Patna High Court
Rajesh Bhardwaj vs The State Of Bihar on 6 March, 2017
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal, Sanjay Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.928 of 2014
Arising Out of PS.Case No. -73 Year- 2007 Thana -BHOJPUR GRP CASE District- BHOJPUR
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Rajesh Bhardwaj Son of Late Ganesh Prasad Singh Resident of 13/2 Anandpuri
(West), Boring Canal Road, Patna, Police Station - Shri Krishnapuri, in the town
and district of Patna
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant : Mr. Surendra Singh, Sr. Advocate
Mr. Ajay Thakur, Advocate
For the Informant : Mr. Sallaudin Khan, Advocate.
For the State : Mr. Satya Narayan Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
and
HONOURABLE MR. JUSTICE SANJAY KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL)
Date:06- 03-2017
The sole appellant has filed the pappeal to assail the
judgment of conviction dated 02.12.2014 and order of sentence dated
04.12.2014passed by learned 4th Additional Sessions Judge, Bhojpur, Ara, in Sessions Trial No. 106 of 2010 arising out of Ara Rail P.S. Case No. 73 of 2007, by which he has been convicted for the offence under Sections 302 and 120B of the Indian Penal Code (for short IPC) and has been awarded sentence of life imprisonment and fine of Rs. 30,000/- for his conviction under Section 302 of the IPC. He has also been awarded life sentence and a fine of Rs. 30,000/- for his conviction under Section 120B of the IPC. There is default clause to the imposition of fine under both the head(s). Both sentences have been ordered to run concurrently.
(2) On the winter morning of 1st December, 2007 a Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 2/45 Constable of GRP (PW4) who was on duty at the Railway Station on signal tampering at Karisath Railway Station from 6 AM to 6 PM found a congregation of few persons on the eastern side of the Railway platform between the up and down railway track. He promptly went there and found the dead body of a girl near pole no. 614/12-14 lying between down line and up line. He found her mobile close to her body separated in three parts. He assembled all the parts of the mobile and pushed the key button which connected the mobile to one number to whom he informed that the girl in possession of the said mobile is dead. The person, who received the information, informed him that she was daughter of a Railway Officer and they are immediately proceeding to the place of occurrence. The constable also informed the Station Master of Karisath which was communicated by him to the GRP Rail Police Station at Ara. S.I. of GRP at Ara, Raj Nath Sharma (PW-7) on receiving the information from the Station Master under the instruction of the Station House Officer ( for short „SHO‟) of the Police Station proceeded to Karisath Railway Station where Ashok Kumar Pandey (PW-4) handed over to him the mobile of the deceased within 10-15 minutes thereafter. PW-5 Dr. Sanjeev Kumar (Maternal uncle of the deceased) and Anupam Kumar Chandan (Mousa of the deceased) arrived at the said Station and disclosed that the name of the deceased as Sonu. In presence of PW-5 and Anup Kumar Chandan the death inquest proceeding (Ext-A/1) was carried out on which both of them signed. A topography (Ext- Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 3/45 A/2) of the place where the victim was found was drawn which is between the tracks of up main line and down main line. He recorded the statement of the constable (PW-4), the Station Master and then went to the Sadar Hospital Ara where the dead body was dispatched for post-mortem. He made over the charge of the case to the SHO Akhilendra Kumar Singh (PW-16) on 05.12.2007. Looking to the place where the dead body was found the Investigating Officer (for short I.O.), at a first blush, found it the case of unnatural death and, accordingly, UD case was registered on 1.12.2007 (Annexure-9). From the testimony of PW-16, it appears that in the light of the investigation carried out by him in which statement of few witnesses present either at the place of occurrence or at the hospital it came out a case of murder of the victim. A supervision note to this effect was submitted on 04.12.2007. On 05.12.2007, the father of the victim (PW14) was called to come and record statement. The following day i.e. on 6th December, 2007 the father of the deceased (PW 14) appeared before the SHO at 10 AM and filed the written report (Exhibit-6) which he got prepared by Banshidhar Jha who was accompanying him and signed by him on the basis thereof the U.D. case was converted into an FIR vide Ara Rail P.S. Case No. 73 of 2007.
(3) As per the FIR, the prosecution case, in nutshell, is that the informant was General Manager of Railways and was residing at Peoples Cop. Colony, Kankarbagh. The victim Sonu was Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 4/45 her only daughter aged about 20 years who was currently 3rd year student of Dental surgery in a Dental College in Patna. She was in love with the appellant for past 5-6 years and were gossiping with each other on phone. On 30.11.2007 at about 10 P.M. the victim came out of her house and sat on the motorcycle of the appellant parked nearby and drove away. This fact was disclosed to him by the two servants in the house namely Dharmendra (PW-1) and Baiju (PW-3). Sonu thereafter did not return. The family members started hectic search as the informant was not present at the house. Several phone calls were made to her as also to the appellant. Dr. Sanjiv (PW-5) and other family members informed him that Sonu had called them at 12.30 P.M. at night and had said that she is going with the appellant and will return only after her marriage with him. In the morning, at about 7.15 A.M., call was received from her mobile phone by the personnel of the GRP Ara which disclosed that Sonu was dead and her dead body was lying between the Rail tracks at Karisath Railway Station which is a small station few kilometers west from Ara junction.
(4) To understand the case, it is desirable to sketch the backdrop as unraveled by the prosecution at the trial through the testimony of the father (PW-14) and the I.O. (PW-16). Deceased was the only daughter of PW-14. Her father was the Senior Railway Officer then residing at Peoples Cop. Colony, Kankarbagh, Patna. 09 years after the birth of the deceased, PW-14 was begotten with a son Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 5/45 who was a minor boy. Sonu (deceased) was the 3rd year student in a local dental college. On 16.09.2007, she had fled home and went to Kolkata. On an information given to this effect by the father of the appellant, PW-14, with the help of PW-12, brought her home from the house of her English Teacher who used to teach her English while she was studying in a Public School in Kolkata where PW-14 was posted for some years. On return, she disclosed to her father about her ongoing love affairs with the appellant since last 5 to 6 years. She also disclosed that since last 5-6 months the appellant was avoiding her and was not agreeable to marry her as the appellant had come in the association of other girls. Sonu was blind in love with the appellant and was ready to do anything for her love. The father (PW-14) then decided on marrying her with the appellant and went to meet the father of the appellant with the proposal but he did not show any interest in the proposal.
(5) Upon conversion of the UD case into an FIR, the investigation ensued. The post-mortem report (Exhibit-2) of the deceased had already been obtained in which the Doctor (PW-10) found two major ante mortem injuries on her person. The following is the finding of the Doctor (PW-10) and his opinion:-
"(i) Lacerated wound over left side of skull and face with loss of bone, brain matter protruding through wound size 6"x 4"x cranial cavity deep, blood clot near left face and neck
(ii) Bruise over right arm area 3"x 1"
(iii) Right leg amputated through lower part (missing)
(iv) Left knee disorganized, lacerated wound Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 6/45 4"x2"x bone deep, no injury around private parts
(v) On dissection, he found skull part of temporal and parietal bone loss, clot found within cranial cavity, brain lacerated abdomen all visceras pale, uterus non-gravid stomach contains 22 ml partially digested food, bladder empty."
