ANU MALHOTRA, J.

1. This appeal has been instituted by the appellant Ashok Bind son of Shri Ram Nain Bind assailing the impugned judgment dated 23.09.2016 and impugned order on sentence also dated 23.09.2016 of the learned Special Judge-2, NDPS Act (Central District), Tis Hazari Courts, Delhi in Sessions Case No. 100/2013 in relation to FIR No. 99/13, P.S. NDRS. Vide the impugned judgment dated 23.09.2016, the accused/the appellant herein Ashok Bind was convicted for the commission of the offence punishable under Section 302 of the Indian Penal Code (IPC), 1860 and vide the impugned order on sentence also dated 23.09.2016, he was sentenced to imprisonment for life and to pay a fine of Rs. 10,000/- and in default of the payment of fine to further undergo simple imprisonment for two months. The accused/the appellant herein Ashok Bind was also granted the benefit of the period of detention already undergone in terms of Section 428 Cr.P.C, 1973.

2. Along with the Criminal Appeal no. 89/2017, an application Criminal M.A. No. 1357/2017 seeking condonation of delay of 70 days was filed, which was allowed vide order dated 24.01.2017. The appeal was thus admitted and notice of Criminal M. (Bail) No. 142/2017 was issued to the State. The nominal roll of the accused/the appellant herein Ashok Bind was called for vide order dated 27.03.2017, which has since been received, which indicates that as per the nominal roll dated 20.03.2017, as on 20.03.2017, the accused/the appellant herein Ashok Bind had undergone 03 years 09 months and 11 days of incarceration. The nominal roll of the accused/the appellant herein Ashok Bind further indicates that the overall jail conduct of the accused/the appellant herein Ashok Bind in the jail had been satisfactory.

3. Vide orders dated 27.03.2017 and 28.03.2017 in Criminal M. (Bail) No. 142/2017, it was considered essential that the accused/the appellant herein Ashok Bind be produced, who was produced before us on 31.03.2017. During the course of the hearing, with the consent of the counsel for the appellant and the State, the appeal itself has been taken up for disposal.

FACTS ALLEGED

4. The charge-sheet was instituted under Section 302 of the Indian Penal Code (IPC), 1860 on 31.08.2013 and was committed vide order dated 09.09.2013 to the Court of Sessions, where after the charge of allegations was framed on 15.10.2013 by the Special Judge-2, NDPS Act (Central District), Tis Hazari Courts, Delhi against the accused/the appellant herein Ashok Bind to the effect that on the intervening night of 09/10.06.2013 at about 12.00 midnight at Platform No. 1, in front of the SS office, New Delhi Railway Station within the jurisdiction of PS New Delhi Railway Station, New Delhi, the accused/the appellant herein Ashok Bind had committed the murder of Uday Kumar (since deceased) son of Bagappa aged 25 years, by hitting him with a stone and that he had thereby committed an offence punishable under Section 302 of Indian Penal Code (IPC), 1860, to which the accused/the appellant herein Ashok Bind pleaded not guilty and claimed trial.

PROSECUTION VERSION

5. The prosecution version set forth against the accused/the appellant herein Ashok Bind was to the effect that Uday Kumar (since deceased) and his friend Sh. Purushottam M.N.(PW-1) had come to Delhi on 09.06.2013 to appear in an examination held by DSSSB. After appearing for the same, they both reached at Platform No. 1 for their return journey, and, having bought their platform tickets they entered the railway station. They were yet to purchase their travelling tickets and had taken seats on a bench in front of the SS office, Platform No. 1. After sometime, Uday Kumar (since deceased) lay down on the bench and fell asleep and his friend Sh. Purushottam M.N.(PW-1) continued to remain seated and awake.

6. In the meantime a person i.e. the accused/the appellant herein Ashok Bind along with a bag came at about 12.30 midnight and asked them to get up and insisted that he wan