The main legal point established in the judgment is the inadmissibility of confessions without the mandatory certificate under Section 65-B of the Evidence Act and the improper admission of call detail records as evidence.

JUDGMENT :

1. The instant application for suspension of sentences under Section 389 Cr.P.C. has been preferred by appellant-applicant Yash Kumar @ Prakash S/o Shri Hanuman Prasad Agrawal who has been convicted and sentenced as below vide judgment dated 04.03.2022 passed by learned Addl. Sessions Judge No.2, Bhilwara in Sessions Case No.10/2015 (116/2015):

2. Learned Public Prosecutor has chosen not to file reply to the application for suspension of sentences and proposes to argue the matter orally.

3. The applications for suspension of sentences filed on behalf of the co-accused Manoj and Sanjay Acharya have been accepted by this Court vide order dated 12.07.2022 with the following observations:-

"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.

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 tha