As noticed above, PW-7 registered the U.D. case, carried out the death inquest proceeding and continued with the investigation till 4.12.2007 in which a supervision note was submitted by Udai Nath Jha, Inspector GRP, Buxar (PW-15) suspecting that it was a case of homicidal death. This Officer also took over investigation from PW- 16 w.e.f. 18.03.2008. Upon completion of the investigation and finding the allegations/accusations true, the I.O. submitted charge- sheet against the appellant under Sections 302, 201 and 120B of the IPC whereon the learned Magistrate took cognizance of the offence against the appellant on 25.06.2007. The case record was committed to the Court of sessions on 25.03.2010 which, on transfer, came on the file of the learned Trial Court. One fact would be necessary to note. The appellant remained absconder when charge-sheet was filed on 25.06.2009. Nearly one year thereafter in 2010 the appellant surrendered in Court.
(6) At the trial, the prosecution examined altogether 16 prosecution witnesses, namely, PW-1 Dharmendra Kumar, PW-2 Amod Kumar, PW-3 Baijnath Oraon, PW-4 Ahok Kumar Pandey, PW-5 Dr. Sanjiv Kumar ( Maternal uncle of the deceased), PW-6 Rampati Sharma ( neighbor of the PW-14), PW-7 Rajnath Sharma, Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 7/45 PW-8 Shri Narayan Pathak, PW-9 Dr. Anita (Sister of PW-5), PW-10 Doctor Madan Kumar Pandey, PW-11 Naveen Chandra Jha ( Nodal Officer of Reliance Company), PW-12 Parshuram Singh, PW-13 Chandra Bhushan Rajak, PW-14, Virendra Kumar Singh (informant), PW-15 Udai Nath Jha and PW-16 Akhilendra Kumar Singh (I.O.).
(7) Considering the submissions made by the parties, the Court would classify the witnesses on the point of the victim last seen with the appellant. These PWs are PW-1 a domestic help, PW-2 a neighbour, PW-3 again a domestic help and PW-6 a neighbour of the informant. PW-8 is the Station Master of Karisath Railway Station who provided the list (Ext.1) of the train that passed the Station during the intervening night of 30.11.2007 and 1.12.2007. PW-10 is the Doctor who conducted the autopsy and certified his writing and signature over the post mortem report of the deceased (Ext.2). PW-11 has identified his writing and signature over the report issued by him and his verification and signature made over the tower location chart ( in 08 pages) as also blue print ( in 26 pages) and few more documents marked as Exhibits 3, 4 and 5. Exhibit 4 is the print out of the location chart generated from the system running in 8 pages. Exhibit 5 is the blue print out running in 26 pages. This witness has stated on the basis of the print out that on 30.11.2007 ( fateful evening) a call was made from Delhi through telephone no. 011- 28052348 to Patna on telephone no. 0612-3251900 at 23:32:24 hours which was diverted and received on mobile no. 9835029861. On 30th Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 8/45 November 2007 itself a call was made from telephone no. 0612- 3251900 to Delhi telephone no. 011-28052348 and the call was diverted/conferenced to/with mobile no. 9835029861. One relevant fact was disclosed by this witness that from the mobile of the appellant between 27.11.2007 to 1.12.2007 midnight the tower location of the appellant was at Delhi and another places but not Patna.
(8) PW-12 is a relative of the informant who is an employee of the Railways and was residing in Kolkata. He has deposed that on 17.2.2007 the informant called him that Sonu had fled from home and gone to Kolkata where she was staying with her English teacher. Whereafter he along with his wife went to the house of the English teacher and brought her back to his house. While she was being brought to the house Sonu called and talked umpteen times with the appellant. She was continuously saying that she would marry with the appellant. On the same evening her father (PW-14) and mother went to Kolkata and took her back to Patna on the following day.
(9) PW-13, the Inspector of GRP, Buxar, submitted charge-sheet in the case. His evidence was partially recorded and was deferred for further cross- examination after examination of other witnesses. Subsequently, he was neither examined nor cross examined. PW-15 is Inspector of RPF Buxar and he has identified his writings and signature over the requisition letter (Ext.7) as well as the Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 9/45 questionnaire (Exts 8/A and 8) handed over to the appellant and his father for providing answer by them. PW-16 has identified his writings and signature over the FIR of UD case (Ext.9). The endorsement (Ext.10) over the written application of the informant, writing of Baijnath Sharma and his signature over the FIR (Ext. 9/A), writing and signature of Kedar Prasad over the requisition letter (Ext.11), writing made over Sanha no.1 dated 1.12.2007 filed at Srikrishnapuri police station (Ext. 12), requisition letter and its reply issued and received by Srikrishnapuri PS are marked as Exts. 10/A and 13 respectively. He is the Officer who made over the notice to the appellant and his father and once again issued notice to the appellant and his brother Rajan Bhardwaj. These documents are on records as Exts. 14 and 14/A. Few more documents have been certified by this witness. This witness had gone to Delhi in January 2008 to verify the alibi taken by the appellant and perused the visitor register of New Sansad Bihar Cooperative Group Society (Block no.4 in Sector-22, Dwarka) as well as writing and signature of the brother of the appellant and other persons on whose behalf affidavits (Ext. 19 series) were handed over to him in Delhi in presence of an advocate of the appellant. He also made over/filed the request letter for providing cooperation from Connaught place police station to get the tower location report as well as diagrammatic presentation chart. These documents are marked Exts. 13/B, 20 and 21 respectively. Few more documents have been proved by him at the trial which may not be Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 10/45 necessary to be recounted. PW-16 has further identified the mobile set as well as the C.D as material Exts. (I) and (II) respectively.
(10) Upon conclusion of the evidence, the statement of the appellant was recorded under Section 313 of the Cr. P.C. in which he completely denied the allegations and stated in defence that he was at Delhi on the alleged date of occurrence. He, however, admitted without any hiccup that he was in love with Sonu and was ready to marry but the family members of Sonu were not ready for the marriage and she was tortured by the family members. At one time she had fled away from her house. On the date of occurrence, he did not accompany the victim. A list of witness in defence was provided and 05 DWs were examined. The affidavits (Ext.19 series) were filed in support of his claim of alibi.
(11) On careful scrutiny of the evidence adduced during the trial the learned Trial Judge by the impugned judgment came to the conclusion that the prosecution had proved its case beyond shadow of all reasonable doubt that the appellant had committed murder of Sonu on the alleged date after her last seen by the PWs with him and the dead body was thrown in between the rail tracks at Karisath Railway Station in order to deceive the prosecution as a suicidal death. It was so done by the appellant in conspiracy with another accused. Accordingly, he was convicted for the charge(s) proved at the trial and hence the appeal.
(12) Heard Mr. Surendra Singh, Sr. Advocate and Mr. Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 11/45 Ajay Thakur Advocate for the appellant, Mr. Sallaudin Khan for the informant and Mr. Satya Narayan Prasad APP for the State.
