MUKESH Vs. STATE

JUDGEMENT

(1.) This is an application filed by the Applicant/Appellant for suspension of sentence. The Applicant has been convicted by the impugned judgment dated 31st July, 2017 of the trial Court for offences under Section 302/404/411 IPC.

(2.) The nominal roll of the Applicant submitted by the Jail Authorities shows that as on 8th December, 2017, the Appellant/Applicant has undergone 7 years, 11 months and 25 days of imprisonment.

(3.) With the assistance of learned counsel for the parties, the Court has examined the impugned judgment and the order on sentence of the trial Court. The case was one of circumstantial evidence. The Applicant who was working as a driver with the deceased for about a period of two months was stated to have been last seen with him, as stated by Sushma (PW-4). Additionally, the prosecution has relied on the recovery of weapon used to carry out the murder i.e. an iron rod and the recovery of stolen jewellery from the house of the Appellant/Applicant. The prosecution attempt to rely on the call detail records ('CDRs') of the mobile phones used by the Appellant/Applicant, PW-4 and the deceased to show that they were all present together between 3 to 4.30 pm on the date of murder i.e. 4th December, 2009 failed with no certificate under Section 65-B of the Indian Evidence Act, 1872 being produced to authenticate the CDRs. Further, the evidence of chance-prints lifted from the scene of crime was rejected by the trial Court since the mandatory requirement of obtaining an order from the Magistrate under Sections 4 and 5 of the Identification of Prisoners Act, 1920 was not fulfilled as explained by this Court in Sapan Haldar v. State, 2012 191 DLT 225. It also requires to be noticed at this stage that the prosecution, even according to the trial Court, failed to prove the motive for the crime.