The court's decision was primarily based on the consideration of the long period of incarceration already undergone, the appeal not likely to be heard in the near future, and the fairly arguable points on the merits in the main appeal.

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,