(13) Both parties have argued that the prosecution case hinges on the theory of the appellant last seen with the deceased on the night of 30.11.2007. It is, thus, a case based on circumstantial evidence. The first point at issue is whether the prosecution has been able to prove the fact that in the night of 30.11.2007 around 10 or 10.30 P.M. the victim came out of her house and sat on the motorcycle of the appellant standing around 100 meters away form the house near the community hall. As noticed, the prosecution has led evidence on this point through the testimonies of PWs 1 Dharmendra and PW-3 Baijnath. PW-1 was then residing at the ground floor of the house of PW-14. Both of them have claimed themselves servants/domestic help of the family of PW-14 and his father-in-law respectively. PW-2 Amod Kumar is the neighbour who was at the gate of his house when he could notice the victim coming out from her house and driving away with the appellant on a motorcycle parked near the community hall. PW-6 is another neighbour who has endorsed the theory of last seen of the appellant with the deceased on the fateful night (30.11.2007). PW-1 has claimed himself as driver of the father of the deceased. In his examination-in- chief, this witness has stated that as per instruction of deceased he proceeded to a shop for getting her mobile recharged and after 5 minutes, he saw the deceased going with appellant on his motorcycle. Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 12/45 He attempted to stop her also by raising his voice.
(14) PW-2 is the neighbour of the PW-14. He has stated that Sonu on the relevant night came out from her house and sat on the motorcycle parked at some distance from the house by the appellant and thereafter both of them drove away from that place. PW-3 is essentially an employee/servant of the father-in-law of PW- 14 who was then residing at Harding Road, Patna at a distance of 7 to 8 kms from the house of the PW-14. He was the devoted employee/servant of the father-in-law of PW-14 for about 18 to 19 years. If we read his testimony this witness has stated that he was instructed by the master (father-in-law of PW-14) to go in the evening to the house of the PW-14. It may be recounted here that on the relevant date PW-14 was not present at his house. He had proceeded to Deoghar for offering puja. He took an auto and went to the tempo stand in Kankarbagh and was thereafter proceeding to the house of PW-14. As he reached on the mouth of the road in front of the community hall he could notice the victim going along with the appellant on a motorcycle. PW-6 is another neighbour of the informant (PW14). In his examination-in-chief, he has stated that while he was at the gate of his house on the relevant time, he could see the victim Sonu leaving the house and going together with the appellant. These witnesses have only deposed on the point that on the relevant time they had seen the victim going on a motorcycle driven by the appellant. We would deal their evidence further at an Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 13/45 appropriate stage.
(15) The foremost point first to be examined is whether it was a case of suicidal death or accidental death or homicidal death of the victim (deceased). Before we proceed to examine this, we shall once again notice the finding of the Doctor (PW-10). Two major injuries were found on her person. One lacerated wound over left side of skull and face with loss of bone, brain matter protruding through wound size 6"x 4"x cranial cavity deep, on her left face and neck. Secondly, the right leg was found amputated at the lower part. Left knee was found disorganized and lacerated wound 4"x 2" x bone deep was found. There was also bruise over right arm area 3"x1". Those injuries were opined to be ante mortem.
(16) The next relevant aspect on this point is the position of the dead body found in the early morning by PW-4 and subsequently by the A.S.I. Raj Nath Sharma (PW-7), who, on information, reached the place of occurrence and took up the investigation. He is the officer who carried the death inquest proceedings and drew up the inquest report (Ext. A/1). He also drew up the topography (Ext. A/2) of the location where the dead body was found which is not much in dispute. The victim was found lying dead between the main up line and main down line. Her leg was touching the down line and head was towards the main up line. The Station at which the dead body was found is towards West of the City. Presumably, which is also the case suggested by the defence, she was Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 14/45 travelling towards Banaras or Delhi. If it was an accidental or suicidal death by jumping from the train the head of the body, in all probability, ought to be close to the down main line. This was, unfortunately, not the case. At this stage, we may also notice that the amputated part of the right leg was not found there. The Doctor also found left side of skull and face completely slashed off with loss of bone, inasmuch as, the brain matter was found protruding through wound. This sliced part of the face was also not found near the place of occurrence. The I.O. (PW-7), who prepared the inquest report, did not find mark of profuse bleeding near the dead body. It was only sporadic blood on stone besides the down railway track. He has not stated about any blood near the head of deceased ( para 9 of PW7). The prosecution case is that the dead body was detected on the following morning at about 6.30 AM. These evidence on record are not much in dispute.
(17) On a consideration of the aforesaid evident from record, we have no difficulty in concluding that it was not a case of accidental or suicidal death rather it was a case of homicidal death. The dead body was placed between the rail tracks to appear it as a case of suicidal or accidental death.
(18) The next relevant aspect is at what time the deceased actually was done to death. We shall again refer to the evidence of the Doctor (PW-10) who had held autopsy on the dead body of the victim on 01.12.2007 at 12.05 PM. On analyzing the findings, he has opined Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 15/45 the time elapsed since death between 12-24 hours. He also found partially digested food in the stomach of the deceased which may have been consumed between 4 to 6 hours before the death. The prosecution case is that at around 10 or 10.30 PM in the night of 30.11.2007, the victim had left her house on the motorcycle of the appellant. The evidences of PWs 1,2, 3 and 6 are on this aspect/point. Karisath Railway Station is few kilometers West towards Delhi from the Ara junction. Normally, if a person travels on road it will take 1 and ½ hours to reach Ara during day. If one is travelling on train then running time from Patna junction to Ara would be less than an hour, in addition to the stoppage. Karisath Railway Station is further away towards Banaras from the Ara junction. There is no evidence that the deceased had taken meal just before leaving the house. We have also the benefit of the electronic records to ascertain the time of death. Exhibits 3, 4 and 5 are the relevant records. The deceased received diverse calls on her mobile No. 9304915589 and also made few calls from her said mobile. The last call made by the victim to her friend over mobile no. 9304651141 was at 00:34:27 hours on 01.12.2007. The prosecution case is further that at 00:54:00 hours PW-9 Dr. Anita (Mousi) sent text message on her mobile phone to enquire about her whereabouts. Surely, the victim was alive till few minutes after the midnight of 30.11.2007 and 01.12.2007. The text message thereafter sent by PW-9 Dr. Anita at 00:54 hours on 01.12.2007 was not responded by her. These evidence leave no room for doubt in our Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 16/45 mind that she was done to death after the midnight of 30.11.2007 to 01.12.2007 i.e. in between 00:34:27 hours to 00:54:00 hours.
(19) In order to fix the place of occurrence which is another relevant point at issue we find from Exhibits-26 that the victim was receiving calls on her mobile and was also making few calls during the relevant night. The tower location of the last call made by her at 00:34:27 hour demonstrate that it was transmitted through the tower LW Patna 4 Bits-02 Nawada Thana and not through Tower location LW Patna 4 Bits-01 which covers Ara Railway Track. The I.O. (PW-16), in his evidence and also in Ext. 26, has stated that he obtained print out of Mobile No. 9304915589 of deceased and found that the said mobile was within the range of Bit No. 59 Hanumannagar 21 (Khagaul) 20 (Mithapur) 16 Raj Bhawan 3 ( Koilwar) and 02 Nawada Thana in the intervening night of 30th November and 1st December 2007. The evidence shows that the mobile calls of the victim was not through the towers situated along the Rail tracks but they were through the towers located along the road leading to Ara and onwards. It may be emphasized here that the last call was made/received from the cell phone of the victim was through tower at Nawada Thana which is a place close to Karisath Railway Station. To conclude on this point, we find the deceased was done to death close to Nawada which again is close to Karisath Railway Station.
