JUDGMENT : 1. 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): Name of the accused appellant Offence for which convicted Sentence, fine and default sentence awarded Sanjay Acharya Manoj Prajapat Section 302/34 IPC Life imprisonment 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 Arms Act Two years’ rigorous imprisonment alongwith a fine of Rs.2,000/- and in default of payment of fine, additional rigorous imprisonment of twenty days 2. 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 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. 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 Section 65-B (4) of the Evidence Act could be ignored. 4. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record. 5. 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. 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. 6. 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. 6. 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'kZ ih-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 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[kkiढ+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. 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. 8. 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. 9. 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. 10. 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. 10. 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. 11. 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. 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. 12. 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. 13. 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.