence does not corroborate the ocular prosecution version. As per PW4-Rajbir, the shots were fired from the distance of 5-6 meters, whereas the presence of blackening and tattooing over the injuries conclusively proved that the shots were fired from a distance of maximum about two feet, which make testimony of PW4-Rajbir doubtful. Further, Zile Singh, Sarpanch, who allegedly gave the information regarding the injuries being caused to Gian Singh was the most material and independent witness of the occurrence, being the first informant regarding the occurrence to the police, but this witness has been withheld by the prosecution, which has adversely effected the case of the prosecution. There is also a delay of seven hours in the registration of the FIR and the case was registered after due deliberations against the applicant/appellant and others and because of old enmity, they suspected them to be the assailants. As per the FSL report, the weapons allegedly recovered from the applicant/ appellant did not match with the empties recovered from the place of occurrence or the bullet allegedly recovered from the body of the deceased. 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 and his long period of custody, the applicant/ appellant deserves the concession of bail and the remaining sentence of the applicant/appellant may be suspended in the interest of justice, till decision in the main appeal.

8. On the other hand, learned State counsel has strongly refuted the contentions of learned counsel for applicant/appellant. He has contended that as guilt of the applicant/appellant has been established beyond the shadow of reasonable doubt, so he has been rightly convicted by the learned trial Court. As he is involved in other cases also so he is not entitled to the relief of suspension of sentence.

9. However, it has been fairly conceded by learned State counsel that the applicant/appellant has undergone a total period of custody of 11 years 04 months and 19 days including post conviction custody period of 08 years and 29 days and as such, the case of the applicant/appellant is covered by the ratio in Dharam Pal Vs. State of Haryana, 1999 (4) R.C.R (Criminal) 600.

10. If the applicant is guilty of offences in some other cases also, then he can be proceeded against appropriately, in accordance with law as he is facing trial in those cases. As the appellant has undergone a substantial portion of the sentence and appeal in question is not likely to be heard in near future as appeals instituted much prior in time are still pending, a very peculiar situation would arise if the applicant undergoes the remaining sentence and ultimately earns acquittal. On the other hand, if this appeal is dismissed, then he can be ordered to be re-arrested and made to undergo the remaining sentence. So, keeping this in view and also taking into consideration that 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 long period of incarceration already undergone by the applicant; and as sentence of co-accused Bachhu has also been suspended by this Court, as well as considering the fact that the case of the applicant is covered by the ratio of law in Dharam Pal (supra) and the appeal is not likely to be heard in near future, we deem it appropriate to suspend the remaining sentence of the applicant-appellant -Sunil Kumar during pendency of the appeal, subject to his furnishing bail bonds/surety bonds to the satisfaction of the CJM/Duty Magistrate, Palwal.

11. Application is allowed accordingly.

12. However, nothing expressed herein shall have any bearing on the merits of the main appeal.

Application allowed.

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