(20) Since we have referred to the electronic records Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 17/45 produced/proved at the trial by the prosecution in order to record our conclusions on the aforesaid important aspects of the matter, it is desirable to consider the objection raised thereto by the defence. Mr. Singh appearing for the appellant has submitted that the electronic records such as call detail reports (CDR), tower location chart etc. (Exts. 3, 4 and 5) have not been authenticated. They are not admissible in evidence as the prosecution has failed to adduce a certificate relatable thereto as required under Section 65-B (4) of the Evidence Act (for short „the Act‟). In other words, those Exhibits, it has been argued, have not been properly proved in accordance with the provisions of the Act. Section 65 -B (4) of the Act reads as under:-
"In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) Identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 18/45 knowledge and belief of the person stating it."
(21) Before we consider the case laws relied upon by the defence in support of the aforesaid contention, we deem it proper to first examine the relevant oral evidence adduced by the prosecution on this aspect of the matter. The I.O. (PW-16) in course of investigation vide a communication dated 06.12.2007 (Ext.7) requested the Nodal Officer of the Reliance Communications to provide the call details and tower location chart etc. of the 05 telephones on 07 points. The Nodal Officer of Reliance Communication (PW-11), in his examination-in-chief, has stated that on getting a requisition from the I.O. he provided information regarding seven issues (Ext.3), all the call details (Ext. 4) and tower location details (Ext.5) to the I.O. This witness certified in Court upon going through those reports that they were charts/details furnished by him which were duly identified and attested by him. The relevant Exhibits have been also perused by us. They bear the seal of the Company on every page and the last page of each Exhibit bears the proper attestation of the Nodal Officer under his signature. In paragraph no.3, he is very specific when he says that these locations chart and CDR are system generated printouts which was duly attested and signed by him. While recording his evidence a formal objection was raised by the defence that they are not in accordance with the Information and Technology Act, 2000. However, in course of his cross-examination, the defence did not challenge the Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 19/45 authenticity of these documents and his deposition to the effect that they were generated from the system/computer as also their attestation/authentication by the Nodal Officer. Even a suggestion was not given to this witness that these details of electronic records were manipulated or fabricated and furnished. We cannot overlook the fact that during the official duty the I.O. had requested for furnishing these details of the electronic records and the PW-11 in course of his duty and in response to the said request made by the I.O. furnished those details of the electronic records by generating the printouts from the computer where these details are stored. These Exhibits, in our view, are duly proved and admissible piece of evidence as they bear the required certification/authentication from the authority who himself has taken the dock to support the same to which no serious objection was raised by the defence during his cross-examination.
Learned counsel for the appellant has relied on Anvar P.V. v. P.K. Basheer and Others; AIR 2015 SC 180 to emphasize and highlight that the essential ingredients of such certificate must accompany electronic records like CD, VCD, Pen Drives etc. which contains the statement which is sought to be given as secondary evidence when the same is produced in evidence. In absence of such certificate, the secondary evidence of electronic records would not be admissible in evidence. The Hon‟ble Supreme Court in para 15 ( at page 186 of the report) has further clarified that Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 20/45 in such case the relevant law provides safeguards to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, etc. In absence of such proper certification and compliance of the safeguards, the whole trial based on proof of electronic records may lead to travesty of justice. It has been submitted that the aforesaid certification is lacking in the present case, in so far as the electronic records (Exts. 3, 4, 5 and
16) produced at the trial.
On the other hand, it has been argued on behalf of the prosecution that the Nodal Officer (PW11), in his evidence, has stated that the print outs were generated directly from the computers of the Company and provided to the prosecution on a request made in writing in this regard by the I.O. Every page of those Exts. bear seal of the Company and at the last page of each document it is properly authenticated/attested by the Nodal Officer himself under his signature. It is not the case those CDR/ tower location charts etc. were obtained from a different system where they were kept/stored after obtaining the details/print outs thereof from the hard disc of the computer where such details are recorded. It was also argued that it is not a case of presentation of secondary evidence. Reliance placed on Anvar P.V.(supra) is inappropriate. On a consideration of the submissions made by the parties and after perusing the Exts., in the light of the evidence of the I.O. (PW-16) and the Nodal Officer of the Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 21/45 Company (PW11), we do not entertain any scintilla of doubt that they have not properly been proved and brought on record. These Exts. comply with the procedure prescribed under Section 65 -B of the Act which in itself is a complete Code. It may be pointed out here that Ext. 16 is the call details of the mobile of the appellant which was provided to the I.O. along with unsigned statement of the appellant through his lawyer Shri M.K.Rai. In course of examination of the I.O. the said CDR has been marked as Ext. 16 without any objection. There is not much substance in the contention of the appellant.
(22) Having held so, we shall now examine the complicity of the appellant in the crime. It has been argued with vehemence that it is a case of circumstantial evidence. What shall be the parameter of appreciation in a case like this has been adumbrated in the case of State through C.B.I. vs. Mahender Singh Dahiya AIR 2011 SC 1017. The present case falls short on many counts to prove conclusively the complicity of the appellant in the crime.
Learned counsel for the informant, on the other hand, has submitted that it is a case of the victim last seen with the appellant late in the evening and the following morning her dead body was found deserted between the two main rail lines at the Karisath Railway Station. The motive for committing this heinous offence has also surfaced distinctly at the trial. The conduct of the appellant would also be a relevant consideration to fix the guilt. In this connection, he has Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 22/45 highlighted that until filing of the charge-sheet in June 2009, the appellant had absconded. At least one year thereafter he surrendered. During this period, he never made any attempt to meet the parents of the victim or call them and console the untimely and tragic death of their only daughter. Until 1st week of January, no case of alibi was presented by him. The Court should ponder over these aspects of the matter also which prove only the guilt of the appellant.
