MANOJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellants herein have been convicted and sentenced as below vide judgment dtd. 4/3/2022 passed by the learned Additional Sessions Judge No.2, Bhilwara in Sessions Case No.10/2015 (116/2015):

(2.) These two applications under Sec. 389 (1) CrPC have been preferred seeking suspension of sentences and release on bail of the appellant-applicants during pendency of the appeal. Learned Senior Advocate Mr. Vineet Jain assisted by Mr. Rajiv Bishnoi representing the appellant Sanjay Acharya and learned counsel Mr. Jamvant Gurjar representing the appellant Manoj, submitted that as per the prosecution case, the deceased Ashok Vyas, who was working as cashier at the Lohiya Automobiles, Bhilwara was proceeding from the showroom with a bag containing cash on 21/5/2015 at about 10:30 in the morning. Three assailants came around on a motorcycle with their faces covered and fired a gunshot, which hit Ashok on his hip area, as a result whereof Ashok fell down unconscious. People from the neighbouring area collected on hearing the sound of gunshot and thereupon, the assailants escaped on the motorcycle, on which they had come. Mr. Jain and Mr. Gurjar pointed out that it is an admitted case that none of the assailants was identified by any prosecution witness during the course of investigation or at the trial. They contended that the appellants have been convicted by the trial Court in gross disregard of settled principles of criminal jurisprudence by placing reliance on the confessions of the accused persons as recorded by the investigating officer in the site inspection memo (exhibit P-11) and the call detail records, which were treated as admissible without the prosecution, bringing on record the mandatory certificate under Sec. 65-B of the Evidence Act. They urged that the Investigating Officer collected the certificate under Sec. 65-B of the Evidence Act, but the same was not filed on record. Mr. Jain and Mr. Gurjar, thus, urged that the appellants have been convicted by the trial Court merely on whims and fancies. They are in custody for a period in excess of three years. The accused were on bail during trial and did not misuse the liberty so granted to them. On these submissions, they implored the Court to accept the applications for suspension of sentences and direct enlargement of the appellants on bail during pendency of the appeal.

(3.) Learned Public Prosecutor has filed reply to the applications for suspension of sentences, as per which, the appellants do not have any criminal antecedents. During the course of arguments, the learned Public Prosecutor candidly conceded that the prosecution did not lead any direct evidence so as to link the appellants with the crime. He, however, submitted that the trial Court was justified in treating the facts recorded by the Investigating Officer Mr. Dungar Singh (PW-31) in the site inspection memo (exhibit P-11) to be a voluntary extra-judicial confession made by the accused in presence of the independent witness Alok Jain (PW-9). He further submitted that the call detail records collected by the Investigating Officer also give strong indication about involvement of the accused in the offence and hence, the trial Court was justified in observing that it was an exceptional case, wherein the requirement of proving the certificate under Sec. 65-B (4) of the Evidence Act could be ignored.