Manoj vs State Of Rajasthan
2022 Latest Caselaw 9035 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 255/2022

Manoj S/o Kishan Prajapat, Aged About 31 Years, R/o Kanwa Kheda, Kachi Basti, Police Station Kotwali, Bhilwara (Rajasthan) (At Present Lodged In Central Jail, Ajmer)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent Connected With D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 243/2022 Sanjay Acharya S/o Sh. Sanwarmal Acharya, Aged About 25 Years, Rajaji Ka Kareda, Dist. Bhilwara (Raj.). (Presently Lodged In Central Jail, Ajmer).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Vineet Jain, Sr. Advocate assisted by Mr. Rajiv Bishnoi Mr. Jamwant Gurjar

For Respondent(s) : Mr. B.R. Bishnoi, PP

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

12/07/2022

The appellants herein have been convicted and sentenced as

below vide judgment dated 04.03.2022 passed by the learned

Additional Sessions Judge No.2, Bhilwara in Sessions Case

No.10/2015 (116/2015):

                                        (2 of 9)                [SOSA-255/2022]




Name of      the Offence for which Sentence,                    fine   and
accused          convicted         default                        sentence
appellant                          awarded
Sanjay Acharya    Section 302/34 IPC              Life        imprisonment
Manoj Prajapat                                    alongwith   a    fine    of
                                                  Rs.20,000/- and in default
                                                  of    payment   of    fine,
                                                  additional        rigorous
                                                  imprisonment of one year
                  Section 397/34 IPC              Seven   years'       rigorous
                                                  imprisonment
                  Section 398/34 IPC              Seven   years'       rigorous
                                                  imprisonment
                  Section 120-B IPC               Three     years'  rigorous
                                                  imprisonment alongwith a
                                                  fine of Rs.2,000/- and in
                                                  default of payment of fine,
                                                  additional        rigorous
                                                  imprisonment     of    one
                                                  month
Manoj Prajapat    Section 3/25 of the Two      years'   rigorous
                  Arms Act            imprisonment alongwith a
                                      fine of Rs.2,000/- and in
                                      default of payment of fine,
                                      additional        rigorous
                                      imprisonment of twenty
                                      days

These two applications under Section 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 21.05.2015 at about 10:30 in the morning.

Three assailants came around on a motorcycle with their faces

(3 of 9) [SOSA-255/2022]

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 Section 65-B of the

Evidence Act. They urged that the Investigating Officer collected

the certificate under Section 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.

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

(4 of 9) [SOSA-255/2022]

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 Section 65-B (4) of the Evidence Act could be

ignored.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record.

It is not in dispute that no witness of prosecution could

identify the assailants who fired the fatal gunshot at the deceased

Ashok in the incident dated 21.05.2015. The prosecution claimed

that after the accused appellants had been arrested in this case,

the Investigating Officer Mr. Dungar Singh (P.W.-31) recorded their

informations under Section 27 of the Evidence Act and acting in

furtherance thereof, he proceeded to the spot with the accused

and prepared the memorandum exhibit P-11 purporting to

identification of the place of incident at the instance of the three

accused, namely, Manoj, Sanjay and Bherulal. In this

memorandum extensive reference is made to the confessions

made by the accused that they had committed the crime at hand.

(5 of 9) [SOSA-255/2022]