We find from the evidence of father (PW14) that she was the only daughter in the family. The father has stated on record that on her return to home from Kolkata in September, 2007 she herself disclosed to the family that she was deeply locked in love with the appellant since last few years. She also disclosed that since last 5-6 months the appellant was completely ignoring her as he had come in the company of other girls. The father, on record, has stated that she was completely tilted in love with the appellant and that she could go to any extent for him. The appellant, in his statement under Section 313 Cr. P.C., has also admitted that he was involved in a love affair with the victim and, in fact, he wanted to marry her. We would immediately turn to the testimony of PW-12. He is a close relative of the informant and is Kolkata based. On getting information about the location of her daughter from the father of the appellant, the informant (PW14) immediately called and requested this witness to get his daughter from the house of her English teacher. This witness (PW12) and his wife went to the house of the English teacher of the deceased Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 23/45 and brought her back to his home. This witness has further stated that while she was being taken to his house, the victim continuously talked on her mobile with a person called Rajesh. The victim was adamant of marrying the appellant. PW-14, immediately, rushed to Kolkata and brought his daughter back to Patna on the following day. After having come to know that the victim was mad in love and was in cauldron he decided on marrying her with the appellant. With the said proposal he met the father of the appellant at his house but he did not show any interest in the proposal. The daughter was consoled by him that he would again give a try as the marriage season was away. We further find from the CDR (Ext.16) of the appellant that at least on and onwards 26.11.2007 he made repeated calls to the deceased on her mobile. The CDR reflects that on 26.11.2007, 21 calls were made by the appellant. Similarly, on 27.11.2007 18 calls were made, on 28.11.2007 10 calls were made, on 29.11.2007 19 calls were made and on the fateful day (i.e. 30.11.2007) 12 calls were made to the victim by the appellant. On 29.11.2007 he called and talked to the deceased, in all, for 144 minutes. On 30.11.2007 he talked to the deceased, in all, for nearly 88 minutes. The last call made to her before leaving the house was at 20:57:46; the duration was 14 minutes 29 seconds. Thereafter no call was made to her by the appellant between 21 hours of 30.11.2007 to 23:40:05 hours i.e. 11.40 pm. This is the time slot, according to the prosecution, when the victim was travelling with the appellant from Patna towards the place of Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 24/45 occurrence and thereafter 02 successive calls were made to her by the appellant at 23:40:05 hours and 23:45:36 hours. We find an important link here. Khushi is a friend of the victim. A call was received by the appellant from her mobile No. 9334645705 at 23:37:52 hours of 30.11.2007. Obviously, it was to verify about the whereabouts of the victim. Unfortunately, the I.O. did not consider it necessary to examine this aspect of the matter and record statement of Khushi but the lapse on the part of the I.O. would not frustrate the prosecution case. Definitely, it has not caused any prejudice to the appellant.
(23) We have another important link in the case. The father of the appellant wrote an informatory petition (Ext.12) on 30.11.2007 at 11.20 P.M. which was ultimately sent to Shrikrishnapuri Police Station and Sanha No. 01 of 2007 (Ext. 12) was registered at 00:30 hours on 01.12.2007. What is important stated by him is that he could know that the daughter of the informant had fled the house and the prosecution party was perpetrating torture on his son who is at Delhi as he is an advocate practicing in Supreme Court. We find from the call details chart (Ext.4) that from the mobile of Dr. Sanjiv (PW-5) at 22:01:35 hours on 30.11.2007 and by 02 PCO numbers at 22:27:48 hours and 22:29:14 hours on the same day the appellant had received call(s). If we look to the evidence of the PWs- 5, 1 and 3 it is seen that when the victim had left the home instruction was given to the domestic help/employees PWs 1 and 3 to contact the appellant from PCO. We do not find that any „Sanha‟ was earlier Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 25/45 lodged by the appellant or the father of the appellant with regard to the torture or holding out threats to life of the victim by her parents either in connection with the present incident of leaving the house by the victim in the night of 30.11.2007 or the previous incident of September, 2007 when the victim had gone to Kolkata and was brought back by the informant. There was also no threat held out to the appellant earlier. In order to ascertain whether, in fact, any threat was held out to the appellant, we have perused statement of the appellant made under Section 313 Cr. P.C. There is no whisper in this regard by the appellant. On the contrary, the apprehension expressed during the crucial time of the occurrence reflects the guilty mind of the appellant. On the contrary, it is rather explicit that from the night of 30.11.2007 the prosecution strongly suspected the hands of the appellant in alluring away the victim from her home.
(24) The submissions made at Bar on behalf of the appellant is that the victim was being tortured by her parents. The defence has proceeded on the theory that as a result of this threat to her life at the hands of the parents she committed suicide. The prosecution case was given a turn only after a letter written by the victim and addressed to the Chief Justice of Bihar came to fore. Exhibit I is the letter which was written by the victim. It is undated. In the letter the victim had expressed apprehension of danger to her life at the hands of her parents. Exhibit-H is the envelop in which the said letter was mailed. It bears the seal of the GPO, Patna dated Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 26/45 01.12.2007. Before we proceed to examine the relevancy and the legal effect of this letter, we may notice, that the victim prior thereto never ever filed any complaint before the police authority about such torture on her. She was student of the Dental surgery. She had courage to leave the home and go to the Kolkata on her own volition. There is nothing on record to show that any such application or complaint against torture on her at the hands of her family members was ever lodged with any authority. This is the solitary letter which appears to have been dropped either on 30.11.2007 or 01.12.2007. The victim was mad in love. She had earlier left the home and went to Kolkata in the middle of September 2007. If we believe the evidence of the father (PW14) and other relatives, she was continuously in touch with the appellant. The father has also deposed that she always used to talk to the appellant on her mobile phone and base phone. It seems the appellant had full emotional control over her. If the victim was angry with the behavior of her family members and was fearing torture on her she could have left the house even in presence of her father. Curiously enough, she chose a date for leaving the house at night with the appellant on the day when the sole adult male member (PW14) was not in the home as he had gone to Deoghar in connection with worship. The another male member of the family is 10-12 years old younger brother of the victim. The appellant was evading arrest and surrendered in the Court in spite of the I.O.(PW.16) having made frantic efforts. From paragraph no. 37 of the PW-16, we find that on Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 27/45 02.01.2008 he visited the house of the appellant in Patna where an advocate was present who handed over the unsigned typed statement of the appellant which, however, bears initial of the advocate present there on each page thereof. This was given to the I.O. under the forwarding letter of the advocate dated 02.01.2008 (Ext. 16). We have, therefore, perused his reply. The appellant, in his printed reply, had stated that on 30.11.2007 at about 10 PM he received a call from PW-5 about the victim fleeing away from her house. I was thoroughly perturbed and started calling umpteen times on her mobile phone. Thereafter he informed his father in Patna at about 11.15 PM on 30.11.2007. He sent a text message on the mobile of the victim to talk to him. Thereafter he received a call from Sonu which he disconnected and he again called her. We have already noticed above from the electronic evidence produced (Ext.4) that no phone call was made by the appellant to the victim on 01.12.2007 after 00.15.03 hours. In response to a Court question at para 116 of PW-16 he has stated that he personally verified from the message box of the cell/mobile phone of the victim (Sonu) wherein only one text message was received on 01.12.2007 at 00.54 hours which reads as under:
"sonu phone karo na. Chinta ho rahi hai sab logo ko. Anu Mousi"
He has categorically stated that this fact was noted in the case diary by him. Anu Mousi is PW-9. In para-7 Dr. Anita (PW-9) has stated that till 12.30 she tried to contact her on phone but when Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 28/45 she failed then at about 01 O‟clock in the night she sent a text message to her. In para -5 of her examination-in-chief she has stated that she received a call from her bhatiji Sonu (victim) and when she enquired about her well being she replied that they should not worry. She was going with Rajesh (the appellant) and will return only after marrying her. We further find that a call was given to appellant at 00:48:58 hours by Mobile no. 9899997538 belonging to the Mousi of deceased who was residing at Delhi. Obviously, this was a very crucial and fateful hour and perhaps she might have been done to death. From Ext. 16 it is pristinely clear that completely a false plea was taken by the appellant. He was not truthful.
