JUDGMENT

Mr. Kuldeep Tiwari, J. (Oral)

This is the first application, under Section 389 Cr.P.C., for suspension of sentence of the applicant-appellant, during the pendency of the appeal.

2. The applicant-appellant was convicted by the learned Additional Sessions Judge, Jind, for offence punishable under Section 302 read with Section 34 of IPC, vide judgment dated 11.02.2020, and, vide a separate sentencing order dated 13.02.2020, he was sentenced to undergo imprisonment for life and to pay fine of Rs.1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for 6 months.

3. At the very outset, the learned counsel for the applicantappellant relied upon a judgment of this Court passed in the case of " Dharam Pal v. State of Haryana , 1999(4) RCR (Criminal) 600". He further submitted that the applicant-appellant has undergone more than 5 years of actual sentence (including custody as under-trial) imposed upon him and the appeal is not likely to be heard soon in future.

4. The learned counsel for the applicant-appellant has submitted that though the instant case is based upon circumstantial evidence, however, not even a single circumstance has been proved against the applicant-appellant, which could link him with the commission of alleged murder of deceased Monu. Moreover, the only recovery effected from the applicant-appellant is of two mobiles, which cannot, by even the farthest stretch of imagination, be linked with the commission of the alleged crime. As a matter of fact, the recovery of alleged weapon of crime, i.e. Chunni, was effected from the co-accused Binder Kaur @ Kulwinder Kaur, wife of the deceased. Nonetheless, there is no material on record to establish existence of any illicit relationship between the applicant-appellant and the coaccused Binder Kaur @ Kulwinder Kaur, which is allegedly the motive behind commission of murder of deceased Monu.

5. On the other hand, by filing custody certificate of the applicantappellant issued by Deputy Superintendent, District Prison, Nuh (Mewat), the learned State counsel has opposed the instant application and has submitted that the applicant-appellant is involved in another case also under the NDPS Act, i.e., FIR No.287 dated 13.10.2021, under Section 20 -61-85 of NDPS Act, registered at P.S. Civil Line, Jind. Though the learned State counsel has opposed the instant application, however, he has not disputed the fact that the case of applicant-appellant is covered by the ratio of Dharam Pal's case (supra).

6. We have examined the custody certificate, placed on record by the learned State counsel as well as the judgment (supra). Perusal of the custody certificate reveals that the applicant-appellant has undergone actual sentence of 05 years 03 months and 16 days, i.e. a period of 02 years 02 months and 26 days as under-trial and 03 years 04 months and 20 days post-conviction. It further reveals that the total sentence (including remission) undergone by the applicant-appellant comes out to be 05 years 11 months and 03 days.

7. Insofar as the pendency of another case, under the NDPS Act, against the applicant-appellant is concerned, the custody certificate explicates that the applicant-appellant has been granted the concession of bail in that case by the learned trial Court vide order dated 20.01.2023 and the trial in that case is still pending.

8. In view of the aforesaid circumstances coupled with the fact that the case of the applicant-appellant is covered by the ratio of the judgment in Dharam Pal's case (supra) and that the appeal, which was admitted by a Coordinate Bench of this Court on 22.03.2023, is not likely to be heard in the near future, the instant application is a