We are of the firm view that the document exhibit P-11 is

inadmissible in evidence because the place of incident was already

known to the Investigating Officer and could not have been

rediscovered. That apart, the trial Court read this document as

giving evidence of extra judicial confession against the accused. It

was concluded by the trial Court in para 65 of the impugned

judgment as below:-

"fo}ku~ vf/koDrkx.k cpko i{k dh vksj ls cgl ds nkSjku mBk, x, mDr rdksZ ds ifjizs{; esa ;fn vuqla/kku vf/kdkjh }kjk nh xbZ lk{; dk voyksdu&fo"ys'k.k fd;k tk, rks vuqla/kku vf/kdkjh Mwaxjflag ihM-31 us viuh lk{; esa eq[; :i ls ;g dFku fd;k gS fd ^^vfHk;qDrx.k dh vksj ls nh xbZ lwpuk ds vk/kkj ij QnZ rLnhd ekSdk ?kVukLFky izn"kZih- 11 eqfrZc fd;k x;kA ftlds vuqlkj ,Dl&1 LFkku ij mDr rhuksa vfHk;qDrx.k }kjk dsf"k;j dks ywVus dh ;kstuk fcuk uacjh ubZ Iylj eksVjlkbfdy eqyfte ;"k }kjk pykuk] ihNs HkS: o eukst dks fcBkdj vtesj jksM+ dh rjQ jokuk gksuk o lat; }kjk LdkfiZ;ksa xkM+h uacj vkjts 06&;w,&1728 dks vfHk;qDr HkS:] eukst o ;"k dh lgk;rkFkZ ihNs&ihNs ys tkuk rFkk ,Dl&2 LFkku ij LdkfiZ;ksa o eksVjlkbfdy jksddj lat; }kjk HkS: vkpk;Z dks fiLVy o dkjrwl nsuk] ,Dl&3 LFkku ij eksVjlkbfdy [kM+h dj eukst] HkS: o ;"k } kjk dsf"k;j dk bartkj djuk] ,Dl&4 LFkku ij lat; }kjk viuh LdkfiZ;ksa [kM+h dj eukst] HkS: o ;"k dh o dsf"k;j ds vkus dh xfrfof/k;ksa ij fuxjkuh j[kuk] ,Dl&5 LFkku dsf"k;j }kjk yksfg;k vkWVkseksckbZYl ls dsl dk cSx ysdj vius LdwVj ds ikl vkus ij blh LFkku ij ;"k }kjk viuh eksVjlkbfdy ykdj jksduk] Loa; dk eksVjlkbfdy dks LVkZV djds cSBs jguk] HkS: o eukst iztkir dk tkuk] eukst }kjk cSx Nhuk >iVh djuk o HkS: }kjk dsf"k;j ij

(6 of 9) [SOSA-255/2022]

fiLVy ls Qk;j djuk] ?kVuk ds rqjUr ckn HkS: o eukst dk ;"k dh eksVjlkbfdy ij cSBuk o vtesj dh rjQ Hkkxuk rFkk lat; ckn ?kVuk eksVjlkbZfdy dk ihNk dj ,Dl&6 LFkku ij ds"ko vLirky ds ikl eksVjlkbfdy ls HkS: o eukst dks mrkjdj viuh LdkfiZ;ksa xkM+h esa fcBkdj ?kj NksM+uk crk;kA** mDr izn"kZih-11 ij lHkh vfHk;qDrx.k ds gLrk{kj ekStwn gSA bl lca/k esa vfHk;kstu i{k dh vksj ls ihM-9 vkyksd tSu dks ijhf{kr djok;k x;k ftlus dFku fd;k fd fnukad 29-06-2015 dks "kke 6 ctsa v.kZo eksVlZ ds ckgj [kM+k Fkk ml le;

Fkkuk lqHkk'kuxj dh xkM+h vkbZ ftlesa rhu yksx lat;] HkS: o ;"k Fks mUgksusa iqfyl dks crk;k fd blh ?kVukLFky ij dsf"k;j v"kksd dqekj ij geus :i, dk cSx ywVus dh fu;r ls fiLrksy ls Qk;j fd;k vkSj Nhuk&>iVh dhA iqfyl us ekSds ij fy[kki<+h dj ekSdk rLnhd ?kVukLFky izn"kZih-11 cuk;k ftl ij , ls ch esjs gLrk{kj gSA bl xokg }kjk nh xbZ lk{; ij vf/koDrk vfHk;qDrx.k us vkifRr izdV dh fd uD"ksa ekSds esa tks rF; of.kZr fd, x, gS oks iqfyl vf/kdkjh ds le{k vfHk;qaDr dh laLohd`fr gS] tks lk{; esa xzkg~; ugh gSA mDr vkifRr dk fuLrkj.k U;k;ky; }kjk cjoDr cgl vafre fd, tkus dk vkns"k fn;k FkkA vf/koDrk vfHk;qDrx.k }kjk mDr vkifRr bl xokg ds c;ku ds nkSjku fdl vk/kkj ij dh xbZ bl lca/k esa mudh vksj ls dksbZ rdZ ugh fn;k x;k gSA blds vykok bl xokg us vius le{k tks ?kVukdze vfHk;qDrx.k }kjk izdV fd;k x;k mlds vk/kkj ij gh dFku fd, gS] ftlsa vfHk;qDr laLohd`fr dSls ekuk tk ldrk gSA blds vykok izn"kZih-11 esa of.kZrkuqlkj ?kVukdze vfHk;qDrx.k }kjk ?kfVr ugh fd;k x;k gks vFkok mUgksaus mDr QnZ ij gLrk{kj ugh fd, gksa] ,slk cpko i{k dh vkSj ls dksbZ rdZ ugh fn;k x;k gSA"