(25) The prosecution case is based on circumstantial evidence and in order to complete the chain of circumstance, the prosecution has cited the evidence of four witnesses PWs 1, 2, 3 and 6 to show that the victim and appellant were seen together in the preceding fateful night i.e. 30.11.2007. So, we would like to discuss the evidence of these four witnesses. PW-1 is the driver of the informant residing in the house of informant itself on the ground floor. He has stated that at about 9.30 or 10 PM of 30.11.2007, he was asked by the victim to get her mobile recharged for which she had given him Rs 501/-. He, accordingly, proceeded to a shop and got it recharged. Immediately, after five minutes, while returning he saw the victim going with the appellant on his motorcycle. He has stated that she did not stop even after raising his voice and so he gave Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 29/45 information to this effect to the wife of informant. The wife of informant directed this witness to trace the victim at Rajendra Nagar Railway Station. This witness and the son of informant made hectic search immediately but in vain.
PW-3 is domestic help of the maternal- grandfather of victim and he was directed by him to go at the place of informant. This witness at the relevant time reached near the house of informant where he saw a boy standing with a motorcycle. The victim came at the place and proceeded towards north with the said boy on the motorcycle. PW-2 and 6 are neighbours of informant. They have their houses near the house of informant. Both of them have stated that the victim was seen going with a boy on a motorcycle. Out of these two witnesses, PW-6 identified the appellant in the dock. The PW-2, however, did not disclose the name of the appellant. We have carefully examined the evidence of all these four witnesses. We find that their evidence are consistent on the point of leaving of the house by the victim. They all had occasion to see the victim going on the motorcycle with the appellant. PWs-2 and 6 are neighbours having their own house adjoining to the house of informant. In the evidence of all the witnesses, it has come that in between 9.30 PM to 10PM they were present near the house of informant on the road. PW-1 at para 61, has stated that after getting the mobile recharged, he came back near „Ashirvad Community‟ hall and started watching a marriage procession. This community hall situates towards west at a Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 30/45 distance of 200 meters from the house of informant. PWs 2 and 6 have stated that they were standing at the gate of their house at the relevant time. Obviously, they would have come at their gate to relax or watch the marriage procession. They all are acquainted with the family members of the informant. PW‟s 1 and 3 are acquainted with the appellant from before as he used to visit at the place of maternal grand father of the deceased. They all have stood to their exhaustive cross-examination and nothing substantial has been elicited to discredit their testimony. The witnesses have in very natural way reported to the mother of victim about the manner in which deceased left the house with the appellant on his motorcycle. They have no axe to grind against the appellant. We find that on the version of these four witnesses the mother and family members of the deceased started searching the appellant at all the places where the appellant and deceased were supposed to be available. These four witnesses appear to be very partial as they had no plausible reason to lie against the appellant or depose in favour of informant for any gain or benefit. The evidence of all these four witnesses convincingly establishes the fact that the appellant took/persuaded the deceased to leave the house with him at around 10 PM of 30.11.2007. This is the last seen when the appellant was seen by these four witnesses taking away the deceased on his motorcycle. The contention of appellant in this regard is that, had the appellant taken the deceased from her house, why not his name was disclosed to the police by the PW-1 and PW-5 who had Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 31/45 visited at Karisath Railway Station to see the dead body. The inquest report was prepared in their presence and the police wrote the cause of death as accidental and so the witnesses ought to have narrated the said fact. To find out the truth, we further perused the cross- examination of all the three witnesses who were present at Karisath Railway Station at the time of inquest report. Their evidence is that the police neither recorded their statement nor they had any occasion to say anything in this regard. The evidence of PW-5 at para 15, is explicit that, on the dictate of constable, he and his brother-in-law PW-5, put their signature on a paper over which the name of Sonu was found mentioned. They were told by the police that their signatures were required for getting the post-mortem on dead body conducted. The witnesses have stated that they were mentally very perturbed and put the signatures as required by police for post-mortem examination. We, at this stage, would like to discuss corroborative evidence which are call details. Ext. 16 is the call details of mobile phone no. 9334155358 belonging to the appellant. This call detail has been furnished by the appellant and it was proved by I.O. on behalf of prosecution. It appears that the appellant gave 09 calls on the mobile of deceased on 30.11.2007 right from 00:53:40 hours (midnight of 29 and 30th November,2007) to 20:57:46 hours and further three consecutive calls from 23:40:05 hours to 23:59:03 hours. From these calls we gather that the appellant did not call any other person during the period from 20:57:46 hours to 23:40:05 hours. According to Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 32/45 prosecution witnesses the appellant took the victim at around 10.00 PM to 10.30 PM and since then the victim was with him and within his control. The appellant then gave calls on the mobile of victim at 23:40:05 hours. This shows that they were together till 23:40 hours. The distance of Kankarbag (Patna) to Karisath (Ara) Railway Station appears to be around 65 KM, the said distance can be covered within one or 1.30 hours by rail and road. Obviously, the appellant was either on travel or was in company of deceased till 23:40 hours. We further find that the appellant made a call at 00:15:08 hour of 1.12.2007 which was the last talk between the deceased and appellant. The next call was made on following morning at 9:17:03 hour which presumably was received by constable/police who had recovered mobile near the dead body. This call was for a period of 48 seconds. The first part of Ext. 16 is typed statement of appellant wherein he has also stated that he made a call on the following morning and got information from a RPF constable that she had died. The appellant did not enquire about the death of deceased from the said constable or anybody. It is not expected from a person who was so much in love for her and used to talk all the day and night would not take any interest about her as to how and what happened to the deceased. He did not even call the parents to console them. The I.O.(PW16) at para 22, has stated that most of the calls ( in and out) made by the appellant were either on the cell of deceased or on 9334645705 belonging to a girl namely Khusi. The last call from the cell of Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 33/45 deceased was made on 9304651141 at 00:34:27 hours. This cell belongs to Anuja (Ext.16). From the call details of appellant, it further appears that after last call of deceased a call was made by mobile no. 9304651141 (Anuja) to the appellant at 01:07:06 (call duration 35 seconds). The appellant then received a call from Mobile No. 9811588811 at 01:10:44 hours. Here, we find that the I.O. has missed to examine one of the important link as to what was the role of owner of Cell No. 9304651141. Referring to the location tower of the Cell of appellant, the learned counsel gave much emphasis that the appellant was at Delhi which stands established from location of tower where the mobile was being used by the appellant. In this regard, we would like to refer the evidence of PW-16, at para-48 and Ext. 21. The PW-16 at para 46 to 48 has stated that in course of investigation he visited Delhi to ascertain the location of two tower situated at Dwarka Delhi and L.W. Delhi. From his evidence, it appears that the Cell No. 9334155358 ( of appellant) remained static at one place. By using another phone one can talk any where and the tower location of said Cell will not appear on record. The Nodal Officer of Reliance Company demonstrated and explained as to how one can talk to a person of different place without reaching/connecting Tower location. The diagrammatic presentation explaining possibility of a person at different place and without touching tower of another place can talk each other with the help of another cell phone. The diagrammatic presentation has been marked as Ext. 21. Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 34/45 We, thus, find that a person at Patna by adopting the said method can very well talk with a person of same place by another Cell by placing his mobile at different place i.e. under different tower location.
