D.N.PATEL,J - (1.) THE present interlocutory application has been preferred under Section 389(1) of the Code of Criminal Procedure for suspension of sentence awarded to this applicant (appellant No.2), who is original accused No.2 in Sessions Trial No.72 of 2006. The present appellant has been convicted by the Additional Judicial Commissioner, F.T.C.VIII, Ranchi in Sessions Trial No.72 of 2006 mainly for the offence under Section 302 of the Indian Penal Code for life imprisonment as well as other sections of the Indian Penal Code.
(2.) WE have heard the learned counsel appearing for both sides. Looking to the evidences on record, it appears that the whole case of the prosecution is based upon the recovery of part of the dead body of the boy, namely Suraj Kumar @ Dablu. It is alleged by the prosecution that recovery of part of the dead body of the deceased was made at the behest of this appellant. Counsel for the appellant has argued out his case at length and pointed out that original accused No.1's confession was recorded by the police on 13th September, 2005 at 16.30 hours. Thereafter, the original accused No.2, present appellant, was arrested on 13.09.2005 at 21.00 hours and thereafter the present appellant's confession was recorded by the police on the same day at 20.25 hours and part of the dead body was recovered at the behest of the original accused No.1 Rajesh Kumar @ Sethu Yadav. Once that recovery of part of the dead body was over, the present appellant was arrested. Therefore, there is no question of recovery of any dead body at the behest of the present appellant whatsoever arises.
(3.) THUS , the confession made by the present appellant is hit by Section 26 of the Indian Evidence Act, 1872. Otherwise, there was no evidence at all save and except this against the present appellant. The socalled seizure list is also dated 13th September, 2005, upon which the present appellant's signature was taken, but, this has also no value in the eyes of law, because on 13.09.2005 at 17.15 hour, the present appellant was not even arrested. The present appellant was arrested on the same day i.e. on 13th September, 2005 at 21.00 hours. Before that, there was already recovery of the part of the dead body of the deceased. This fact has also been supported by the evidence of the Investigating Officer (PW.9) who has stated that the part of the dead body of the deceased Suraj Kumar @ Dablu was recovered at the behest of accused Rajesh Kumar @ Sethu Yadav. It is also submitted by the learned counsel for the appellant that there was wrong narration of facts in the judgment by the learned trial Court especially in paragraph 14 as well as paragraph 17 of the judgment of the learned trial Court. It has been wrongly mentioned in the judgment that at the behest of both these accused persons of Sessions Trial No.72 of 2006, the dead body was recovered. This is an error apparent on the face of the record and, hence, the very basis of conviction is wrong, so far as the present appellant is concerned and, therefore, the sentence awarded by the learned trial Court may be suspended during pendency and final hearing of this Criminal Appeal.;