MOINUDDIN Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) The appellant/applicant has filed the above noted application under Section 389 (2) of Criminal Procedure Code for suspension of his sentence pending his appeal against the order of conviction dated 5th June, 2010 and sentencing him for imprisonment of life and a fine of Rs.5,000/- and in default to undergo further rigorous imprisonment for 1 years and sentence of 3 years rigorous imprisonment under Section 201 of Indian Penal Code with a fine of Rs.1000/- and to undergo further rigorous imprisonment of 6 months in default of payment of fine by order dated 23rd June, 2010, in Sessions Case No.5 of 2007 arising out of FIR No.640 of 2006, under Section 302 of Indian Penal Code, P.S.Nizamuddin, Delhi.

(2.) The appellant/applicant has contended that he was arrested on 21st September, 2006 from his native Village Narainpur, Kushinagar (U.P.) and he has been in jail since then. According to the nominal roll of the appellant/applicant, he has been incarcerated as on 23rd October, 2010 for 4 years and 27 days and he has earned remission for a period of 2 months 10 days and his conduct in the jail is satisfactory.

(3.) The appellant/applicant has further contended that he has been convicted by the trial court without any material on record against him and his case is based on circumstantial evidence and the prosecution has failed to prove any circumstance against the appellant/applicant inculpating him, and therefore, he is entitled to be released on bail pursuant to suspension of his sentence during pendency of the present appeal. It is also contended by the learned counsel for the applicant that testimony of Rubina about deceased being last seen with the accused has been held to be suspicious by the Trial Court itself. Learned counsel for the appellant/applicant has very emphatically contended that the last seen evidence in case of the appellant/applicant has been disbelieved and recovery of key of the room of the deceased from his body does not implicate him. Referring to the register of the guest house, it is contended that the entries made therein negates the case of the prosecution and documentary evidence shall prevail over the oral evidence in this regard.