(26) So far delay in lodging FIR is concerned, we find that the dead body of deceased was seen at Karisath Railway Station at 6.30 AM on 01.12.2007, and on the report of PW-4, Rail P.S. (Ara) case No. 42 of 2007, was registered on the same day. The I.O. Ram Nath Sharma (PW7) conducted investigation. On the same day i.e. 01.12.2007, the family members reached at Karisath Railway station identified the dead body. The Rail Police, Buxar, during supervision, found the death of deceased homicidal and directed the I.O. to make over the charge of this case to SHO of Rail Police. The SHO (PW-16) on 5.12.2007 on phone called the father of deceased, the informant (PW14) at Police Station for recording his statement. The informant reached at Ara Rail P.S. on 6.1.2007 at 10.30 PM and submitted a written report on the basis of which the SHO converted the said U.D. case into Rail P.S. case no. 73 of 2007, for the offence under Sections 364,302, 201 and 120B of the IPC ( vide Ext. 10 and para-7 of PW-16). The SHO, immediately, visited at the residence of informant at P.C. Colony Kankarbag and recorded his restatement on the same day i.e. 6.12.2007. We further find that on the date of occurrence the informant (PW14) was not at his residence as he was on the way to Deoghar on a religious trip. He, on getting information about the unnatural death of his daughter, reached Patna on 1.12.2007. Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 35/45 PW-14 at para-8, has stated that the SHO of GRP Ara (PW16) called him on 05.12.2007 to give his statement on 06.12.2007 and, accordingly, he reached at Ara at 10.30 AM. He has further stated that the dead body was cremated in the evening on 01.12.2007. He was shocked much due to unfortunate and tragic death of his only daughter and he remained confine to bed as per advise of doctor. He made contact with SHO on 2nd and 3rd December, 2007 who assured him that investigation was going on and he would be called by them when required. The police gave a call on 5.12.2007 over the phone and thereafter he reached PS and gave written report. The informant had no occasion to suspect the conduct of police. From the evidence on record, we find that the informant and his family members had full knowledge and information that the deceased had affairs with the appellant and no sooner than the victim left the house and family members were informed about her going with the appellant on a motorcycle, they started searching. They even went to the house of appellant and gave repeated calls on his mobile. The father of appellant was fully apprehensive that his son might be implicated by the family members in the event of any mis-happening. The father of appellant lodged a „Sanha‟ with local police at the late night at 11.30 pm. In these backgrounds, it cannot be said that the delay in submitting written report after four days was a deliberate act and the written report was an after thought only to implicate the appellant. The informant was aware of the fact that a case has already been Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 36/45 registered on the same day by R.P.F. and investigation was going on. Moreover, he was assured by police that they would call him if required. Further, the grieved father was residing at Patna at a distance of about 60-70 kms from the place of occurrence. So, considering all these facts, we find that the delay in submitting written report was natural and it is well explained and on this ground the prosecution version cannot be doubted.
(27) The appellant has taken a plea of alibi also. In Ext. 16 (unsigned statement of appellant) he has stated that he had gone to Delhi on 10.11.2007 and since then he was there. In the night of 30.11.2007, a small party was organized at his residence at Dwarka in Delhi to celebrate the birth of his niece which had taken place on 22.11.2007. In support of this contention 6 affidavits (Ext. 19 to 19/E) have been placed for consideration. From the evidence of PW-16 and documents on record, it appears that the I.O. had visited Delhi at the place of full brother of the appellant on 2.1.2008 in connection with investigation, where the affidavits (Ext. 19 to 19E) were handed over to him. These affidavits are alleged to be of those persons who being close friends and relatives had attended the party in the night of 30.11.2007. On perusal of these affidavits we find that they have stated that the appellant was seen in the said party on 30.11.2007 at his house in Delhi. The contention of appellant is that these affidavits which have been produced by prosecution are admissible under Section 294 Cr. P.C. and they also constitute evidence under Section Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 37/45 58 of the Evidence Act. The prosecution has admitted the said affidavits and they did not wish to cross-examine the said witnesses.
On perusal of evidence of PW-16 at para 42, we find that the I.O. has stated that those six affidavits were provided to him at Delhi at the residence of brother of appellant. The I.O. attached those affidavits with the case diary. At the time of his examination- in- chief, these have been marked as Exts. 19 to 19/E. None of the persons swearing affidavit proved the document by appearing in Court. It is well -settled principles that unless the person who has sworn affidavits, came to the witness box and say that the contents of their respective affidavit were as per their statements and those statements were made on oath, the said affidavit cannot form part of the evidence and cannot be read in evidence. The appellant cannot take benefit of the provisions under Section 58 of Evidence Act in view of the fact the prosecution did not admit the contents of said documents/affidavits. These documents are not the legally proved documents and so are not admissible in evidence. The appellant during his statement given on 3.5.2011 under Section 313 Cr.P.C. has not taken the plea of alibi by stating that on the relevant date he was at Delhi attending a dinner party which was organized to celebrate the birth of his niece. After his statement, the defence examined five witnesses on different issues till 24.4.2013. During this period of two years he did not examine even a single witness on the point of his alibi or his presence at Delhi on the relevant date. In evidence it has Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 38/45 come that the appellant is an advocate at Delhi. The father of appellant while lodging „Sanha‟ (Ext. 12) at local police station of Patna has also stated that his son is at Delhi as he happens to be an advocate at Supreme Court. In the said Ext.12 the father of the appellant has not said anything about any dinner party organized at the house his son. Had there been any party at Delhi and participation of the appellant, then it would have been written in the said Sanha. Obviously, the plea of alibi was made as an after thought after more than one month of the occurrence. Besides that the appellant has not produced any court paper to show his presence in any case before Supreme Court or any photographs of the dinner party. The I.O. has produced Ext. 18 which is copy of visitor register of Nav Sansad Bihar Housing Flat where the appellant has claimed his presence on 30.11.2007 On perusal of Ext. 18, we find that not a single person had visited to the flat of the appellant/his brother on 30.11.2007. Out of six persons who sworn affidavits, one is brother of appellant and two are occupants of two flats in the same block. The other three persons relating to Ext. 19,19/A and 19/D are residents of different area whose signature ought to have appeared in visitors register, had they attended the dinner party.
The appellant, admittedly, is an advocate aged about 32 years. In his statement given under Section 313 Cr. P.C. he has disclosed his profession as an advocate. At the time of giving statement although after 3 ½ years of occurrence, has not whispered Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 39/45 about his alibi. He has simply stated that he was at Delhi from 10 November, 2007 to 10 December, 2007. He had affairs with the deceased and was inclined to marry her but her family members were not ready and they used to torture her. Neither the appellant nor his father (while lodging „Sanha‟ Ext. 12) says that appellant was in the party at Delhi on the fateful day. The appellant has, thus, completely failed to discharge the onus to prove the case of his alibi.
