ANIL KUMAR, J. –

1. This is an application by the appellant/applicant seeking suspension of his sentence and for enlarging him on bail during the pendency of the present appeal.

2. The appellant has filed the above noted appeal against his conviction and sentence by orders dated 3rd February, 2010 and 18th February, 2010 under Section 302 of Indian Penal Code and a fine of Rs. 2,000/- and in default to further undergo rigorous imprisonment for a period of three months. He has also been convicted and sentenced under Section 404 IPC for the period of one year and a fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for a period of one month with all the sentences running concurrently.

3. The appellant/applicant has contended that he has already undergone imprisonment of six years three months and six days as on 1st September, 2010 and his family consists of his three elder brothers, one younger brother and an old aged mother as his father has expired and he is not married. According to him, he hails from a poor segment of the society. He also stated that he has never jumped bail and has never been declared a proclaimed offender. According to the appellant, he was not present at the spot and he has been falsely implicated.

4. According to the learned counsel for the applicant no motive can be imputed to the applicant, as from the shop of the deceased of medical equipment, nothing was found missing. From the alleged recovery of the wrist watch which is a common wrist watch of HMT and the recovery memo, not being signed by any independent witness, nothing substantial can be imputed against the applicant.

5. According to the applicant, the wife of the deceased was not called to identify the HMT wrist watch of the deceased which casts a grave shadow of doubt on the authenticity of the alleged recovery. Similarly, the applicant has contended that the alleged recovery of pipe and razor at the instance of the accused is also not trustworthy as no „Panchnama? had been prepared and no witness was associated while making the alleged recovery which is in violation of Section 100(4) of the Cr. P.C.

6. The applicant/appellant has also disclosed that his finger prints were not found from the place where deceased was lying injured and from where chance print were picked up. From the scene of crime, the chance prints which were lifted were only of Mukesh, another accused. The appellant/applicant is not related to Mukesh, the other co-accused.

7. The learned counsel Ms. Verma has very strongly contended that recoveries of ordinary articles like the HMT watch and an inexpensive ring could not be the basis of conviction of the applicant as there is no other evidence. Reliance has been placed by her on JT 2008(1) SC 191, Mani v. State of Tamil Nadu; AIR 1977 SC 7453; Narsinhbai Haribhai Prajapati v. Chhjatrasinh and Ors. and AIR 1963 SC 1113 Prabhu v. State of UP. The learned counsel has also placed reliance on AIR 1956 SC 54, Sanwat Khan and Anr. v. State of Rajasthan to contend that even if the stolen property is believed to have been recovered from the applicant this per se will not lead to the inference that he is the murderer of the deceased. In Sanwat Khan (supra), the Supreme Court had held that if the only evidence against the accused person is the recovery of stolen property and the circumstances may indicate the theft, it will not be safe to draw the inference that the person in possession of stolen property is the murderer, as suspicion cannot take place of proof. The Supreme Court at page-56 of the said judgment has held as under:- “ In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person i