(Emphasis supplied)

(7 of 9) [SOSA-255/2022]

The trial Court held that the accused, neither denied their

signatures on the documents nor did they dispute the contents of

exhibit P-11 and thus, the document deserved to be read as

substantive piece of evidence against the accused. This finding of

the trial Court blatantly violates all principles of criminal

jurisprudence and the Evidence Act. The document exhibit P-11

was prepared by the Investigating Officer for verification of the

place of incident at the instance of the accused during the course

of investigation and any confessional narrative recorded therein

would clearly be hit by Section 25 of the Evidence Act and thus,

could not even have been permitted to be narrated in the evidence

of the Investigating Officer. The objection raised by the defence on

this issue was perfectly justified and ought to have been

sustained. We are of the firm view that the presiding officer acted

in gross disregard to the principles of the Evidence Act while

recording the findings at para No.67 of the impugned judgment.

The Investigating Officer Dungar Singh PW-31 gave

divergent statements admitting at one place that no certificate

was procured from the telecom company regarding the call detail

records. Later on, he stated that the certificate under Section 65-B

was procured subsequently but it was not available on file. The

trial Court contorted the ratio of the "Hon'ble Supreme Court's

judgment" in the case of Arjun Pandit Rao Kotkar V/s Kailash

Kushan Rao Gorantyal holding that even if the certificate under

Section 65-B of the Evidence Act was not proved, the argument of

the defence counsel that call detail records could not be admitted

in evidence was not tenable. This finding of the trial Court is also

illegal and perverse on the face of the record.

(8 of 9) [SOSA-255/2022]

As a consequence of the above discussion, we are of the firm

opinion that the appellants have available to them strong grounds

for assailing the impugned judgment of conviction. As per the

reply of the State, the appellants do not have any criminal

antecedents. They were on bail during the course of trial and did

not misuse the liberty so granted to them. Hearing of the appeal is

likely to consume time.

In this background, and having regard to the overall facts

and circumstances of the case, this Court finds it a fit case to

suspend the sentences awarded to the appellant applicants by the

trial Court during the pendency of the appeal and to release them

on bail.

Accordingly, the applications for suspension of sentences

filed under Section 389 Cr.P.C. is allowed and it is ordered that the

sentences passed by the learned Additional Sessions Judge, No.2,

Bhilwara vide judgment dated 04.03.2022 in Sessions Case

No.10/2015 (116/2015) against the appellant-applicants

(1) Manoj S/o Kishan Prajapat and (2) Sanjay Acharya S/o

Sanwarmal Acharya shall remain suspended till final disposal of

the aforesaid appeal and they shall be released on bail, provided

each of them executes a personal bond in the sum of Rs.50,000/-

with two sureties of Rs.25,000/- each to the satisfaction of the

learned trial Judge for their appearance in this court on

16.08.2022 and whenever ordered to do so till the disposal of the

appeal on the conditions indicated below:-

1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.

(9 of 9) [SOSA-255/2022]

2. That if any of the applicant changes the place of residence, he/she will give in writing his/her changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

The learned trial Court shall keep the record of

attendance of the accused-applicants in a separate file. Such file

be registered as Criminal Misc. Case related to original case in

which the accused-applicants were tried and convicted. A copy of

this order shall also be placed in that file for ready reference.

Criminal Misc. file shall not be taken into account for statistical

purpose relating to pendency and disposal of cases in the trial

court. In case any of the accused applicants does not appear

before the trial court, the learned trial Judge shall report the

matter to the High Court for cancellation of bail.

                                   (KULDEEP MATHUR),J                                      (SANDEEP MEHTA),J


                                    147-Pramod/-









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