According to learned counsel for the appellant, the deceased had posted a letter Ext. I to the Hon‟ble Chief Justice of Patna High Court wherein she expressed apprehension of her life at the hands of their parents/family members. On examining the said letter, we find that it bears seal of G.P.O. Patna dated 1.12.2007. The said letter reached Patna High Court and the Registrar General vide letter no. 41 dated 6.12.2007 (Ext. 23) forwarded the same to the D.G.P. Patna for information and taking appropriate step in the matter. From Ext. 23/A, it appears that the said letter (Ext. I) was received in High Court either on 4th or 5th of December, 2007. The appellant and deceased were very close to each other and from the evidence of PW-14 it appears that his daughter could have gone to any extent and earlier she had gone to Kolkata on 16.9.2007 at the instance of appellant (para 11 of PW-14). The appellant was in dominating position and taking the confidence of the victim he might have got the letter (Ext. I) written for using the same at appropriate time if required as the same does not contain the date or the place Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 40/45 from where it was written. From the language of this letter it appears that the letter was got drafted keeping in mind that the appellant would derive the benefit in legal battle in future. From the call details (Ext. 16) it appears that the appellant gave 13 calls to the deceased through his mobile and had talked about one hour 30 minutes in total. We further find that on 29.11.2007, the appellant gave 19 calls and talked 2 hours 45 minutes in total on 29.11.2007. The call details further show that the appellant used to call only the deceased as he did not call any other person on 29 and 30th November, 2007. This fact also suggests that he might be cleverly using another cell /phone to talk with other persons. Learned counsel for the appellant further submitted that no reliance can be placed on the evidence of PW-6 Rampati Sharma who allegedly has stated that on the date of occurrence he was standing at the gate in front of his house and saw the victim going with the appellant on his motorcycle. The statement of this witness was recorded by the police during investigation after much delay. In this regard, we carefully examined his evidence. From cross-examination, we find that this witness at para 22 of his evidence has stated that his statement was recorded by the police at his residence after 12 or 13 days of the occurrence. The U.D. case was converted into the present case on 6.12.2007 and the statement of this witness was recorded on 12th December, 2007, as it appears from para 24 of his evidence. There is no suggestion that his evidence has come after a belated stage. The I.O. has been cross-examined at length but Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 41/45 nothing has been asked from the I.O. as regard the recording of statement by him after 06 months of the institution of the case. Thus, considering the circumstance, nature of the case and the manner of investigation conducted by the I.O., we do not find any reason to disbelieve the evidence of this witness, particularly, in view of the fact the attention of I.O.was not drawn on this point.
(28) Considering the above facts and circumstances, we hold that this letter Ext. I was got drafted by the appellant by taking the deceased in full confidence much earlier to the occurrence and used the same only to create a defence or give a deceptive look to the crime or confuse the investigation. Further, the contention of the appellant that his implication was made in this case only after the said letter surfaced is also not well grounded. It is seen from the evidence on record that the prosecution was after the appellant from the time the victim had left the house on the night of 30.11.2007. The letter (Ext.I) had not surfaced on the scene when the FIR was registered (on conversion) at 10.00 O‟clock on 6.12.2007 as the letter (Ext.I) was sent to the D.G.P., Bihar directly by the registry of the High Court on 6.12.2007 definitely after the working hours of the Court began.
The argument of the prosecution is that the proximity of time between the victim last seen with the appellant and the recovery of her dead body on the following morning is a definite clue to establish the guilt of the appellant in the crime. However, we Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 42/45 are of the view that a conviction cannot be recorded merely on the ground that the accused was last seen with the deceased. The other relevant circumstance appearing from the record should also point to the guilt of the appellant such as the conduct of the accused. In this connection, we may usefully refer to the observation of the Hon‟ble Apex Court in Dharam Deo Yadav versus State of Uttar Pradesh (2014) 5 SCC 509. In para 19 thereof the following has been observed :-
"It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other person coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company...........:"
(29) No plausible explanation has been offered by the defence as to whether the accused parted company in between her going with the appellant-accused and the recovery of the dead body in the wee hours of the following morning except offering the plea of Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 43/45 alibi which, as noticed, was taken at least a month after the occurrence. The circumstances proved at the trial conclusively prove the guilt of the appellant excluding any other hypothesis consistent with his innocence. Under law, it was obligatory on the part of the appellant to explain the circumstances in which she parted company with him as the victim had accompanied him on the relevant night.
To sum up the following circumstances pointing to the guilt of the appellant have strongly emerged through the evidence on record:-
(i) It is an admitted position that the appellant was locked in love affairs with the victim since last few years inasmuch as the accused-appellant had full control over the emotions of the victim.
(ii) The appellant was avoiding the victim since last 5-6 months prior to the present occurrence as he had come in the company of other girls.
(iii) The appellant was in constant touch with the victim since last three days prior to the occurrence as evident from call details (Ext. 16 and Ext.4)
(iv) The victim was seen leaving the house with the appellant on the night of 30.11.2007 around 10 PM ( vide PWs 1, 2 , 3 and 6). The prosecution side immediately started searching the appellant and made him repeated calls.
(v) The appellant instead of immediately appearing on the scene remain absconded inasmuch as the charge-sheet was laid in Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 44/45 the year 2009 showing him an absconder.
(vi) The motive on the part of the appellant to do away with the victim has also emerged at the trial.
(vii) The father of the appellant was not willing to accept the victim as his daughter-in-law (vide PW-14; para-92).
(viii) No „Sanha' or information about torture on the appellant by the prosecution was ever lodged except on the crucial time and date of occurrence ( vide Ext. 12).
(ix) The victim had never lodged any complaint or „Sanha‟ against her parents for having perpetrated torture on her or fearing danger to her life at the hands of her parents. Except the „Sanha‟ (Ext. 12) and the letter (Ext. I) which was dropped either on 30.11.2007 or 1.12.2007 just on the nick of the time.
(x) A plea of alibi was taken by the appellant belatedly in the 1st week of January, 2008 (at least one month after the occurrence) when the Investigating Agency reached Delhi for interrogation of the brother of the appellant as well as the appellant. Such plea was not taken in the „Sanha‟ (Ext. 12) filed by the father of the appellant at the dead of intervening night of 30.11.2007 and 01.12.2007 inasmuch as the accused-appellant has also not stated in his 313 Cr. P.C. statement that on the relevant evening/night he was in Delhi participating in a party hosted by his brother.
(xi) The appellant did not make any call to the victim between 20:57:46 hours to 23:40:05 hours on 30.11.2007 which is the Patna High Court CR. APP (DB) No.928 of 2014 dt.06-03-2017 45/45 time slot when he was traveling with the victim towards the place of occurrence.
The aforesaid circumstances, distinctly illuminated at the trial conclusively prove the guilt of the appellant of having committed the murder of the deceased under a pre hatched conspiracy.
(30) In view of the discussions made above, we find and hold that the prosecution has been able to prove the charges against the appellant beyond the periphery of any reasonable doubt. The conviction recorded against the appellant by the trial Court is upheld.
The appeal is dismissed.
(Kishore Kumar Mandal, J) I agree.
(Sanjay Kumar, J) Shyam/-
AFR/NAFR NAFR CAV DATE 20-02-2017 Uploading Date 06-03-2017 Transmission 06-03-2017 Date